Civil and Administrative Tribunal New South Wales Medium Neutral Citation: ZTJ v New South Wales Trustee and Guardian [2023] NSWCATAP 48 Hearing dates: 17 November 2022 Date of orders: 20 February 2023 Decision date: 20 February 2023 Jurisdiction: Appeal Panel Before: A Suthers, Principal Member L Organ, Senior Member J Newman, General Member Decision: (1) Leave to appeal is refused. Catchwords: APPEAL – Guardianship and Financial Management – no error in exercise of discretion disclosed Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Guardianship Act 1987 (NSW) Cases Cited: BPY v BZQ [2015] NSWCATAP 33 Collins v Urban [2014] NSWCATAP 17 EB v Guardianship Tribunal [2011] NSWSC 767 House v The King (1936) 55 CLR 499 Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 P v NSW Trustee and Guardian [2015] NSWSC 579 Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 Slinko v Guardian and Administration Tribunal [2006] QSC 39 Texts Cited: None cited Category: Principal judgment Parties: ZTJ (Appellant) New South Wales Trustee and Guardian (First Respondent) Public Guardian (Second Respondent) Representation: Self-represented (Appellant) No Appearance (First Respondent) No Appearance (Second Respondent) File Number(s): 2022/00260436 Publication restriction: The publication of the name of the appellant, including the publication of any information picture or other material that identifies them or is likely to lead to their identification is prohibited. Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Guardianship Division Citation: Not cited Date of Decision: 18 August 2022 Before: J Darcy, Senior Member File Number(s): 2020/00008613 REASONS FOR DECISION Background 1. In 2020, at a time when the appellant (assigned the pseudonym ZTJ in the appeal) was at risk of losing her social housing tenancy due to non-payment of rent, the Tribunal appointed a financial manager to her estate, appointing the New South Wales Trustee and Guardian to that role. 2. In reasons delivered 28 February 2020, the Tribunal noted, relevantly, that: On 10 January 2020 the mental health case manager (social worker) from Ryde Community Mental Health Centre, [name redacted], made an application to the Guardianship Division of the NSW Civil and Administrative Tribunal (the Tribunal) seeking an order for financial management in respect of [ZTJ's] estate (the Application). The Application states that [ZTJ] is in arrears of rent in the sum of approximately $7000 and that she is refusing to pay the rent for her housing due to her belief that she owns the property. This issue is subject to a current order of the Commercial and Consumer Division of the NSW Civil and Administrative Tribunal (NCAT CCD). The Application states that ZTJ is at immediate risk of eviction and homelessness owing to her untreated psychosis and delusional disorder and she is in breach of the NCAT CCD order dated 23 December 2019 for payment of her rent. 1. Later in its decision it found that: The Tribunal accepts the medical evidence that [ZTJ] has a delusional disorder. It accepts the evidence before it that [ZTJ] used to pay rent for her Department of Housing premises, but that she has stopped doing so since around April 2019 because she is of the belief that she is the rightful owner of the property. The Tribunal accepts however that [ZTJ] has not been able to satisfy NCAT CCD that this was the case, and there is no legal reason for considering that that decision has been stayed or is subject to a review. Thus, as [ZTJ] maintains the view that she does not owe rent, but that she does owe for example land rates (which [name redacted] on behalf of SGCH stated that a tenant is not required to pay), the Tribunal considers that [ZTJ] is not able to understand or manage important aspects of her financial affairs. While it is prepared to accept that she has accumulated some savings and there is no evidence before it that she is not paying her other bills, this does not alleviate the concerns that in relation to the significant expenses relating to the critical matter of her housing, she is not managing her finances in her best interests. The Tribunal is also not satisfied that there is any other support available to [ZTJ] in this regard, for even when her neighbour asked whether she could stay in the property if she paid the money she owed, she interrupted him and insisted that she did not owe rent. It is fair to say that as [ZTJ] does not acknowledge that she owes rent, there is no support or assistance available which could help her manage this significant aspect of her finances. 1. As the decision makes clear, ZTJ's mistaken belief that she owns her social housing property, and that she is therefore not required to pay rent for it, was a significant factor in the Tribunal reaching a state of satisfaction that she was unable to manage her affairs, and that a manager should be appointed. 2. Since that time there have been several applications made by ZTJ to the Tribunal seeking to have the financial management order revoked. The Tribunal was not satisfied on any of those occasions that it should do so. 3. This appeal relates to the last of those applications, lodged by ZTJ in March 2022. ZTJ lodged two applications. The first was a guardianship application which sought that she be appointed as her own guardian, in what should clearly be understood to be an attempt to resume control of her own affairs. The second was an application to revoke the financial management order. 4. On 30 June 2022, the Tribunal made directions for ZTJ to provide evidence in support of her applications by 4 August 2022. 5. On 18 August 2022, at a hearing, the Tribunal dismissed the guardianship application on the basis that it was misconceived and lacking in substance. It also dismissed the financial management revocation application under s 55(1)(d) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) because there had been a want of prosecution of the proceedings. The Tribunal noted in its order that "the applicant has not provided evidence of her regained capacity to manage her financial affairs or evidence that it is in her best interest to revoke the financial management order, in accordance with the Tribunal's directions dated 30 June 2022." 6. No written reasons for the decision are available. As it was an interlocutory decision, written reasons were not required unless requested: NCAT Act, Sch 6, cl 11(2)(c). 7. It is from that decision that ZTJ appeals. She lodged her appeal in time. ZTJ acknowledges in her notice of appeal that documents she did lodge in the Tribunal before it made its decision to dismiss her applications were illegible, a fact communicated to her by the Tribunal by email on 5 August 2022. She says that she had sought more time to lodge legible documents but did not receive a response from the Tribunal. 8. For the reasons set out below, we have decided to refuse leave to appeal. Participation 1. The Public Guardian and the NSW Trustee and Guardian elected not to participate in the appeal. On that basis, there was no contradictor. However, ZTJ still bears the onus to demonstrate that the Tribunal's decision was made in error. Publication of the names of the parties 1. The publication or broadcast of the name of any person, who is mentioned or is otherwise involved in an internal appeal against decisions made by the Guardianship Division of NCAT, is prohibited under s 65(1) of the NCAT Act. Being an official report of the appeal proceedings, that prohibition does not apply to these reasons for decision due to s 65(3) of the act. Nonetheless, because of the sensitive nature of the matters raised in these proceedings, we have decided to order, pursuant to ss 65(1)(a)–(c) of the act that the publication of these reasons, or any part of them, either by sound recording or transcript which includes any details that may identify the appellant is prohibited. Scope and nature of internal appeals from decisions of the Guardianship Division 1. An appeal to the Appeal Panel does not simply provide a losing party in the Tribunal below with the opportunity to run their case again: Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10]. To succeed in an appeal, the appellant must demonstrate either an error on a question of law, which, except in an appeal from an interlocutory decision, may be argued as of right; or that permission (that is, "leave") to appeal should be granted to bring the appeal: NCAT Act, s 80(2). As the decision of the Tribunal was an interlocutory decision, defined as such in s 4(1) of the NCAT Act, leave is required to bring the appeal. 2. The particular considerations relevant to our granting leave in an appeal from the Guardianship Division are explained in a number of decisions. 3. In Collins v Urban [2014] NSWCATAP 17 at [82] to [84], the Appeal Panel set out the circumstances where it is ordinarily appropriate to grant leave to appeal. The Appeal Panel noted that the Appellant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact, and set out a list of relevant factors which, if established, might indicate that a grant of leave is warranted. They include whether the appeal raises: 1. issues of principle; 2. questions of public importance or matters of administration or policy which might have general application; or 3. an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; 4. a factual error that was unreasonably arrived at and clearly mistaken; or 5. the Tribunal having gone about the fact-finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result, so that it would be in the interests of justice for it to be reviewed. 1. In P v NSW Trustee and Guardian [2015] NSWSC 579, at [191], Lindsay J indicated that five qualifications should apply to the comments of the Appeal Panel in Collins v Urban, in the context of an appeal from the Guardianship Division. Of those, only four are relevant in appeals to the Appeal Panel (rather than to the Court). Those four qualifications are: 1. There is a need to take section 4 of the Guardianship Act 1987 (NSW) specifically into account, which was recognised in BPY v BZQ [2015] NSWCATAP 33 at [33]-[34]; 2. In deciding how to proceed in dealing with any challenge to a decision of the Guardianship Division, it is important to be mindful of a need, characteristic of the protective jurisdiction but reinforced by statute, to administer a protected estate without strife, in the simplest and least expensive way; with informality of procedure; and in a manner calculated to facilitate the just, quick and cheap resolution of the real issues in dispute; 3. Given the broad evaluative or discretionary content of most decisions made on an exercise of protective jurisdiction, guidance about what is or may be an error of principle may, in particular cases, be derived from House v The King (1936) 55 CLR 499; and 4. In reviewing an evaluative or discretionary decision of the Guardianship Division, it is necessary to make due allowance for the possibility that the Division's discretionary powers, in the exercise of protective jurisdiction, are unconfined except by the subject matter, scope and purpose of the Tribunal's jurisdiction. 1. In comments that we are satisfied are equally apposite to the conduct of appeals from the Guardianship Division to the Appeal Panel, in EB v Guardianship Tribunal [2011] NSWSC 767 at [194]-[199], Hallen AsJ (as his Honour then was) also noted the relevance for present purposes of the observations in Slinko v Guardian and Administration Tribunal [2006] QSC 39; at [10] to [16] that: (a) It is clearly not intended that there be a re-hearing in the Supreme Court [here the Appeal Panel], on the facts, simply for the asking. ... (b) To warrant a grant [of] leave, an applicant must demonstrate an arguable case of error in a finding, central, and not merely peripheral, to the determination, such that it would be unjust to allow the finding to stand... (c) The suggested factual error, or errors, must rest in the adoption of a factual position beyond the realms of reasonableness, or one that is clearly mistaken… (d) The factual error, or errors, should be plainly and readily apparent. The Court ought not embark on a comprehensive re-examination of all of the evidence to identify the error or errors. It would subvert the legislative intent if, factual error being suggested, the court were to embark on a comprehensive re-examination of the facts of the case to exclude the possibility. 1. As Mason J explained in Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 at [40], in respect of the exercise of a discretion such as that to summarily dismiss an application pursuant to s 55 of the NCAT Act: It is generally for the decision-maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising [a discretionary] statutory power. Consideration 1. Neither in the Notice of Appeal, nor in the submissions made in support of it, does ZTJ identify how the Tribunal erred in finding that her guardianship application was misconceived. It clearly was, and as we indicated earlier it is apparent on its face that ZTJ intended it as vehicle to regain control of her finances, which the application could not have achieved. 2. Nor did ZTJ devote much attention to demonstrating error in the finding that she had failed to prosecute her application to revoke the financial management order. 3. ZTJ prepared thoroughly for the hearing of the appeal. She lodged an extensive bundle of documents which we will not refer to in any depth. 4. Despite our best efforts to explain to ZTJ the nature of the appeal process, what she really sought from us, having reviewed the documents she lodged in the appeal, was an explanation as to why her assertions that she owns her social housing property, and the related assertion that it ought be exempt from levies such as Council rates because it is, in effect, church property, are invalid. 5. It would be unhelpful, we think, to deal at length with ZTJ's genuinely held beliefs about those issues, as reiterated in her submissions. 6. Instead, we record that in the documents lodged by ZTJ, which she clearly wished to put before the Tribunal before it dismissed her applications, there is a progress note from the Lower North Shore Community Health Service of the Northern Sydney Local Health District, dated 1 August 2022 and authored by a General Practitioner which states, relevantly: Seen […] for assessment in relation to [her] self-referral for the purpose of challenging her financial management order at NCAT hearing in mid-August. FMO in place for approx two years to protect [her] from eviction after she refused to pay rent when management of her rental property was transferred to St George housing. Her thinking has shifted a little since being seen by the author approx two years ago. At that time her reason for not paying rent was that she owned the property she had been living in for almost 30 years. The evidence she gave for ownership was psychotic in nature, e.g., the letters [forming her last name] within the words Galbraith & sons, were on the gas meter. Today she explained that her reason for not paying rent two years ago was because she refused to pay money to an entity that was under the control or ownership of the man named George who sexually assaulted her when she was four years old. Her principal reason for wanting to be off the FMO is that she believes the FMO is preventing her from selling a property in Orange she believes she inherited (although she hasn't establish proof of ownership) and if she sold the Orange property she would then be able to buy the property she is currently renting and has lived in for the past 30 years. She went off on numerous tangents during her monologue about her housing & financial woes, including a story about how she acquired the black, foundling opal which is the heart of the Madonna and Child, her belief that the legal aid solicitor appointed to her two years ago was one and the same who defrauded her out of her inheritance many years ago, and her mother being the first Hungarian citizen to be naturalised in Australia, and the reason for this being numerology related, with various family members having the right numbers in their dates of birth. 1. Ending the report under the heading "Plan", the following is recorded: -unable to provide letter supporting her claim to have capacity for financial decision-making -the author agreed to provide letter to NCAT pertaining to her mental health - she failed to derive significant benefit from prior Rx with LAI paliperidone and the risk profile doesn't justify involuntary Rx at this stage with alternative antipsychotic medication - transfer care to GP. 1. It is sufficient, in our view, to note that in presenting her appeal ZTJ focused on the same issues referred to in that report rather than attempting to demonstrate how the Tribunal's decision was made in error. 2. We are unable to discern that the Tribunal erred in the exercise of its discretion to dismiss the applications from the material provided by ZTJ. To the extent that the appeal could be said to raise an allegation of procedural unfairness or constructive failure to exercise jurisdiction in the Tribunal failing to respond to ZTJ's application for an extension of time to lodge the documents she wanted to rely on, ZTJ failed to draw our attention to the relevant correspondence to satisfy us that occurred. We have reviewed the Guardianship Division's file, and can locate no such correspondence. What is recorded is correspondence from the Division to ZTJ trying to assist her to provide clearer documents, ending in a response by ZTJ on 8 August 2022, in the following relevant terms: Okay thanks. I am just waiting for advice from legal counsel. Thank you. 1. Nor has the appellant provided us with the transcript of the hearing on 18 August 2022, such that we could be satisfied that she raised her request for an extension with the member or that any such request was overlooked. 2. In the absence of reasons, we could not be satisfied the Tribunal erred in the nature of the errors set out in House v the King. The decision cannot be said to be unreasonable or plainly unjust, particularly given the effect of s 25N (4)(b) of the Guardianship Act. 3. There is no other apparent error and we would not grant leave given the lack of utility in doing so where there is no evidence that ZTJ has moved from her position that she should not be obliged to pay for her social housing. 4. We would, however, note that in her material ZTJ provided references from several people confirming her good standing in the community and, in respect of a letter from a pharmacist in the local area, confirming that she has had an account in respect of which she has promptly paid any balance owing each month. It is apparent that, in relation to that portion of her Centrelink income which is not used by the Trustee and Guardian to ensure payment of her accommodation expenses, ZTJ does seem to be able to manage those matters. However, that does not lead to the conclusion that the order should be revoked. Orders 1. Our Order is as follows: 1. Leave to appeal is refused. ********* I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 February 2023