Civil and Administrative Tribunal New South Wales Medium Neutral Citation: QP v RP [2014] NSWCATAP 59 Hearing dates: 28 August 2014 Decision date: 09 October 2014 Before: N Hennessy, LCM Deputy President S Leal, Senior Member L Stewart, General Member Decision: The appeal is dismissed Catchwords: ADMINISTRATIVE LAW - Civil and Administrative Tribunal (NSW) - appeal - procedure - Guardianship Division hearing - financial management order - financial manager - procedural fairness - reasonable opportunity to be heard - whether to grant leave to appeal - Civil and Administrative Act 2013, s80(2) - consideration of views of persons with disabilities - whether appealable decision - application for admission of further or fresh evidence. Legislation Cited: Civil and Administrative Act 2013 (NSW) Guardianship Act 1987 (NSW) Interpretation Act 1987 (NSW) NSW Trustee and Guardian Act 2009 (NSW) Cases Cited: BEX (2012) NSWGT 11 Building Professionals Board v Hans (2008) NSWADTAP 13 CDJ v VAKJ (1998) 197 CLR 172 Collins v Urban [2014] NSWCATAP 17 Gianoutsos v Glykis(2006) NSWCCA 137 Holt v Protective Commissioner (1993) 31 NSWLR 227 K v K (2000) NSWSC 1052 Category: Principal judgment Parties: QP (Appellant) RP (First Respondent) ST (Second Respondent) TT (Third Respondent) Representation: QP (Appellant in person) RP (Respondent in person) ST (Respondent in person) TT (Respondent in person) File Number(s): AP 14/46429 (AP 14/0251) Publication restriction: The publication or broadcast of the name of any person to whom these proceedings relate, without the consent of the Tribunal, is an offence under the Civil and Administrative Tribunal Act 2013, s 65(2). Decision under appeal Jurisdiction: 150004 Date of Decision: 2014-05-27 00:00:00 Before: R Gurr S Stone J Koussa File Number(s): C/54901 reasons for decision Introduction 1RP is an elderly man who lives in his own home. His son, QP, and his daughter ST, both live nearby. QP has appealed against a decision of the Guardianship Division of the Tribunal ('the Tribunal') appointing his sister and her husband TT jointly as his father's financial managers. He has not appealed against the Tribunal's decision to appoint ST and TT as his father's guardians. QP wants the Appeal Panel to amend the financial management order so that he can participate in the management of his father's financial affairs. 2In a submission to the Appeal Panel, he stated that he wants to be able to . . . monitor [his] father's actions and all work being executed by ST and TT in their delegated positions. 3The Appeal Panel does not have power to make an order of that kind. Under s 25M of the Guardianship Act 1987 (NSW), if the Tribunal makes a financial management order it may appoint either a 'suitable person' to manage that estate or commit the management of the estate to the NSW Trustee. 4We agree with the Tribunal's view, expressed in BEX (2012) NSWGT 11 at [34] that although the Guardianship Act refers to a 'suitable person', the Tribunal can appoint more than one suitable person to manage an estate: Interpretation Act 1987 (NSW), s 8(b). The Tribunal has no power to make an order appointing an individual, such as QP, to monitor or supervise the management of a person's estate. If a 'suitable person' is appointed, that person is subject to the direction of the NSW Trustee and Guardian: NSW Trustee and Guardian Act 2009 (NSW), s 66. 5At the hearing, QP amended his appeal by agreeing that the order he is seeking is that he, his sister and her husband jointly manage his father's financial affairs. 6QP has the right to appeal on a question of law but must obtain the Appeal Panel's permission or 'leave' to appeal on any other ground: Civil and Administrative Tribunal Act 2014 (NSW) (NCAT Act), s 80(2)(b). We have decided that the Tribunal made its decision according to law and there is no other reason why the decision should be changed. Background 7On 16 November 2004, RP signed an Enduring Power of Attorney appointing his son, QP, and his daughter, ST, jointly. ST refused to accept the appointment because she felt she would be unable to work with her brother. 8On 15 November 2013, ST applied to the Tribunal for the appointment of a financial manager and guardian for her father. The Tribunal appointed a separate representative to represent his interests. A week later, RP signed an Enduring Guardianship document appointing his son, QP, as his guardian and a further Enduring Power of Attorney appointing QP as his attorney. Both documents were revoked on 14 January 2014. Tribunal's decision in relation to financial management 9The Tribunal appointed ST and TT jointly as RP's financial managers, subject to the directions and authorities of the NSW Trustee and Guardian. The Tribunal decided not to carry out a review of the enduring power of attorney made by RP on 22 November 2013 which appointed QP as attorney. 10In accordance with s25G of the Guardianship Act, the Tribunal may make a financial management order in respect of a person only if the Tribunal has considered the person's capability to manage his or her own affairs and is satisfied that: (a)the person is not capable of managing those affairs, and (b)there is a need for another person to manage those affairs on the person's behalf, and (c)it is in the person's best interests that the order be made. 11The Tribunal was satisfied as to each of those matters and none of the grounds of appeal relate to those findings. In summary, the Tribunal found that RP was incapable of making an appointment under the Enduring Power of Attorney and that there was no existing Enduring Power of Attorney in operation. On this basis, the Tribunal found that there was no 'clear, legally authoritative and satisfactory way for [RP's] financial affairs to be managed now that he is unable to arrange that himself.' In light of the conflict between QP and ST, there was a need for external scrutiny of RP's affairs. 12The Tribunal then considered who should be appointed as financial manager. The separate representative suggested that ST and her husband, TT, be appointed jointly. ST and TT agreed. Although QP indicated in his submissions to the Tribunal that he should continue to manage his father's financial affairs, the Tribunal noted in its reasons that QP 'indicated that he no longer wanted to be involved in his father's affairs' and left the hearing prior to its conclusion. According to the Tribunal, it was for that reason that his views about being appointed as financial manager could not be canvassed. In those circumstances the Tribunal did not consider him for appointment to that role. 13The Tribunal found that ST was close to her father and, together with her husband TT, had given him great assistance. As the manager of a hospital, the Tribunal found that TT would have the skills to manage an estate of the size and complexity of RP. The Tribunal was satisfied that neither the financial affairs of ST nor TT were entwined with those of RP. 14Taking into account these matters, the Tribunal was satisfied that ST and TT had the advantages of family members as set out in Holt v Protective Commissioner (1993) 31 NSWLR 227 and were suitable persons to be appointed jointly as financial managers for RP, subject to the supervision of the NSW Trustee and Guardian. Grounds of Appeal 15Rather than setting out the grounds of appeal in the Notice of Appeal, QP provided two written submissions. QP has one ground of appeal that identifies a question of law and several other grounds for which QP seeks leave to appeal. Question of law 16The only ground of appeal which potentially identifies a question of law is QP's submission that he was 'void of any representation of input' because the separate representative for his father did not interview him prior to the hearing. It would be a breach of the NCAT Act and the common law rules of procedural fairness if the Tribunal did not ensure that QP had 'a reasonable opportunity to be heard or otherwise have (his) submissions considered in the proceedings': NCAT Act, s 38(5)(c). 17QP attended the hearing before the Tribunal. He did not say to the Appeal Panel that he had been denied a reasonable opportunity to present his case. The fact that the separate representative for his father did not speak to him and convey his views to the Tribunal did not prevent QP from being heard or having his submissions considered. The Tribunal did not breach s 38(5)(c) or the common law rules of procedural fairness. Leave to appeal 18QP seeks leave to appeal on the following "other grounds": (1)At the time of the hearing RP was not able to understand the questions that the Tribunal members were asking him nor was he able to respond in a reliable manner. For that reason the Tribunal should not have relied on his views. (2)The presiding member was mistaken in her view that QP left the hearing before the end of the proceedings. If he did leave prematurely he did not hear about any other options available to him. (3)The Tribunal did not address QP's complaint against the separate representative for RP, prior to the hearing. (4)ST and TT put forward erroneous information. (5)Events which have occurred since the hearing indicate that his father's views have changed. 19The NCAT Act does not provide any guidance as to the considerations that are relevant when determining whether to grant leave. Those principles must be derived from other sources including the objects of the Act and the nature of the appeal. The guiding principle when interpreting the legislation "is to facilitate the just, quick and cheap resolution of the real issues in the proceedings": NCAT Act, s 35. 20In K v K (2000) NSWSC 1052, a case which dealt with an appeal from the former Guardianship Tribunal, Young J observed in relation to the granting of leave at [15] that: . . .it is very unlikely that the Court will grant leave to appeal when there is a problem with a fact finding exercise unless there are clear indications that the Tribunal has gone about that fact finding process in such an unorthodox manner or in a way which is likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed. 21The Appeal Panel has recently considered the principles which generally guide the consideration of whether leave to appeal should be granted under s 80(2) of the Act: see Collins v Urban [2014] NSWCATAP 17. At [84] the Panel summarised the principles (citations deleted): (1) In order to be granted leave to appeal, the applicant 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: (2) Ordinarily it is appropriate to grant leave to appeal only in matters that involve: (a) issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; or (c) 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; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) 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, (3) In relation to an application for leave to appeal relating to a question of practice and procedure, the application is to be approached with the restraint applied by an appellate court when reviewing such decisions, especially if the application is made during the course of a hearing RP's ability to understand and respond reliably 22In his written submissions QP wrote: At the time of the hearing, my father was not in a position to show the Tribunal his true feelings and wishes. He was unable to understand that put to him and/or respond in a reliable way...His response varied each time on repetitive questions. He was prone to ranting on about matters not at all related to the subject or conversation and had [no] understanding as to which party his response was associated or directed to...This situation should have seen the Tribunal move to rely on the information being put forward by others as a primary means of ascertaining reliable evidence....Instead the Tribunal moved continually to seek Dad's opinion and Dad's opinion was not only unreliable, subject to change at any time, it was wrought and distorted by erroneous and misleading information being put to him by others.' 23In oral submissions before the Appeal Panel, QP submitted that RP needed to be included in the Tribunal hearing, but that the degree to which the Tribunal relied on his opinion was a concern. 24Under s 4 of the Guardianship Act it is the Tribunal's duty to take RP's views into consideration. RP gave evidence as to his views and the Tribunal took that evidence into account. He consistently expressed the view that he was not prepared for his son, QP, to act alone as his financial manager. The Tribunal was satisfied that, while unable to manage his own affairs, RP was able to express this view and that it was a view that he had held consistently. That finding is supported by the account the Tribunal gave of QP's evidence. Other than RP's assertion, there is no basis for finding that this account was not an accurate or reliable account of RP's views. QP has not established that the Tribunal made a factual error, took into account an irrelevant consideration or done anything else which would justify leave being granted. QP leaving the hearing 25In the reasons for decision, the Tribunal explained its understanding of the circumstances in which QP left the hearing and the consequences of his actions: [QP] voluntarily left the hearing shortly before it was concluded. No reason was provided which would have caused the Tribunal not to proceed to conclude the hearing in his absence." (page 3) [QP] had chosen to leave the hearing before the hearing had concluded. As he was leaving the hearing room he indicated that he no longer wanted to be involved in his father's affairs but his views in relation to this proposal were not able to be fully canvassed. Given that he has previously said he wanted to manage his father's affairs himself, the Tribunal was left unclear about his views but we have concluded he would likely be opposed to this proposal and accordingly we have taken this view into account. The Tribunal was also not able to canvass with him the possibility of him being appointed as financial manager. (page 15) 26Although this account suggests that QP left the hearing early, both QP and ST agree that QP stayed until the end, or until very close to the end, of the hearing. QP did not deny that he told the Tribunal as he was leaving that he no longer wanted to be involved in his father's affairs. 27Neither the tape of the Tribunal's proceedings nor the transcript was in evidence. Even if we were to find that the Tribunal was mistaken in its understanding that QP left the hearing before it had concluded, QP told the Appeal Panel that he had mentioned this incident because he wished 'to correct the record'. He also told the Appeal Panel that the statement on the record that QP had left the hearing early 'had no impact on the decision.' These concessions implicitly acknowledge that any misunderstanding by the Tribunal in relation to this incident did not produce an unfair result nor is it in the interests of justice for its finding to be reviewed. Failure of Tribunal to address QP's complaint against the separate representative 28The Tribunal appointed a separate representative for RP under s 45(4) of the NCAT Act. QP had proposed that a private solicitor represent his father but withdrew that application because the Tribunal had assured him that a separate representative would be appointed. Prior to the hearing, QP complained to the Tribunal that the separate representative had not interviewed him. QP is aggrieved that the Tribunal allowed the separate representative to continue to represent RP and took his opinion into account when QP's complaint had not been considered. 29The Tribunal decided not to address QP's complaint prior to the hearing and set out its reasons for not doing so in the decision: We did not consider the hearing an appropriate forum for dealing with this, save for a consideration of QP's views on any matters of substance in (the separate representative's) submissions, in so far as they were relevant to the issues we had to consider. 30A complaint that the Tribunal failed to address a grievance about a separate representative at the hearing is not a decision about which QP may appeal. QP has a right to appeal against an 'appealable decision'. The Appeal Panel has internal appeal jurisdiction over "any decision made by the Tribunal in proceedings for a general decision": NCAT Act, s 32(1). The decision not to address a complaint against a separate representative at a hearing of the substantive application is not a decision made in the proceedings. For that reason the Appeal Panel does not grant leave to appeal on this ground. Erroneous material put forward by ST and TT 31QP submits that ST and TT put forward erroneous and misleading information and that the Tribunal wrongly considered that information. In particular, QP denied that he had bullied RP, a client of RP or the client's wife. Further allegations were that QP had borrowed money from RP which he had never repaid and that he was moving 'to take over all of Dad's affairs void of Dad's knowledge including the selling of his properties and his vehicles.' 32In the reasons for decision the Tribunal refers to evidence from TT that QP had "actively obstructed RP from receiving necessary care and treatment", The Tribunal also notes that TT was 'inclined to be critical of the (financial) information provided by her brother on the basis that independent valuations and verification by the provision of tax returns etc. had not occurred." Despite this evidence, the Tribunal concluded that the information had been collected in good faith and with reasonable diligence and that it was a reasonable summary of QP's financial position. The decision also records that TT expressed that view that QP was not managing his father's affairs prudently, for example that he had been paying for legal advice from multiple solicitors in relation to these and other proceedings. The Tribunal found that QP had not acted "in any untoward or exploitative way towards his father." 33QP was present at the Tribunal hearing and had the opportunity to respond to any allegation TT made about his conduct. In addition, the Tribunal made no adverse findings about any of those allegations other than that QP and TT could not work together because of the conflict between them. In those circumstances leave is not granted for this ground of appeal to proceed. Events since the Tribunal's decision 34QP submitted that since the Tribunal hearing his father has changed his mind about having ST and TT as his financial managers. This submission appears to relate to RP being unable to contact ST on several occasions and RP's understanding that he remains able to manage his own affairs. 35In referring to subsequent events, the Appeal Panel assumes that QP is applying for the admission of further or fresh evidence. The authorities make it clear that any such evidence must relate to the Tribunal's decision at first instance and must be evidence which was relevant at that time to that decision. In Building Professionals Board v Hans (2008) NSWADTAP 13, the Tribunal stated at [54]: If the Appeal Panel is to exercise its discretion in favour of the party applying for leave - and I interpolate that that is leave to adduce further evidence - it must be affirmatively satisfied that having regard to the findings of the Tribunal at first instance the further evidence if tendered at the hearing conducted by the Tribunal was likely to have produced a different result. 36The Court of Appeal reached the same conclusion in Gianoutsos v Glykis(2006) NSWCCA 137. The Court reviewed the decisions in relation to the admissibility of further or fresh evidence and quoted at [37] the principle set out in CDJ v VAKJ (1998) 197 CLR 172, 201-202. As in that case, this appeal is not a hearing de novo. For present purposes, the critical difference between an appeal by way of rehearing and a hearing de novo is that, in the former case, the powers of the appellate court are exercisable only where the appellant can demonstrate that, having regard to all the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error. 37It is the decision at first instance that the Appeal Panel must examine. It is not relevant to an examination of that decision whether the circumstances have changed since that time. The information put forward by QP in support of this ground is not evidence which was relevant to the Tribunal's decision at that time. It is simply information in relation to the assertion that, since the hearing, RP has changed his mind as to how he wishes his affairs to be managed. On this basis, the Tribunal finds that the information should not be admitted on appeal. Leave to appeal on this ground is refused. Conclusion 38In relation to the question of who should be appointed as RP's financial manager or managers, the Tribunal made no error of law nor has QP put forward any other ground which would justify leave being granted. The appeal is dismissed. I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Principal Registrar ******** 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: 09 October 2014