NSW Civil and Administrative Tribunal New South Wales Medium Neutral Citation: CQH [2023] NSWCATGD 22 Hearing dates: 16 October 2023 Date of orders: 16 October 2023 Decision date: 16 October 2023 Jurisdiction: Guardianship Division Before: C P Fougere, Principal Member Decision: The disclosure to FZG (applicant) of the following material provided by TNH (attorney) is prohibited: 1. Copies of Bank Account 1 in name of CQH (ending in account no. [removed for publication.]) for period 31 March 2023-30 June 2023 and 30 June 2023 - 29 September 2023, including third party access transaction accounts provided on 27 September 2023. 2. Copy of Bank Account 2 in name of CQH (ending in account no. [removed for publication.]) for period 30 June 2023 - 29 September 2023 including third party access transaction accounts provided on 27 September 2023. 3. Copy of Bank Account 3 in name of TNH (ending in account no. [removed for publication]) for period 31 July 2023 - 1 August 2023 and related "EPOA" account from 2 August 2023 - 2 October 2023. 4. List of reimbursements for CQH's private care and expenses and associated receipts. 5. Covering letter from TNH dated 7 October 2023 date stamped as received on 9 October 2023. This order is made under s 64(1)(d) of the Civil and Administrative Tribunal Act 2013. Catchwords: PRACTICE AND PROCEDURE – application for non-disclosure orders in respect of financial documents – whether desirable to make orders under Civil and Administrative Tribunal Act 2013 (NSW), s 64 – consideration of the views of the subject person – order made Legislation Cited: Administrative Decisions Tribunal Act 1997 (NSW), s 75(2) Civil and Administrative Tribunal Act 2013 (NSW), ss 36(1), 38(2), 38(5)(c), 38(6), 64, 64(1), 64(1)(d); cl 5(1) of Sch 6 Guardianship Act 1987 (NSW), ss 4, 4(a), 4(d) Powers of Attorney Act 2003 (NSW), s 36(1) Cases Cited: Bellamy v Bellamy [2018] NSWSC 534 Bettington v Commissioner of Police [2021] NSWCATAP 110 State of New South Wales (Justice Health) v Dezfouli [2008] NSWADTAP 69 Texts Cited: None cited. Category: Procedural rulings Parties: 001: Review of an Enduring Power of Attorney CQH (the person) FZG (applicant) TNH (attorney) NSW Trustee and Guardian 002: Financial Management Application CQH (the person) FZG (applicant) TNH (attorney) NSW Trustee and Guardian 003: Guardianship Application CQH (the person) FZG (applicant) TNH (enduring guardian) Public Guardian Representation: Nil. File Number(s): NCAT 2023/00290038 Publication restriction: Decisions of the Guardianship Division of the Civil and Administrative Tribunal have been anonymised to remove any information that may identify any person involved in the Tribunal's proceedings: Civil and Administrative Tribunal Act 2013 (NSW), s 65. REASONS FOR DECISION 1. These are the reasons for the interlocutory decision I made on 16 October 2023 in relation to proceedings concerning CQH (2023/290038 – 001, 002, 003). 2. CQH has three children – TNH, FZG and Ms Z. 3. On 11 May 2009, CQH made an enduring power of attorney (enduring power of attorney) and an enduring guardianship appointment (enduring guardianship appointment). He appointed his now deceased wife in both roles and then TNH as the alternative attorney and enduring guardian. 4. TNH began exercising the functions under the enduring power of attorney on 27 July 2023. 5. On 12 September 2023, FZG lodged an application with the NSW Civil and Administrative Tribunal (NCAT) seeking a review of the enduring power of attorney. On 15 September 2023, she lodged applications seeking a financial management order and guardianship order for her father. 6. FZG alleged that TNH had misappropriated the sale proceeds of his father's former farming property in regional NSW as well as the proceeds of sale of livestock, farming equipment and a motor vehicle that had belonged to CQH. 7. Due to the serious allegations contained in the applications, a hearing was listed on 27 September 2023, approximately two weeks after the first application was lodged (first hearing). 8. CQH participated throughout the first hearing by videoconference in the company of the attorney. The applicant and her husband, Mr Y, attended in person. Ms Z took part by telephone. 9. As a consequence of the decision to list the hearing of the applications with urgency, there was limited evidence before the Tribunal as to CQH's financial situation. Although FZG had made serious allegations about the conduct of her brother, she had not provided any documentary evidence to corroborate her assertions. 10. During the course of the first hearing, at the Tribunal's request, TNH emailed to the Tribunal registry copies of transaction statements in relation to his father's two bank accounts (Bank Account 2 and Bank Account 1). These transaction accounts were, however, transaction accounts provided to TNH in his role as attorney (with notations on both accounts that "You have third party access"). The transaction statements did not have CQH's name on them or any other identifying information on them as to whose account they belonged to. 11. The transaction statements did record, however, a deposit of funds into Bank Account 2 on 15 September 2023 of $1,231,545. TNH had made a handwritten notation on the statement, and confirmed orally, that this amount was the balance of the settlement sum for the sale of the regional NSW property. A deposit of $22,100 was also recorded on the same day. According to TNH, this was the remainder of the deposit held by the managing agent in relation to the sale of the regional NSW property. 12. The transaction statement also showed deposits into Bank Account 2 of other significant sums, noted by TNH as being the sale proceeds of his father's motor vehicle (8 September 2023 - $18,000), farming equipment (5 September 2023 - $32,041) and livestock (28 July 2023 - $8,100). 13. On 19 September 2023, an amount of $1,253,645 (made up of the balance of the settlement sum and the remainder of the deposit) was debited from Bank Account 2. On the same date, the same amount was credited to CQH's Bank Account 1. This statement had an opening balance (as at 31 March 2023) of $960,260. No withdrawals are shown during the entirety of the statement period. The balance of this account (as at 19 September 2023) was $2,262,530. 14. FZG was shown a copy of these transaction accounts during the first hearing and the Tribunal drew her attention to the entries in the transaction accounts noted above. FZG submitted that the Tribunal should not be satisfied that these were her father's accounts as they did not have any identifying information on them. 15. Although there was a basis on which to form a preliminary view that these transaction statements were in fact statements in relation to accounts held by CQH, the Tribunal nevertheless decided that it was appropriate to adjourn the hearing. Directions were made at the conclusion of the hearing on 27 September 2023 that required TNH to provide copies of the transaction statements for the two bank accounts that would clearly show (or not) that they were held by CQH and reflected the same information as contained in the transaction statements provided at the hearing. 16. Material was provided by TNH in accordance with the directions (as well as additional material not mentioned in the directions). 17. On 13 October 2023, TNH lodged an application seeking an order that the financial material that had been provided in accordance with the directions made on 27 September 2023 not be given to the applicant (application for non-disclosure). 18. On 16 October 2023, I convened an interlocutory hearing to consider the application for non-disclosure. The following parties participated in the interlocutory hearing by telephone and made submissions about the application: CQH, TNH and FZG. 19. I decided to make the following orders (non-disclosure orders) pursuant to s 64(1)(d) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) prohibiting disclosure to FZG of the following documents: "1. Copies of [Bank Account 1] transaction accounts in name of [CQH] (ending in account no. [remove for publication.]) for period 31 March 2023 - 30 June 2023 and 30 June 2023 - 29 September 2023, including third party access transaction accounts provided on 27 September 2023 2. Copy of [Bank Account 2] transaction account in name of [CQH] (ending in account no. [removed for publication]) for period 30 June 2023 - 29 September 2023 including third party access transaction accounts provided on 27 September 2023 3. Copy of [Bank Account 3] transaction account in name of [TNH] (ending in account no. [removed for publication.]) for period 31 July 2023 - 1 August 2023 and related "EPOA" account from 2 August 2023 - 2 October 2023 4. List of reimbursements for [CQH's] private care and expenses and associated receipts 5. Covering letter from [TNH] dated 7 October 2023 date stamped as received on 9 October 2023" 1. My reasons for doing so are as follows. Summary of submissions 1. In an Application for Miscellaneous Matters filed on 13 October 2023, TNH sought the following orders: 1. That the Tribunal consider whether there is any evidence in the bank account statements that supports FZG's application to the Tribunal 2. If the Tribunal finds that there is no evidence in the bank account statements provided to the Tribunal to support FZG's application to the Tribunal, the bank account statements of CQH not be disclosed to the Applicant. 1. The following were listed as the grounds for the non-disclosure application: 1. That the guiding principle is to facilitate the just, quick and cheap resolution of the real issues in the proceedings (NCAT Act, s 36(1)) 2. That FZG will use any information to prolong the proceedings or to commence alternative proceedings in another jurisdiction such as the Queensland Civil and Administrative Tribunal (QCAT) 3. "My wife and I work full time in our own business. We are happy to look after [CQH] until he is comfortable with moving into assisted accommodation. These proceedings and any other proceedings that my sister may commence prevent us from getting on with our lives and making sure that [CQH] is well looked after." 1. At the directions hearing on 16 October 2023, TNH also submitted that his understanding of his responsibilities as attorney includes protecting the confidentiality of his father's financial affairs and "not just letting out" copies of his bank accounts. 2. I was also able to speak with CQH by telephone on his own (TNH and Ms X left the room when I asked them to). 3. After I explained to CQH that the application was about whether or not FZG should be entitled in the usual way to be given copies of his bank statements and other financial records, CQH responded with what can be described as an emphatic "no way". He told me that he did not want FZG or anyone else to have them; that FZG had never had anything to do with his money or finances and he had never shown her anything to do with this; he lives with TNH, and it is best that TNH handles it all. 4. FZG objected to the making of confidentiality orders about the documents in question. A summary of her submissions is as follows: 1. If TNH was acting honestly, he wouldn't mind telling her everything about their father's finances 2. This is not a case of CQH being in a safe position and that when his money has been embezzled (by TNH) he won't be left with anything 3. TNH does not want her to know the details of the bank accounts and what he has been spending because she'd be more aware of what's happening and could tell the Tribunal what is wrong in the accounts 4. She is being "shut out". TNH has always "cut me out" 1. In response to her father's objection to FZG being given copies of his bank accounts and other financial information, she agreed that in the past her father would never have told her or others about his finances stating, "Dad never ever said how much he's got." He was private about his financial affairs and would never have given his financial details to her or any other family member. 2. However, her father is "not that person now" and "[Ms Z] and I can take over". FZG said that her point was that now that her father is unable to manage his own finances, he can't protect himself from TNH's actions and she should have the documents so that she can see what has happened and can help her father. Relevant law 1. The Tribunal is bound by the principles of procedural fairness or natural justice. It may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice (NCAT Act, s 38(2)). An important aspect of natural justice is the right to be heard. The Tribunal must ensure that a party has a reasonable opportunity to be heard and otherwise have her submissions considered: NCAT Act, s 38(5)(c). The Tribunal must also ensure that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue on any proceedings: NCAT Act, s 38(6). Generally, all parties to a proceeding have a right to see the evidence held by the Tribunal in relation to the proceeding in which they are involved. 2. Section 64(1)(d) of the NCAT Act provides an express exception to this, permitting the Tribunal to make an order that "evidence given before the Tribunal" or "the contents of a document lodged with the Tribunal or received in evidence by the Tribunal" withheld from a party if the Tribunal considers this to be "desirable." This can be because of the "confidential nature of any evidence" or "for any other reason". 3. Section 64 of the NCAT Act provides as follows: 64 Tribunal may restrict disclosures concerning proceedings (1) If the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, it may (of its own motion or on the application of a party) make any one or more of the following orders – … (d) an order prohibiting or restricting the disclosure to some or all of the parties to the proceedings of evidence given before the Tribunal, or of the contents of a document lodged with the Tribunal or received in evidence by the Tribunal, in relation to the proceedings. (2) The Tribunal cannot make an order under this section that is inconsistent with section 65. (3) The Tribunal may from time to time vary or revoke an order made under subsection (1). (4) For the purposes of this section, a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person. 1. The word "desirable" should be interpreted with regard to the basic common law precept of open justice (State of New South Wales (Justice Health) v Dezfouli [2008] NSWADTAP 69 at [61], with reference to the predecessor to s 64(1) of the NCAT Act, being s 75(2) of the Administrative Decisions Tribunal Act 1997 (NSW) (as it was then known)). 2. In Bellamy v Bellamy [2018] NSWSC 534 at [30], Justice Parker expressed the view that the circumstances must be "exceptional" before depriving a party of an opportunity to see all the evidence and make full submissions although guardianship proceedings were an exception to this: "Section s 64(1)(d) is a provision which applies generally to proceedings in the Tribunal. Most proceedings in the Tribunal are ordinary adversarial proceedings and in those proceedings the rules of natural justice generally apply so as to require the Tribunal to afford various procedural safeguards to the parties. One elementary safeguard is that, except in extraordinary circumstances, the rules of natural justice prevent a party from being deprived of an opportunity to make full submissions on the issues to be decided by not being provided with all of the evidence which is before the Tribunal. But guardianship proceedings are not of that character." (Emphasis added.) 1. The Appeal Panel in Bettington v Commissioner of Police [2021] NSWCATAP 110 ("Bettington") noted however that there is no express statutory requirement in the NCAT Act for the circumstances to be "special" or "extraordinary" before orders may be made under s 64 of that Act (at [41]): "We do not understand the Supreme Court in Bellamy v Bellamy [2018] NSWSC 534 or the Appeal Panel of the ADT in State of NSW (Justice Health) v Dezfouli [2008] NSWADTAP 69 to have intended to substitute a different legal test for the test set out in those provisions. In our view, the learned judge and members of the ADT used those words to emphasise that the fundamental principles of open justice and procedural fairness should not readily be displaced." 1. When exercising functions in the Guardianship Division, including applications for non-disclosure orders, the Tribunal is under a duty to observe the principles in s 4 of the Guardianship Act 1987 (NSW) (the Act) (NCAT Act, cl 5(1) of Sch 6). The views of CQH must be taken into consideration (s 4(d) of the Act) and paramount consideration is to be given to his welfare and interests (s 4(a) of the Act). Consideration 1. If orders were made under s 64(1)(d) of the NCAT Act, FZG would not have a physical copy of the material in question before or during the next hearing date. I accepted that this would impact on her ability to prepare for the second hearing day. She felt that this would create unfairness to her and would affect her ability to put her case. 2. These were factors weighing against the making of a non-disclosure order in relation to CQH's financial records. 3. I gave greater weight, however, to the following factors in deciding that it was desirable to make a non-disclosure order in this case: 1. Whilst the non-disclosure order prevented the provision to FZG of the physical copy of the material in question, the contents of the material would be able to be disclosed orally on the second hearing day and FZG would have the opportunity to respond and make submissions about that material. 2. FZG's main contention was that her brother, as attorney, was committing financial elder abuse by misappropriating the regional NSW property sale proceeds and also the sale proceeds of the livestock and equipment from that property. 3. However, on a preliminary view of the two bank transaction accounts (Bank Account 1 and Bank Account 2) provided by TNH during the course of the first hearing the sale proceeds of CQH's property were accounted for as outlined at [10]-[13] above. 4. FZG had been shown a copy of these transaction statements during the first hearing. 5. The Tribunal adjourned the first hearing with directions so that TNH could provide copies of the transaction statements for the two bank accounts. This would ensure that the best evidence was available to the Tribunal, namely, evidence that would confirm whether or not the accounts were held by CQH and whether or not they reflected the same information as contained in the statements provided to the Tribunal on the first hearing day. 6. The transaction statements were provided by TNH in accordance with the directions. They identified CQH as the account holder and mirrored the information contained in the transaction accounts shown to FZG on the first hearing day. 7. FZG's primary contention in her substantive application was that her brother had misappropriated these funds and that they were not in her father's accounts. By being shown the documentary evidence provided by TNH on the first hearing day, which was mirrored in the transaction statements produced pursuant to the directions FZG would, in my view, be in a position on the second hearing day to present her case about her primary contention that the sale proceeds of the regional NSW property had been misappropriated by TNH. She would, in my view, have a reasonable opportunity to be heard and have her submissions considered in the hearing: NCAT Act, s 38(5)(c). 8. The Tribunal hearing the substantive applications had yet to determine whether or not to conduct a review of the enduring power of attorney pursuant to s 36(1) of the Powers of Attorney Act 2003 (NSW) or whether to proceed with hearing the financial management application. 9. Particularly in a context such as this one where the Tribunal had not yet determined whether to proceed with a review of the operation and effect of the enduring power of attorney, I gave significant weight to the views of CQH in deciding whether to make the non-disclosure order (s 4(d) of the Act). The mere fact that CQH has a diagnosis of vascular dementia and is affected by this condition in his day-to-day life did not, in my view, prevent him from providing a clear and emphatic objection to FZG have access to his bank statements and financial information. His evidence was that he would never have provided such information to his daughter in the past. CQH's responses were consistent with what all parties agreed was his past behaviour concerning his financial affairs, that he was private about his financial affairs and that he would not have shared his financial information with family members when he was in charge of his own finances. 10. The circumstances in which an order may be made under s 64(1) of the NCAT Act do not have to be "special" or "extraordinary" (Bettington, [41]). In my view, given the stage of the substantive proceedings where it is yet to be determined whether a review of the enduring power of attorney will be conducted and CQH's strong objection to the provision of the physical copies of the material to FZG, it was desirable that a non-disclosure order be made in accordance with s 64(1)(d) of the NCAT Act especially in circumstances where the content of the material can be discussed and addressed by parties orally on the second hearing day. 1. In my view, it was also desirable that the additional financial material voluntarily provided by TNH (that is, the "EPOA account" held in the name of TNH and copies of receipts and records of spending on behalf of CQH following his move to Queensland) was made subject to the non-disclosure order. Issues concerning CQH's day-to-day expenses and how they have been managed by the attorney were not the focus of the applications lodged by FZG. These are secondary to the serious allegations of financial abuse made by FZG and can also be dealt with by way of oral evidence and submissions on the second hearing day. 2. TNH also provided a covering letter (dated 7 October 2023 date stamped as received on 9 October 2023) that included full account number details in relation to CQH's two bank accounts. I decided that it was desirable to include this covering letter in the non-disclosure order. TNH subsequently filed a covering letter without the full account number details and this document was provided to all parties. ********** 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: 24 May 2024