Appeal Panel - Internal CITATION: EE v Protective Commissioner and ors (GD) [2008] NSWADTAP 35 This decision has been amended. Please see the end of the decision for a list of the amendments. APPELLANT EE FIRST RESPONDENT Protective Commissioner PARTIES: SECOND RESPONDENT ED THIRD RESPONDENT CD FILE NUMBER: 089008 HEARING DATES: 12 May 2008 SUBMISSIONS CLOSED: 12 May 2008 EXTEMPORE DECISION DATE: 12 May 2008 DATE OF DECISION: 12 May 2008 BEFORE: Hennessy N - Magistrate (Deputy President); Pearson L - Judicial Member; Bolt M - Non Judicial Member CATCHWORDS: Leave to extend to the merits MATTER FOR DECISION: Principal matter DECISION UNDER APPEAL: CD v Protective Commissioner and ors [2008] NSWADT 33 FILE NUMBER UNDER APPEAL: 073258 DATE OF DECISION UNDER APPEAL: 01/21/2008 LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Guardianship Act 1989 CASES CITED: The Building Professional Board v Hans [2008] NSWADT AP 13 Lloyd v TCN Channel 9 Pty Limited & Anor [1999] NSWADT AP 3 APPELLANT In person FIRST RESPONDENT T Tunbridge, solicitor REPRESENTATION: SECOND RESPONDENT In person THIRD RESPONDENT In person 1. Leave is granted for the appeal to extend to the merits of the Tribunal's decision ORDERS: 2. The Tribunal's decision of 21 January 2008 is set aside 3. In substitution for that decision a decision is made to sell the property at Toongabbie and discontinue the sale of the property at Winston Hills. Section 126 of the Administrative Decisions Tribunal Act 1997 applies to this decision. Section 126 provides (1A) This section applies only to the following: (a) proceedings in the Community Services Division of the Tribunal, (b) appeals to an Appeal Panel from a decision made by the Tribunal in the Community Services Division, (b1) proceedings in relation to an external appeal made under section 67A of the Guardianship Act 1987 or section 21A of the Protected Estates Act 1983, (b2) proceedings in relation to a reviewable decision made under the Guardianship Act 1987 or the Protected Estates Act 1983 (c) such other proceedings (or class or classes of proceedings) as may be prescribed by the regulations for the purposes of this section. (1) A person must not, except with the consent of the Tribunal, publish or broadcast the name of any person: (a) who appears as a witness before the Tribunal in any proceedings, or (b) to whom any proceedings before the Tribunal relate, or (c) who is mentioned or otherwise involved in any proceedings before the Tribunal, whether before or after the proceedings are disposed of. Maximum penalty: 10 penalty units or imprisonment for 12 months, or both. (2) This section does not prohibit the publication or broadcasting of an official report of the proceedings that includes the name of any person the publication or broadcasting of which would otherwise be prohibited by this section. (3) 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. REASONS FOR DECISION 1 This is an appeal from a decision of the Tribunal reviewing a decision of the Protective Commissioner to sell certain property belonging to Mrs X. Below is the transcript of the oral reasons for decision. 2 Ms X is an elderly woman who has lived in a nursing home since July 2005. She has a moderate level of dementia. The Protective Commissioner was appointed to manage her financial affairs on 14 July 2006. That appointment suspended an enduring power of attorney held by one of Ms X's daughters (CD), who we will refer to in these reasons as daughter A. At the time the matter came before the Tribunal Ms X had considerable debts but owned three properties, one at Toongabbie in which she had lived prior to going into the nursing home, one at Winston Hills and one at Berkley Vale. Both the Winston Hills and Berkley Vale properties are vacant land. 3 The immediate issue for the Office of the Protective Commissioner (OPC) was which of these properties to sell in order to pay Ms X's debts and provide income for her living expenses. Because of the ongoing dispute between Ms X's daughters as to which of these of these properties should be sold the Protective Commissioner advised the Appeal Panel, at the commencement of these proceedings, that they have loaned Ms X $100,000 secured over mortgages on each of the three of her properties at an interest rate 8 percent. The Protective Commissioner has now paid Ms X's debts to the nursing home of $23,324.56 and to Centrelink of $41,903.31. The Protective Commissioner has also paid some other bills including electricity bills and his management fees. 4 Daughter A is in dispute with two of Ms X's other daughters (EE and ED) who we will refer to as daughters B and C. The dispute is in relation to which of the three properties should be sold. Daughter A says that one or other of the vacant blocks of land should be sold in preference to the Toongabbie property mainly because that is her understanding of her mother's wishes. She also says that some of Ms X's property is still in that home. Daughters B and C support the sale of the Toongabbie property in preference to the sale of either of the blocks of land. 5 The original decision of the Protective Commissioner was made by Ms Minns on 10 May 2007. That decision was to sell the Winston Hills property and to lease the Toongabbie property. Following that decision, daughters B and C requested an internal review. On 30 July 2007 the Protective Commissioner made an internal review decision to sell the Toongabbie property and discontinue the sale of the Winston Hills property. The internal review decision was based, in part, on a finding that the Toongabbie property was un-rentable and would require considerable funds to make it rentable. Mr Lester, the officer who conducted the internal review, did not specify the evidence on which he made the finding that the Toongabbie property was un-rentable. 6 As it transpires, that evidence was a memorandum from Mr Benjamin Preston, an internal valuer with the OPC, who inspected the property on the 5 June 2007. We note, that that date is after the original decision was made so that Ms Minns did not have the benefit of that opinion at the time she made her decision. Mr Preston's expert view was that the property was not in a condition to attract a suitable tenant and he recommended that it was not financially prudent to renovate the house to bring it into a rentable condition. He also detailed the repairs that would have to be made in order to put the property in a state where it could be rented. 7 Daughter A applied to the Tribunal for a review of the decision made by Mr Lester. Through an oversight, the memorandum from Mr Preston was not included in the documents that the OPC provided to the Tribunal. When it made its decision the Tribunal said, at paragraph 22 that "There is no evidence before the Tribunal that the Toongabbie property is presently un-rentable. It appears that a valuation or market appraisal was obtained by the Protective Commissioner's Office which gives a projected rental value for the property of $220 to $230 a week." The Tribunal went on to say, in paragraph 23, that there was also no evidence before the Tribunal as to why funds needed to be invested in the property to make it rentable when it had been appraised as being able to earn a rental of between $220 and $230 per week. 8 The Tribunal concluded that, "There is no evidence that the property requires substantial renovation. One would think it would not cost significant money to have the overgrowth outside of the property removed and the contents inside the property removed to provide vacant possession to a tenant." On the basis of the evidence before the Tribunal at the time, the Tribunal decided that the correct decision was to sell the Winston Hills property and lease the Toongabbie property. 9 Daughter B appealed to the Appeal Panel against that decision. On 15 February 2008, by consent, the Tribunal's decision was stayed pending further orders. Daughter B's notice of appeal sets out several grounds of appeal including: 1) that the decision-maker made a finding of fact where there was no evidence to support the finding; 2) that the decision maker did not give her an adequate opportunity to present her case; 3) that the decision maker did not give her an adequate opportunity to respond to any relevant information, which was against her. 10 She also sought leave to review the merits of the decision. 11 Section 113 of the Administrative Decisions Tribunal Act 1997 (ADT Act) sets out the rights a party has to appeal to the Appeal Panel. Section 113(2) states that, An appeal under this Part: (a) may be made on any question of law, and (b) with the leave of the Appeal Panel, may extend to a review of the merits of the appealable decision. 12 When daughter B was asked to outline her grounds of appeal it appears that her main ground of appeal was the fact that Mr Preston's memo had not been before the Tribunal when the Tribunal made the decision. Daughter B included a copy of Mr Preston's memo with her notice of appeal and, although she did not say so expressly, sought to tender that document as evidence before the Appeal Panel. 13 In addition, Mr Tunbridge, representing the OPC, requested that an affidavit from Mr Preston, dated 28 March 2008, be tendered to the Appeal Panel. It became apparent to the Appeal Panel that the real issue in this case was the fact that the Tribunal had decided the matter at first instance without the benefit of critical evidence that was on the Protective Commissioner's file but through an oversight was not brought to the Tribunal's attention. On that basis we have not addressed daughter B's grounds of appeal in relation to purported errors of law but rather have focused on her application for leave for us to review the merits of the Tribunal's decision. 14 The principles on which the Tribunal would extend an appeal to the merits of the Tribunal's decision when no error of law has been disclosed were set out in some detail in a recent decision of the Tribunal; The Building Professional Board v Hans [2008] NSWADT AP 13, 12 March 2008. At paragraph 31 the Appeal Panel quoted a decision in Lloyd v TCN Channel 9 Pty Limited & Anor [1999] NSWADT AP 3 where Judicial Member Smith agreed that leave should be granted to extend an appeal to the merits of the decision and suggested, at paragraph 151, that this should be done where, for example, "An appellant could point to some blatant and important error of fact which called for a remedy by an Appeal Panel in the interests of justice" or where the appeal "Could be shortly and conveniently disposed of by turning directly to the merits of the decision under appeal without having to address the frustrating technical distinction between error of fact and error of law." 15 Our decision is to grant leave to extend this appeal to the merits on the basis that critical evidence that was not before the Tribunal has now come to light. Having made that decision we have a choice of remitting the matter to the Tribunal at first instance or determining the merits of the matter ourselves. Given the fact that the OPC has loaned money to Ms X and that she is paying interest on that loan in circumstances where she has assets which would potentially cover her liabilities, we consider the urgency of this case means that we should deal with the merits ourselves rather than remitting the matter to the Tribunal. 16 The next decision that the Appeal Panel needs to make is whether or not to accept the fresh evidence provided by daughter B and the OPC. Again, in Building Professionals Board v Hans the Appeal Panel set out five principles which should govern an Appeal Panel's decisions as to whether or not to admit further evidence on appeal. I will not repeat those principles in these reasons but they are set out at paragraphs 53 to 57 of the Appeal Panel's reasons. In summary, the points that are made there, as they relate to this case, are that: (i) there is no need to show an error of law before allowing new evidence; (ii) there is no obligation to prove that the admission of the new evidence would produce the opposite result to that produced at the Tribunal level, however, the evidence must be more than just useful; (iii) there is an overriding obligation in the circumstances of this case that Ms X's welfare should be given paramount consideration; (iv) that the stress, inconvenience, uncertainty and cost of taking into account the new evidence should be considered; and (v) that it does not matter what the reason was for the evidence not being before the Tribunal at first instance as long as it was not deliberately withheld. 17 Taking into account those principles we determine that the new evidence, being the memo that daughter B submitted and the affidavit submitted by the OPC should be considered by the Appeal Panel. 18 Our next task is to determine what the correct and preferable decision is in accordance with the principles in section 63 of the Administrative Decisions Tribunal Act 1997. Importantly, we must take into account the principles in section 4 of the Guardianship Act 1989 which say that, "It is the duty of everyone exercising functions under this Act with respect to persons who have disabilities to observe the following principles." Eight principles are then set out, the most relevant of which, in the context of these proceedings, are a, d, e, and g. Paragraph a) says that, "The welfare and interest of such persons should be given paramount consideration." Paragraph (d) states, "That the views of such persons in relation to the exercise of those functions should be taken into consideration." Paragraph (e) says that we must take into account, "The importance of preserving the family relationships and the cultural and linguistic environments of such persons." Paragraph (g) states that "Such persons should be protected from neglect, abuse and exploitation." 19 The evidence before the Tribunal and the Appeal Panel about the views of Ms X were basically the evidence of daughter A as to what she says her mother has told her and that is that her mother does not want the property at Toongabbie to be sold. Daughter A has been adamant that that is her mother's view. We do not have any direct evidence from Ms X as to her views but the parties agree that Ms X has moderate dementia. That is not to say that she cannot express a view and that is not to say that it is not her view that the property should remain unsold. However, of more weight is Ms X financial best interests. Ms X is not realistically going to be able to live in her home in Toongabbie again. We do not doubt that she may have some sentimental attachment to the home and she may not wish it to be sold. However, we must examine her financial interests on a more objective basis and look at what we regard as in her best interests. 20 It has been put to us that it would be preferable to sell either of the blocks of land because there are outgoings on those blocks including rates and land tax whereas the Toongabbie property is free from land tax. It was also put that the property values of the blocks of land will increase whereas the land in Toongabbie would be likely to decrease. There was no expert evidence in relation to the potential rise or fall in the value of any of the properties but it was agreed among the parties that the Toongabbie property is the value of the land only. The persuasive argument from the Appeal Panel's point of view is that neither of the other two blocks land, have any property on them whereas the Toongabbie property has a home on it, which is unlikely ever to be occupied again. That is because of the cost involved in bringing that property to a state where it could be rented out. 21 We also understand that the property is uninsured and it is at risk for that reason. It will continue to decrease in value due to the state that it is in and there is potential danger if it remains unattended. Even if daughter A acts as a caretaker to the property that does not seem to us to be a practical alternative when the house is in such a state of disrepair and a potential danger to others. Ultimately, we have to decide between Ms X's views and her sentimental attachment to the property and what is in her financial best interests. Our decision based on all the evidence before us, including the evidence on the file that the Tribunal below had before it, is that the correct and preferable decision is to set aside the Tribunal's decision to sell the Toongabbie property and to discontinue the sale of the Winston Hills property. We note that the interim order lapses on the making of this order. 20/06/2008 - Delete word "not" - Paragraph(s) 16 (iv) 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.