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| | Guardianship Division Case Digest Issue 1 of 2020
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| The Guardianship Division Case Digest provides a summary of relevant and interesting case law of significance to the work of NCAT's Guardianship Division.
This issue feature case summaries of decisions from the Guardianship Division, NCAT Appeal Panel, Supreme Court of New South Wales, New South Wales Court of Appeal, and other jurisdictions.
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| NCAT Guardianship Division |
| DTX [2019] NSWCATGD 11
M D Schyvens, Deputy President
Facts Since 16 March 2015, the Public Guardian had been appointed to make certain substitute decisions on DTX’s behalf. DTX had diagnoses of dementia with Korsakoff’s syndrome, chronic alcohol abuse and ischaemic heart disease. The present decision was an end-of-term review, following a three-year renewal of the order in May 2016.
Evidence produced by the Public Guardian and staff at the care facility at which DTX resided indicated that DTX was unable to understand the nature of the proceedings, or form or articulate a view. The Tribunal was satisfied on that evidence that the hearing should proceed in DTX’s absence.
The Public Guardian recommended that the guardianship order should be allowed to lapse, as it was the “least restrictive option”. The representative from the care facility agreed with this position, however, added that there was an ongoing need for a guardian to be appointed to make decisions as to DTX’s health care and to provide consent to medical and dental treatment
Issues The main issue in these proceedings was whether or not a further guardianship order should be made.
Legislation and case law considered Section 14 of the Guardianship Act 1987 (NSW): (1) If, after conducting a hearing into any application made to it for a guardianship order in respect of a person, the Tribunal is satisfied that the person is a person in need of a guardian, it may make a guardianship order in respect of the person.
(2) In considering whether or not to make a guardianship order in respect of a person, the Tribunal shall have regard to:
(a) the views (if any) of:
(i) the person, and
(ii) the person’s spouse, if any, if the relationship between the person and the spouse is
close and continuing, and
(iii) the person, if any, who has care of the person,
(b) the importance of preserving the person’ss existing family relationships,
(c) the importance of preserving the person’s particular cultural and linguistic environments,
and
(d) the practicability of services being provided to the person without the need for the making of such an order.
ZGV v ZGT [2018] NSWCATAP 55 at [22]-[23]:
[22] With due respect to the Tribunal, we think the statement - ‘The Tribunal is obliged to make ‘the least restrictive order’ consistent with the safety and welfare of the person in relation to whom the application is brought’ is not an accurate paraphrase of the nature of the discretion given to the Tribunal by the Act. It misdescribes the approach required by s 14(2). The first sentence of para [12] compresses into a combined proposition the first two general principles set out in s 4, which, to reiterate, are:
(a) the welfare and interests of such persons should be given paramount consideration,
(b) the freedom of decision and freedom of action of such persons should be restricted as little as possible.
[23] The Tribunal’s paraphrase excludes from view the other considerations in s 4, and makes no reference to the mandatory considerations found in s 14(2). It also tends to suggest that there is an all-encompassing principle of least restriction.
MAQ [2016] NSWCATGD 70 at [34]:
…it is flawed logic to suggest that where the nature of the subject person’s decision-making disability is such that they are effectively unable to make decisions of significance on their own behalf, not being subject to guardianship order is the “least restrictive option”. Absent a guardianship order, decisions will continue to be made on behalf of Ms MAQ on an informal basis. The question is who will make those decisions
Application/Analysis The Tribunal emphasised that the focus of its decision would be on DTX’s welfare and interests, having regard to all the considerations in ss 4 and 14 of the Act: [33].
It was evident that DTX needed ongoing decisions to be made for him, because of his declining condition, and the need for substitute consent to treatment: [35].
Due to his age, as well as physical and cognitive decline, it was also necessary that a health care function be given to a guardian, in anticipation of the possible need to make end-of-life decisions: [36]-[37].
The Tribunal continued the appointment of the Public Guardian, as no private person was available to be appointed: [39].
The Tribunal disagreed with the Public Guardian’s submission that a 12 month order should be made as it would be the “least restrictive option”, and favoured the position of the care facility representative, who said that there was no evidence DTX’s needs would decrease over time, deciding that a term of three years was appropriate given the level of DTX’s incapacity: [41]-[42].
Conclusion The guardianship order for DTX was renewed, appointing the Public Guardian for a period of three years
Read the decision on the NSW Caselaw website.
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| TZO [2019] NSWCATGD 18
25 October 2019 - A D Suthers, Principal Member; Dr C M West, Senior Member (Professional); J L Newman, General Member (Community)
Facts The Tribunal received an application on behalf of a hospital where the subject person (“TZO”), who was 35-weeks pregnant at the time, was being treated. The application sought orders for the appointment of a guardian for TZO, in circumstances where she had an intellectual disability, with diagnoses of personality disorder with borderline traits, generalised anxiety disorder and substance-induced psychotic disorder. TZO was currently living in crisis accommodation, and had a history of disengaging with treatment.
In the application, the applicant expressed concern that in the event the TZO was given notice of the guardianship proceedings, she would disengage from ongoing antenatal treatment, and thereby put her welfare and interests, and that of her baby, at risk.
The Tribunal appointed a separate representative and then held a preliminary hearing to determine whether or not it should proceed with the application in the absence of notice to TZO.
Issues Should the Tribunal proceed to conduct the hearing of the guardianship application in TZO’s absence?
Analysis The Tribunal weighed the views and concerns of the hospital, the facility at which TZO was receiving crisis accommodation, the separate representative appointed for TZO, and the Public Guardian: [8]-[19].
Given TZO’s fear of hospitals and general distrust of authority, and weighing TZO’s prima facie right to receive notice of the hearing and participate in it against the risk to her in giving her notice, the Tribunal decided that proceeding without notice would likely exacerbate her fears, and had as much potential to do harm to TZO as it would promote her welfare and interests: [20]-[22].
The Tribunal said at [22]-[23]:
[22] Clearly, if we proceeded to make any order today that was going to have any effect, given that TZO would not know of it and in all likelihood not approve of it, the order would have to have significant and potentially oppressive functions such as giving a guardian the ability to make accommodation decisions and ask others to bring those decisions to effect, as well as, potentially, overriding her objections to medical treatment.
[23] For TZO to have those decisions made without her consent by someone appointed without her knowledge was, in our view, unlikely to be beneficial to her welfare and interests, even balancing the risks to which she is subject.
On these bases, the Tribunal adjourned the hearing to be conducted on notice to TZO, noting that it had not been part-heard.
Conclusion The hearing was adjourned.
Read the decision on the NSW Caselaw website.
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| KNQ [2019] NSWCATGD 19
24 October 2019 - A R Boxall, Senior Member; A M Matheson, Senior Member; E Lyne, General Member
Facts The subject person (“KNQ”) had a diagnosis of dementia, and lived with one of her sons (LAB) in the ACT. LAB is one of her five surviving children and was the applicant in two of the three applications subject of the hearing. There was significant conflict between the siblings as to the appropriate accommodation and care arrangements for KNQ.
The applications were as follows: 1) a review of the making and operation and effect of an enduring power of attorney (EPOA) made by KNQ in favour of one of her other sons (SQB); and, 2) two requests to review a guardianship order made by the Tribunal on 8 April 2019, appointing the Public Guardian as KNQ’s guardian for a period of 12 months – these requests for review were made by LAB and the Public Guardian, respectively.
KNQ had previously been removed several times from her accommodation in NSW, or from hospital in NSW to Canberra, by LAB, without the consent of the enduring guardian, or guardian (as the case may be), appointed at the relevant time. She was returned to NSW a number of times, but on one occasion after the hearing on 8 April 2019, she was brought to Canberra with LAB and had not returned.
The Public Guardian (KNQ’s guardian appointed immediately prior to the time of this latest removal) had power to make decisions about her accommodation (including a power to ask others to assist others to assist in compliance with those decisions), among other functions, but despite this, did not take action to return her to NSW.
The Australian Capital Territory Civil and Administrative Tribunal (ACAT) made orders on 20 August 2019 appointing LAB and SYB (another adult child of KNQ, living in Canberra) as KNQ’s guardians and managers, for two years, and purportedly revoking the EPOA made on 25 July 2017 in favour of SQB, on the grounds that KNQ lacked capacity to make it.
Notably, the NSW Public Guardian did not attend the ACAT hearing, despite being KNQ’s guardian at the time.
Issues Should the Tribunal review the EPOA?
On review of the guardianship order, should the Tribunal make a further guardianship order, and if so, what order should be made? More specifically, whether, in view of the ACAT orders, the Tribunal’s order dated 8 April 2019 appointing the Public Guardian is superfluous and should be revoked?
Legislation and case law considered Section 36 of the Powers of Attorney Act 2003 (NSW):
(1) Tribunal may review making or operation and effect of power
A review tribunal may, on the application of an interested person, decide to review the making, revocation or the operation and effect of a reviewable power of attorney or not to carry out such a review.
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Section 50 of the Powers of Attorney Act:
(1) A power of attorney is not terminated by the estate of the principal becoming subject to management under the NSW Trustee and Guardian Act 2009 (a managed estate).
(2) Subsection (1) has effect subject to the terms of the instrument creating the power.
(3) A power of attorney is suspended while the estate of the principal is a managed estate.
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Section 14 of the Guardianship Act (see above).
Analysis Review EPOA
The Tribunal decided to not review the making and operation and effect of the EPOA, for a number of reasons, at [24]-[25]: - If ACAT’s decision to revoke the EPOA was legally competent, then the EPOA has already ceased to exist.
- If ACAT’s decision was beyond ACAT’s jurisdiction, it follows that:
- The EPOA subsists and;
- LAB and SYB have power as managers to manage KNQ’s affairs, including the power to undertake investigations into the historical management of KNQ’s affairs;
- SQB has a potentially competing interest as KNQ’s attorney in NSW, because the ACAT order does not operate to suspend the operation of the EPOA under s 50 of the Powers of Attorney Act 2003 (NSW), as it does not render the estate a “managed estate” as defined under that Act;
- If SYB and LAB wished to review the EPOA (in NSW), they could apply for recognition of the ACAT order in NSW, which would bring the estate under the definition of “managed estate” in the Powers of Attorney Act.
Requested review of Guardianship Order
There was no fresh evidence as to KNQ’s condition since the previous NCAT order. On the basis of the evidence previously before NCAT, and bearing in mind ACAT’s findings on 20 August 2019, the Tribunal was satisfied that KNQ continued to have a disability, namely dementia of mixed aetiology, which rendered her unable to make important life decisions: [32]-[36].
The matter of most controversy was the question of whether NCAT’s guardianship order should be revoked. The applicant and the Public Guardian both supported the revocation of the order on the basis that it was, as a result of the ACAT order, duplicative and unnecessary: [40]. The applicant further argued that the appointment of him and his brother as KNQ’s guardian is preferable to that of a government body: ibid.
While acknowledging the undesirability of having two competing orders from fraternal tribunals, and the respect owed by NCAT to ACAT as another exercising a similar jurisdiction, the Tribunal decided that it was necessary for the guardianship order to remain in place, for two reasons (at [41]), both concerning deficiencies in material evidence considered by ACAT:
1. Evidence given to ACAT by another sibling, CZO, misinforming ACAT as to SQB’s wish to no longer be KNQ’s enduring guardian;
2. The absence of any view given by the NSW Public Guardian.
Identity of guardians
The Tribunal was unable to consider SYB’s suitability to be appointed, as he did not participate in the hearing: [42].
While acknowledging LAB’s affection for his mother (at [42]), the Tribunal did (at [43]) consider him to be unsuitable on the bases that he: - Had shown himself to the Tribunal as being impetuous in decision making;
- Had a tendency to dismiss professional opinion out-of-hand, if it did not confirm to his preferred narrative;
- Had absolute certainty of his knowledge of what was best for his mother;
- Was unwilling to engage with family members who were better placed to form a realistic assessment of his mother’s capacity and needs; and
- Uncritically accepted KNQ’s accounts of matters.
The Tribunal confirmed the appointment of the Public Guardian, so that it can remain in a position to participate in, or initiate (if necessary), a review of the ACAT guardianship orders: [44].
Closing Observation
At [50], the Tribunal made a closing observation in its reasons. In particular, it noted the Public Guardian’s failure to take active steps to ensure its participation in the ACAT hearing, describing it as a “dereliction in its responsibilities under s 6K(3)” of the Act, adding:
"[The Public Guardian’s] supine acceptance of LAB’s removal of [KNQ] from the jurisdiction when it eventually learnt of that event, coupled with its acquiescence in the application to revoke the Tribunal’s order and its failure to participate in the ACAT hearing, can only undermine the integrity and credibility of the protective decision-making system provided for under the Guardianship Act."
Conclusion The Tribunal decided not to review the EPOA, and to confirm the guardianship order without variation.
Read the decision on the NSW Caselaw website.
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| | ZLU v ZLV [2019] NSWCATAP 248
Justice Armstrong, President; M D Schyvens, Deputy President; L Porter, General Member
Facts The decision subject to appeal in this matter was a decision by the guardianship division to make a financial management order, appointing ZLU (the daughter of the subject person, (“ZLV”)), as ZLV’s financial manager.
On 29 June 2018, ZLW made two applications to the Guardianship Division of the Tribunal – an application for a guardian to be appointed for ZLV under Pt 3 of the Guardianship Act, and an application for the appointment of a financial manager in relation to ZLV’s estate under Pt 3A of the Guardianship Act.
ZLV had three daughters. She had previously revoked the appointment of another daughter, ZLW, as her enduring guardian and enduring attorney, and instead appointed ZLU as her enduring guardian, and ZLX as an alternative enduring guardian. An Enduring Power of Attorney document was also created, purporting to appoint ZLU as ZLV’s enduring attorney, and ZLW as her alternative enduring attorney, but that did not become operative until 18 September 2018.
The Tribunal could not exclude the possibility raised by the evidence that ZLV was being exploited, and further, did not accept some of the explanations given by ZLU in relation to certain expenditure from ZLV’s account. The risk of exploitation, the Tribunal concluded, was “unacceptable”, and it was therefore in ZLV’s best interests that a financial management order be made.
Notwithstanding the earlier finding, the Tribunal found ZLU to be a suitable person to be appointed ZLV’s financial manager, as it was in ZLV’s best interests to minimise the impact of intervention into her affairs when there was no positive finding that ZLU had in fact exploited ZLV, and any risk of exploitation that remained could be suitably tempered by the supervision of ZLU by the NSW Trustee and Guardian in its statutory role.
ZLU appealed that decision, on the following (amended) grounds – the first two, being questions of law; and the remaining requiring a grant of leave to appeal on grounds other than a question of law:
1. That there was no evidence to support the finding that there was a sensible and unacceptable risk that ZLV was being financially exploited;
2. That the Tribunal failed to take into account the views of ZLV;
3. That the Tribunal failed to take account of relevant evidence; and
4. That the Tribunal’s reasons for decision contained inaccuracies.
A guardian ad litem was appointed for ZLV in the appeal.
Issues
Was the Tribunal’s finding that there was a sensible and unacceptable risk that ZLV was being financially exploited made without evidence?
Should the Tribunal grant leave to appeal on a questions other than a question of law?
Legislation and case law considered
Section 80(2)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) (extracted above);
Collins v Urban, at [84] (quoted above): It is an error of law to make a finding of fact for which there is no evidence: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355-6; [1990] HCA 33; Kostas v HIA Insurance Services Pty Limited [2010] HCA 32 at [91].
A finding of fact which is supported by at least some evidence does not reveal an error of law, even if it was made by ignoring the probative force of the evidence which supports a different finding of fact: Azzopardi v Tasman UBE Industries Pty Limited (1985) 4 NSWLR 139 at 155-156 (Glass JA).
Where judgment is formed on the basis of conflicting indicators, it will be difficult, if not impossible, to establish a “no evidence” ground of review: L & B Linings Pty Limited v WorkCover Authority of NSW [2012] NSWCA 15 at [34] (Basten JA).
Section 4(g) of the Guardianship Act:
It is the duty of everyone exercising functions under this Act with respect to persons who have
disabilities to observe the following principles:
(a) the welfare and interests of such persons should be given paramount consideration,
…
(g) such persons should be protected from neglect, abuse and exploitation,
…
Analysis
On the first ground, the appeal panel rejected the Appellant’s contention that the Tribunal had made a positive finding that ZLV was being exploited, rather a finding that there was a “sensible and unacceptable risk that [ZLV] was being exploited.”: [56].
The Tribunal was entitled to make this finding without making a positive finding that the exploitation had in fact occurred, as the Appeal Panel explained, at [59]-[61]:
"There is no statutory obligation on the Tribunal to make definitive findings on factual allegations of exploitation, neglect or abuse in exercising the jurisdiction allocated to it by the Guardianship Act. To conclude otherwise would be a misreading of s 4(g) of the Guardianship Act. Positive findings of this kind might be available, but are not necessary when determining an application arising under the Guardianship Act.
It would be inappropriate to demand that the Tribunal find, in a definitive sense, that abuse or exploitation has in fact occurred. Such a requirement would inappropriately limit the Tribunal’s protective jurisdiction. Instead, the Tribunal is to be concerned with protecting the person the subject of the application from that risk – whether on the basis of the subject person’s possible previous exposure to neglect, abuse and exploitation, or on the basis of other findings such as their current financial status, vulnerability, or a relationship which might foreseeably expose the subject person to an undue risk of neglect, abuse or exploitation.
Section 4(g) of the Guardianship Act requires that the Tribunal protect the subject person from potential risks, and to that end, exercising its statutory functions for the purpose of mitigating or eliminating those risks.
…
The Appeal Panel found that it was open to the Tribunal to find that the explanations proffered by ZLU as to various expenditures in ZLV’s bank statements were unconvincing and did not fit with the other evidence: [65]. On that basis, it was also open to find that ZLV was at risk of exploitation: [65].
On the second ground, the Appeal Panel was not satisfied that the Tribunal’s reasons indicated a failure to consider ZLV’s views, rather, it was unclear in the Tribunal’s reasons as to what views they considered they had received from ZLV: [73]-[74]. The Enduring Power of Attorney document of 9 November 2017 was the best evidence as to ZLV’s views, and the Tribunal had considered that document, however decided that the continued management of ZLV’s estate, either informally or under the instrument appointing an enduring attorney, would not be in her best interests, and therefore her views on the identity of the managers were outweighed by other considerations: [77].
The Appeal Panel did not grant leave to appeal on the remaining grounds. In relation to the third ground, the Appeal Panel refused leave because the premise of the stated ground was various allegations and evidence submitted by ZLU against ZLW, alleging theft, and interferences with ZLV’s property – none of which was relevant to the Tribunal’s decision, because ZLW was not seeking to be appointed as ZLV’s manager: [83].
Finally, the Appeal Panel did not grant leave on the final ground, as it was effectively addressed in the other grounds of appeal, and allegations of “false statements” made were based on ZLU’s rejected proposition that the sound recording of the hearing had been edited: [86].
Conclusion
Leave to appeal on grounds other than a question of law was refused; the appeal was dismissed.
Read the decision on the NSW Caselaw website.
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| ZLX v ZLY [2019] NSWCATAP 273
A Britton, Principal Member; J Kearney, Senior Member; F Given, General Member
Facts
This matter concerned an application for costs by one respondent, and the separate representative of another respondent to an appeal in which the Appellant withdrew their appeal two days before it was scheduled to be heard.
While pursuing her appeal in NCAT, the Appellant also filed an appeal in the Supreme Court, seeking effectively the same orders – that the financial management order made by NCAT be revoked. The Appellant did not inform NCAT of the Supreme Court appeal until five business days prior to the scheduled hearing of the NCAT appeal – four weeks after the Supreme Court appeal was filed.
The Appellant also failed to comply with a number of early directions given by the NCAT appeal panel to provide submissions in relation to the appeal. The respondents to the NCAT appeal, on the other hand, did comply with the relevant orders, and provided their submissions to the Appeal Panel.
Two people – the second respondent, ZLZ (“the mother”), and the separate representative (Legal Aid NSW) appointed for the subject person – sought costs orders following withdrawal of the appeal (“the costs applicants”. The mother had engaged legal representation (and had been granted leave to do so) for the appeal. They submitted that their entitlement to costs was made out because the Appellant failed to comply with orders, failed to respond to their enquiries, appeared to intend to maintain a minimum prosecution with NCAT while at the same time pursuing the appeal in the Supreme Court, and that the appeal was arguably frivolous or vexatious and lacking in substance.
Issues
Are there “special circumstances” which permit the Tribunal to grant a costs order in favour of the respondents?
Is Legal Aid NSW eligible to be granted a costs order?
Legislation and case law considered
Section 60 of the Civil and Administrative Tribunal Act 2013 (NSW) - Costs:
(1) Each party to proceedings in the Tribunal is to pay the party’s own costs.
(2) The Tribunal may award costs in relation to proceedings before it only if it is satisfied that there are special circumstances warranting an award of costs.
(3) In determining whether there are special circumstances warranting an award of costs, the Tribunal may have regard to the following:
(a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings,
(b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings,
(c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law,
(d) the nature and complexity of the proceedings,
(e) whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance,
(f) whether a party has refused or failed to comply with the duty imposed by section 36 (3),
(g) any other matter that the Tribunal considers relevant.
(4) If costs are to be awarded by the Tribunal, the Tribunal may:
(a) determine by whom and to what extent costs are to be paid, and
(b) order costs to be assessed on the basis set out in the legal costs legislation (as defined in section 3A of the Legal Profession Uniform Law Application Act 2014) or on any other basis.
(5) In this section:
costs includes:
(a) the costs of, or incidental to, proceedings in the Tribunal, and
(b) the costs of, or incidental to, the proceedings giving rise to the application or appeal, as well as the costs of or incidental to the application or appeal.
Analysis
The Tribunal largely agreed with the submissions of the costs applicants: [25]-[29]. However, the Tribunal withheld judgment on whether the appeal was frivolous or vexatious and lacking in substance, citing a lack of material filed, nevertheless noting that the prospects of success appeared “remote”: [30].
Those circumstances, taken together, were sufficient to constitute “special circumstances”, and the Tribunal found accordingly, ordering the Appellant pay the mother’s costs: [31]-[32].
As regarded the costs of Legal Aid NSW, the Tribunal extended time for the separate representative to provide specific submissions on whether s 60 of the NCAT Act provided it with authority to make a costs order in favour of Legal Aid NSW as the subject person’s representative, as submissions received up until that point had not addressed that question, and it was not readily apparent that such authority existed: [35]-[37]. As the Tribunal pointed out, “[w]hile the subject person is a party to the appeal, Legal Aid NSW is not.”: [35].
Conclusion
An order was made that the Appellant pay the mother’s costs as agreed or assessed.
Read the decision on the NSW Caselaw website.
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| ZMZ v NSW Trustee and Guardian [2019] NSWCATAP 276
C Fougere, Principal Member; A Suthers, Principal Member; M Bolt, General Member
Facts
This appeal challenged the decision of the Guardianship Division on 9 July 2019, wherein a financial management order originally made for the subject person (“ZNA”) in 2015 was confirmed without variation. The NSW Trustee and Guardian remained appointed as her financial manager.
The review was requested by ZNA’s husband (“the husband”), who sought the revocation of the order, following the husband’s discovery in 2018 of an enduring power of attorney document made by ZNA in 2008, appointing the husband as her attorney (“the 2008 EPOA”).
The husband did not contend at the review hearing that ZNA had regained capacity. The question for the Tribunal was therefore whether it was otherwise in ZNA’s best interests that the financial management order be revoked.
The final stages of the hearing were interrupted by ZNA’s son presenting a risk to the safety of other attendees, and the presiding member ejecting him from the hearing room with the assistance of the Sheriff’s office. The presiding member thereafter terminated the hearing, and decided not to adjourn it to a later date, as he was satisfied that whatever submissions left to be made by the husband (applicant at the time) were available to the Tribunal on the filed material.
The husband appealed the review decision on grounds of procedural fairness, and on the ground that the Tribunal failed to attribute sufficient weight to ZNA’s views contained in the 2008 power of attorney.
Issues
Did the Tribunal fail to afford procedural fairness to the Appellant?
Did the Tribunal fail to afford sufficient weight to the subject person’s views contained in the 2008 enduring power of attorney?
Legislation and case law considered
Section 80(2)(b) of the Civil and Administrative Tribunal Act 2013 (NSW):
…
(2) Any internal appeal may be made:
…
(b) in the case of any other kind of decision (including an ancillary decision) of the Tribunal at first instance as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds.
Collins v Urban, at [84] (quoted above).
Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6, at [37]:
Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.
Section s 38(5)(c) of the Civil and Administrative Tribunal Act 2013 (NSW):
…
(5) The Tribunal is to take such measures as are reasonably practicable:
…
(c) to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings.
Analysis
As a question of law, the husband had a right to appeal on the question of whether he was afforded procedural fairness: [18].
The husband’s submission that the Tribunal denied him procedural fairness at the hearing, by truncating the hearing on the basis that ZNA’s son was presenting a security risk to the other attendees, was not accepted by the appeal panel.
Whilst acknowledging that a party has a right to be heard, the appeal panel noted that the right was not unfettered, and in non-adversarial proceedings such as in the Guardianship Division, the process is inquisitorial for the purposes of making a decision in ZNA’s best interests: [22]-[24].
The appeal panel considered the reasons of the decision below, and was satisfied that the Tribunal had properly considered the evidence that would have been brought by the husband in the closing stages of the hearing, and that no practical injustice had occurred: [27]-[28].
The husband required a grant of leave in order for his question of weight to be considered: [30].
The appeal panel reviewed the Tribunal’s reasons for decision where it undertook consideration of whether the financial management order should be revoked on a “best interests” basis: [34]. The appeal panel was satisfied that the Tribunal had in fact considered the 2008 EPOA, and the fact that ZNA had nominated the husband as her attorney, but found other factors weighed more heavily in favour of not revoking the financial management order: [38].
The Tribunal was not satisfied that it should grant leave to appeal on this ground, or on any other non-legal ground: [39]-[40].
Conclusion
Leave to appeal was refused, and the appeal was dismissed.
Read the decision on the NSW Caselaw website.
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| Supreme Court of New South Wales
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| Re Managed Estates Remuneration Report [2019] NSWSC 1597
Lindsay J
Facts
This decision annexes the annual report of the NSW Trustee & Guardian regarding the remuneration allowed for private financial managers and licensed trustee companies over the 2018-2019 financial year. It details the frequency, nature and quantum of the remuneration allowed in each matter.
Case law considered
Re Managed Estates Remuneration Orders [2014] NSWSC 383:
Order 4 in this matter required the NSW Trustee and Guardian to provide to the Court a report on the operation of the Orders made on 31 March 2014 including a statement of the frequency, nature and quantum of any remuneration allowed by the NSW Trustee during the immediately preceding year ending 30 June 2019.
Read the Report
The report is available through the link provided in the decision
Read the decision on the NSW Caselaw website.
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| Angus v Salier [2019] NSWSC 1854
Ward CJ in Equity
Facts
NSW Trustee and Guardian (NSWTAG) sought revocation of orders made on 25 November 2019 by which the NSWTAG was appointed as the plaintiff’s tutor for the conduct of estate and family provision proceedings. NSWTAG sought these orders on the basis that there was no utility in the NSWTAG being named as the tutor in the proceedings, as it had no power to act as tutor in the absence of a guardianship or financial management order.
Issues
Could the NSWTAG be appointed the plaintiff’s tutor, when it has not been appointed the plaintiff’s financial manager, and in the absence of any declaration that the plaintiff lacked capacity?
Legislation and case law considered
Section 11 of the NSW Trustee and Guardian Act 2009 (NSW):
(1) The NSW Trustee may be appointed to and act in any of the following capacities—
(a) trustee,
(b) executor or administrator,
(c) collector of estates under an order to collect,
(d) agent or attorney,
(e) guardian or receiver of the estate of a minor,
(f) receiver of any other property.
(2) The NSW Trustee may be appointed to and act in the capacity of a financial manager of the estate of a managed person.
(3) The NSW Trustee may prepare wills and carry out professional services in connection with wills, probate and administration.
(3A) The NSW Trustee may prepare instruments that create enduring guardianship appointments and carry out professional services in connection with the preparation of the instruments.
(3B) The NSW Trustee may prepare instruments that create powers of attorney and carry out professional services in connection with powers of attorney.
(4) The NSW Trustee, if appointed to act in a trust or protective capacity—
(a) has the same liabilities, and
(b) is entitled to the same rights and immunities, and
(c) is subject to the same control and orders of any court,
as a private person acting in the same capacity.
A v A [2015] NSWSC 1778 (at [22] to [26]) (citations omitted):
In theory, the Court could direct the NSW Trustee, as a protected estate manager, to consent to an application as a tutor, or it could (mindful of the dictates of the protective jurisdiction exercised by the Court, and the NSW Trustee’s role in management of protected estates) dispense with any requirement under rules of court for the NSW Trustee’s consent.
However, it would only be in a rare case that the NSW Trustee’s consent to appointment as a tutor would, or should, be dispensed with.
Appointment as a tutor, in proceedings not commenced by the person appointed as a tutor, can be particularly onerous. It involves picking up proceedings not the subject of an earlier, rational assessment of prospects for success, and dealing with baggage arising from conduct of proceedings by others, not all of whom might have been competent to have carriage of the proceedings.
Once appointed as a protected estate manager, and armed with powers it has as a manager, the NSW Trustee generally needs, and should be allowed, an opportunity to survey the field of litigious battle onto which, even without its consent, it has been dumped.
Analysis
The Court revoked the appointment of NSWTAG as the plaintiff’s tutor, as NSWTAG had not been appointed the plaintiff’s financial manager, and there had not been a declaration that the plaintiff lacked capacity: [7]-[9].
Conclusion
The Court revoked the appointment of NSWTAG as the plaintiff’s tutor.
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| New South Wales Court of Appeal
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| Drivas v Jakopovic [2019] NSWCA 218
Bell ACJ, Macfarlan JA, and McCallum JA
Facts
This was a typical dispute over the will of the deceased, wherein the testatrix signed two wills, leaving less of an entitlement in respect of a certain party in one will compared to that party’s entitlement in another will. Both wills divided the deceased’s property between her two children, Boris and Branka.
The Appellant challenged the validity of the latter will, on the basis that the deceased lacked testamentary capacity at the time she signed it.
Medical evidence submitted by the Appellant included expert opinions from various medical professionals, and evidence of a mini mental state examination (MMSE) and CT scans undertaken on the deceased over a period of some years: [27]-[44].
Some doubt was expressed by medical professionals as to the deceased’s capacity, especially considering her diagnosis of dementia; however none of this evidence could offer a definitive finding of a loss of capacity, for the most part going no further than expressing “doubt” as to the deceased’s competence to understand the ramifications or content of a new will, and to the extent that an opinion as to capacity was proffered, it was of little weight: [35]-[36], [41], [63]-[65]. Mr Taylor, the solicitor who took instructions from the deceased in relation to her will, drafted it, and arranged for it to be signed and witnessed, gave evidence in support of a finding that the deceased had capacity at the time the latter will was signed. The primary judge relied principally on Mr Taylor’s evidence in finding that the latter will was valid: [6]. His Honour found that medical evidence before him of both treating practitioners and experts did not require a different conclusion to be reached: [6].
Issues
1. Whether the primary judge erred in giving weight to evidence from the solicitor of the deceased, and failed to give proper weight to the medical evidence; and
2. Whether the deceased knew and approved of the terms of the September 2007 Will.
Case law considered
Banks v Goodfellow [1870] LR 5 QB 549, 565:
It is essential to the exercise of such a power that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties – that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.
Analysis
It was open for the primary judge to place considerable weight on Mr Taylor’s practice, because of his experience in dealing with elderly clients, his time spent alone with the deceased in preparing the latter will, his understanding of the law and test in Banks v Goodfellow, and that nothing about his evidence indicated a case that appeared in any way extraordinary: [54]-[55], [57].
It was also open for the primary judge to consider the CT scan and MMSE as not significant evidence of incapacity, as the tests, though conclusive as to the deceased’s diagnosis of dementia, were not sufficient or conclusive as to a finding of testamentary incapacity: [58]-[61].
The expert opinion evidence went little further than expressing “doubt” as to the deceased’s capacity, and to the extent that it did proffer an opinion as to capacity, was of little weight, as it was based on findings of fact falling outside the expert’s scope of expertise: [63]-[65].
On the basis of these findings, it was open for the primary judge to find that the deceased had capacity to sign the latter will; as a result, he was right in finding that it was validly made: [69].
Conclusion
The will of the deceased, made in September 2007, was validly made. The appeal was dismissed with costs.
Read the decision on the NSW Caselaw website.
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| | SM [2019] WASAT 22
Judge T Sharp, President (Acting); Ms P Le Meire, Member; Ms C Barton, Member
Facts
On 16 September 2015 SM was injured in a motor vehicle accident. On 30 November 2016 SM's mother (“the Mother”) was appointed administrator of SM's estate (Administration Order), with a function to: “[S]eek legal advice on behalf of [SM], and to bring, and defend, actions, suits and other legal proceedings in the name of the represented person and if appropriate to settle the same.”
Almost three years later, a compensation claim was settled in SM’s favour, for the sum of $5.7m. The District Court appointed Australian Executor Trustees Limited (AET) as the trustee of these funds, ordering that it be applied and/or invested for SM’s benefit.
Pursuant to s 292-95 of the Income Tax Assessment Act 1997 (Cth), SM had 90 days from the date on which the funds were received in which to make a superannuation contribution.
AET sought a review of the administration order, seeking to be appointed as administrator for SM, with the limited function to enable it to deposit a portion of the damages award into superannuation for SM.
AET later amended the application, seeking further authority to:
[In relation to SM’s superannuation] make and renew any document which has the effect of directing or binding the superannuation trustee as to the payment of superannuation death benefits following the represented person's death.
On 5 November 2018 the Tribunal appointed AET as administrator of SM's estate with the sole function to pay a portion of the Fund into superannuation for the benefit of SM. The question of the additional function was adjourned.
Issues
1. Could WASAT confer on an administrator a power to make or confirm a binding death benefit nomination (BDBN)?
2. Can an administrator with plenary powers make a BDBN for a represented person in Western Australia?
3. Can a represented person subject to an administration order make a BDBN themselves?
4. Is a BDBN a 'testamentary disposition' and thus a plenary administrator prohibited by s 71(2a) of the Wills Amendment Act 2007 (WA) from making a BDBN?
5. If the Tribunal has power to grant the additional function to an administrator is it in SM's best interests that the Tribunal grant that function to the applicant?
Legislation and Case law considered
Re The Full Board of the Guardianship and Administration Board [2003] WASCA 268, [57]:
The purposes of conserving the estate of a person under administration during his lifetime for his own advantage and benefit, which is so obvious in the Guardianship and Administration Act, cannot be regarded as extending to the conservation and preservation of the estate after death, where a person the subject of protection has ceased to have any mortal needs. This is expressly recognised in the Act by section 78(1)(b) which provides that the authority of an administrator of the estate of a represented person ceases on the death of the represented person.
Section 71 of the Guardianship and Administration Act 1990 (WA) (“the GAA Act”):
(1) The State Administrative Tribunal may, under section 69, vest plenary functions in the administrator of the estate of a represented person.
(2) Where plenary functions are vested in an administrator he may perform, or refrain from performing, in relation to the estate of the represented person, or any part of the estate, any function that the represented person could himself perform, or refrain from performing, if he were of full legal capacity.
(2a) Despite subsection (2), a plenary administrator may not make a will or other testamentary disposition on behalf of a represented person, but this subsection does not affect the operation of section 111A.
Section 78 of the GAA Act:
(1) A person ceases to be administrator of the estate of a represented person upon –
…
(b) the death of the represented person.
Application/Analysis
Question 1
The Tribunal’s consideration of this question boiled down to its determination as to whether or not the function sought was for the purposes of conserving the estate of the person under administration for their own advantage and benefit: [89].
As the purposes of a BDBN is solely to enable transmission on a person’s death of their superannuation benefit, an administrator could not be given authority to make a BDBN, as their authority ends upon the subject person’s death: [90]-[91].
Question 2
This question was addressed in the Tribunal’s reasons for its decision in relation to Question 1.
Question 3
In passing, the Tribunal commented that the BDBN could be changed by SM, subject to her capacity, at any time up until her death: [101]-[103].
Question 4
The Tribunal found that the authorities supported a funding that a BDBN is a testamentary disposition where the member of a pension/superannuation fund has a present equitable entitlement to the money in the pension/superannuation fund and the BDBN was not made further to a contractual right: [99].
As SM had a beneficial interest in the money from the Fund being paid into the Superannuation Fund, SM therefore had proprietary rights and powers of the property during her lifetime until her death; this, in conjunction with the fact that any BDBN she was able to make did not take effect until her death, led the Tribunal to find that the proposed BDBN was a testamentary disposition: [100]-[104].
Question 5
The Tribunal found that, in the event the Tribunal had power to grant the additional function, it would not be in SM’s best interests to grant that function: [107]. In considering this question, the Tribunal noted the already established legal processes through which the residue of her superannuation would be dealt with, in the event she did not make a BDBN: [105]-[106].
Conclusion
The Tribunal dismissed the application for the additional function, as it was not a function which the Tribunal had power to grant to an administrator.
Read the decision on the Western Australia eCourts Portal website.
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| | DISCLAIMER: This publication has been prepared for information purposes only. The Guardianship Division Case Digest should not be relied on as legal advice nor is it a substitute for reading the decisions in full. NCAT does not accept any liability to any person for the information (or the use of the information) which is provided in this publication.
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