Civil and Administrative Tribunal New South Wales Medium Neutral Citation: BTD v NSW Trustee and Guardian [2015] NSWCATAP 87 Hearing dates: 8 April 2015 Date of orders: 08 May 2015 Decision date: 08 May 2015 Jurisdiction: Appeal Panel Before: N Hennessy LCM, Deputy President D Robinson, Principal Member J Koussa, General Member Decision: (1)The appeal on a question of law is dismissed. (2)Leave is refused for the appellant to appeal on any other ground. Catchwords: GUARDIANSHIP – internal appeal - operation and effect of power of attorney – question of law - procedural fairness – evidence adduced from person in absence of other parties – appeal on 'other grounds' – weight of evidence - incorrect evidence and mistakes of fact - further evidence - Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Guardianship Act 1987 (NSW) Powers of Attorney Act 2003 (NSW) Category: Principal judgment Parties: BTD NSW Trustee and Guardian BTE BTF BTG Representation: BTD (Applicant in person) BTG (4th Respondent) File Number(s): 14/60558 Publication restriction: The publication of the name of any of the parties or other people referred to this decision 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 Date of Decision: 22 October 2014 Before: S BurnsC WestM Williams File Number(s): C 56/068 REASONS FOR DECISION Introduction 1. BTD applied to the Guardianship Division of the Tribunal to carry out a review of a power of attorney her grandmother (BTF) made on 22 May 2013. In that document BTF had appointed her son, BTE and her daughter BTG (BTD's mother) as her attorneys. On 22 October 2014 the Guardianship Division of the Tribunal decided not to carry out a review of the enduring power of attorney. BTD has appealed to the Appeal Panel against that decision. 2. Both the appellant, BTD and her mother BTG, participated in the hearing by phone. None of the other parties appeared. 3. BTD is entitled to appeal against the Guardianship Division's decision 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 2013 (NSW) (NCAT Act), s 80(2)(b). 4. The Guardianship Division conducted a hearing on 22 October 2014 and made the orders on that day. The reasons for decision were provided to the parties on 19 November 2014. As the appeal was lodged on 18 December. 2014, it was filed in time: Civil and Administrative Tribunal Rules, reg 25(4)(c). Tribunal's decision 1. On 22 May 2013, BTF appointed her children BTE and BTG as her attorneys. BTD applied for orders relating to the making of, and the operation and effect of, the enduring power of attorney (EPOA). The application alleged that BTE had been using BTF's money for his own use and that BTF was not allowed to spend any of her own money. 2. Under the heading ""Why do you think a review of the enduring power of attorney is needed" BTD wrote: Because [BTE] took $80,000 and put it in accounts - $50,000 in his name, $30,000 in an account with his name on the authority. He has spent $14,000 from her other account and now he says he only has another 22 months to pay the nursing home fees. He took the money because he has made remarks he is happy if she dies so he can keep the money for himself. He has told [BTF] and [BTG] they are not allowed to spend any money. but he has been taking money for himself. She, [BTF] was held under duress by [BTE] to hand over the money to him. 1. The $80,000 referred to in the application was money from the sale of a property owned by BTF in Estonia. The Tribunal interpreted BTD's case to be: [BTD] clarified that her main concern with the EPOA related to its operation and effect and she asserted [BTE], one of the attorneys was not acting in [BTF's] best interests and unduly influenced the principal to give away 2/3 of her capital and was not ensuring her own needs were met out of her funds. She was also paying higher accommodation fees and missing out on interest as a result. 1. The Tribunal noted that BTF "was aware that [BTD] had received monies from [BTE] to reimburse her for her expenses in travelling to Estonia and arranging the sale of the property and also some funds directly from her mother and from BTF herself." The Tribunal found that: There was no evidence to support [BTD's] concerns that [BTE] was utilising any of [BTF's] funds for his own purposes, that any accounts were outstanding or that her needs were not being fully met under the arrangements with the attorneys. 1. BTD denies that she has received any money whatsoever to reimburse her for the time she spend renovating the property in Estonia. 2. The Tribunal set out what must be proved to make an order relating to the making and the operation and effect of the enduring power of attorney. It then set out the evidence and the issues in dispute. The Tribunal was not satisfied that there was a need to review the enduring power of attorney. It found that BTF had the capacity to enter into the enduring power of attorney and that the document reflected her wishes as at that date. The Tribunal also found that BTF continued to be of the view that her two children should act as her attorneys under the instrument. In those circumstances, the Tribunal was satisfied that it was in the best interests of BTF to dismiss the application to review the making of and the operation and effect of the enduring power of attorney. 3. The Tribunal's formal orders were under s 36(1) of the Powers of Attorney Act 2003 (NSW), not to carry out a review of the enduring power of attorney made by BTF on 22 May 2103. The Tribunal also determined, under s 36(2) of the same Act not to make any order under s 36 and dismissed the application for a review of the enduring power of attorney. Grounds of appeal on questions of law Procedural fairness 1. The only ground of appeal on a question of law was that the Tribunal had denied BTD procedural fairness by excluding her (and the other parties) from the hearing while the Tribunal members took evidence from BTF. Her solicitor, Mr Williams, was also present. BTD said that being excluded meant that she was denied procedural fairness because she was not on notice of the evidence that would be given at the hearing. According to BTD, BTE coached BTF the night before the hearing as to what she should tell the Tribunal. 2. In the reasons for decision at p 5, the Tribunal explained why it excluded the other parties when BTF gave evidence: "Given the conflict amongst the participants, the Tribunal decided to take evidence from BTF on her own with her solicitor, Mr Williams, present and report back to the other parties and participants." 1. The Guardianship Division is required to comply with the rules of procedural fairness, which are also known as the rules of natural justice: NCAT Act, s 38(2). Those rules require that a person be afforded a fair and unbiased hearing before decisions are taken which affect them: Aronson, Dyer and Groves, Judicial Review of Administrative Action, (5th ed 2013 LawBook Co) at 397. In particular the hearing rule, which is an element of procedural fairness, requires that a decision-maker hear a person before making a decision affecting their interests. McHugh J spoke generally of this rule in Re Refugee Tribunal; ex parte Aala [2000] HCA 57; (2000) 75 ALJR 52 at 73: One of the fundamental rules of the fair hearing doctrine is that a decision-maker should not make an adverse finding relevant to a person's rights, interests or legitimate expectations unless the decision-maker has warned that person of the risk of that finding being made or unless the risk necessarily inheres in the issues to be decided. It is a corollary of the warning rule that a person who might be affected by the finding should also be given the opportunity to adduce evidence or make submissions rebutting the potential adverse finding (Mahon v Air New Zealand Ltd [1983] UKPC 29; [1984] AC 808 at 820-821.) 1. The content of the hearing rule must be "appropriate and adapted to the circumstances of the particular case": Kioa v West [1985] HCA 81; (1985) 159 CLR 550 per Mason J at 585. The Guardianship Division's jurisdiction is a protective one. One of its primary aims is to protect vulnerable people from neglect, abuse and exploitation: Guardianship Act 1987 (NSW), s 4(g). But that is not its only obligation. The Guardianship Division of the Tribunal is also obliged to ensure that people who are parties to applications receive a fair hearing from an impartial decision-maker. The Tribunal is obliged to disclose to parties who have an interest in the proceedings, the substance of any adverse or prejudicial information and give them a reasonable opportunity to respond: KV v Protective & Ors; KW & Ors v KV & Ors (No.2) [2004] NSWADTAP 48. 2. The Tribunal decided that BTD could apply for a review of the enduring power of attorney because she was an "interested person" as defined in s 35(1) of the Powers of Attorney Act. While most "standing" requirements in legislation prevent a person from litigating about the violation of another person's rights or interests, applicants for a review of an enduring power of attorney made by someone else, are doing just that. If, for example, the power of attorney is not serving the best interests of the subject person, a person who has "a proper interest in the proceedings" or "a genuine concern for the welfare of the principal' may apply for a review. 3. In many cases, the applicant will have no separate interest from the interests of the subject person. In this case BTD does have a separate interest because she maintained that some of the proceeds of sale from the property in Estonia should have been paid to her. 4. We understand the practice in the Guardianship Division to be that parties are not sworn or affirmed and evidence is given in response to questions from the Tribunal, rather than in a formal uninterrupted fashion. Formal cross-examination by other parties is rare. Evidence from the person who is the subject of the application is sometimes given in the absence of the other parties and witnesses. Denying a party the opportunity to hear a witnesses' evidence and to cross examine, may or may not constitute a denial of procedural fairness, depending on the circumstances. 5. BTD was not able to tell the Appeal Panel what information she first read in the Tribunal's decision which was not relayed to her by the Tribunal after it heard her grandmother's evidence. She told the Appeal Panel that she had a copy of the tape recording of the proceedings, but she did not provide that recording or a transcript of the proceedings to the Appeal Panel. Without any evidence other than what BTD says happened, we are not satisfied that the Tribunal failed to report back to the parties the substance of BTF's evidence as it said it did, or otherwise breached its obligation to provide procedural fairness. As this was the only ground of appeal on a question of law, we will now consider the other grounds of appeal. Other grounds of appeal 1. BTD is entitled to appeal on grounds other than a question of law but must first obtain the Tribunal's permission or leave: NCAT Act, s 80(2)(b). We have divided BTD's other grounds into three categories: 1. that the Tribunal's finding that BTF had capacity to enter into the EPOA was against the weight of evidence; 2. evidence given in the hearing was false or misleading; and 3. there was new evidence which the Tribunal should take into account. 1. The general principles applicable to the granting of leave were summarised by the Appeal Panel in Collins v Urban [2014] NSWCATAP 17 at [84] as follows: (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: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [19] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; (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, BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [20] and the authorities cited there, SAB v SEM [2013] NSWSC 253 at [8] and [9] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; (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: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [21] and the authorities cited there. Was the Tribunal's finding that BTF had capacity against the weight of evidence? 1. The Tribunal found that BTF had capacity to sign the EPOA. The relevant passage is set out at p 4 of the reasons for decision: [BTD] indicated that, whilst she had some concerns that her grandmother did not have capacity to enter into an EPOA in May 2013, she had no medical or other evidence to submit to the Tribunal to counter the medical evidence before the Tribunal. The Tribunal had been provided with a report from Dr Navenka Stancevic, [BTF's] treating GP, who had treated [BTF] since October 2012. In Dr Stancevic's view [BTF] did not have any signs of memory loss and was in reasonably good mental status for her age and she was able to make decisions regarding her financial issues. [BTD] pointed to a comment in the health assessment report from Dr Stancevic which noted under 'Activities of daily living – Manages finances: Sl. impaired shopping." [BTD] considered that Dr Stancevic's note implied her grandmother lacked capacity to manage her finances. 1. BTD made the same point on appeal about Dr Stancevic's comment in the health assessment report. 2. After giving an account of BTF's evidence, the Tribunal noted that there was no evidence that BTF lacked capacity and "was satisfied that BTF had the capacity to enter into the EPOA and understood the effect of the document." 3. The health assessment to which BTD refers is a one page document provided to the Tribunal. There is no indication in the decision as to when it was prepared. Under the heading "Activities of Daily Living" the document records, adjacent to the entry "Managing Finances" "Sl Impaired." We understand "Sl" to be an abbreviation for "slightly". In its reasons for decision, the Tribunal has also included the word "shopping" which is adjacent to "Managing Affairs" in the list of daily activities and which is also recorded as being "Sl impaired." 4. BTD submitted both to the Tribunal and the Appeal Panel, that this notation means that BTF does not have capacity to manage her affairs. 5. In our view, it was open on the evidence for the Guardianship Division to find that BTF had capacity to sign the EPOA. The report from Dr Stancevic was evidence which supported that finding. The reference to "Sl impairment" in relation to managing finances is intended as a short-hand summary of BTF's overall ability to manage her finances. It is not evidence about her capacity to enter into an EPOA. The Tribunal has not made a factual error or gone about its fact finding process in a way that is likely to produce an unfair result. 6. We refuse leave for the appeal to be brought on the ground that the Tribunal's finding about capacity was against the weight of evidence. Was information given in the hearing misleading and false? 1. According to BTD, the following evidence or findings of the Tribunal were incorrect because they were based on false evidence: 1. "[BTF] had paid for her granddaughter's airfares to Estonia" 2. "[BTD] was not entitled to a share in the proceeds at this point of time as it was effectively money from [BTF's] deceased husband's estate." 3. ". . . [BTD] had received monies from BTE to reimburse her for her expenses in travelling to Estonia and arranging the sale of the property and also some funds directly from her mother and from [BTF] herself." 4. "[BTF's] decision to divide the proceeds from Estonia occurred at a later point of time." (ie after she had signed the EPOA). 1. In relation to points 1 to 3 above, BTD said that BTF did not pay her airfares to Estonia or the cost of renovations to the property in Estonia from 2009. She says she did not receive any money from BTE to reimburse her for arranging the sale of the property. According to BTD she should have been reimbursed $127,506 from the proceeds of the sale of the house because of all the work she did on the house. 2. BTD did not submit that the Tribunal had recorded any parties' evidence incorrectly or that the findings it made were against the weight of evidence. BTD was given the opportunity to provide her version of events. The fact that the Tribunal accepted the evidence that BTF and BTE, rather than that given by BTD, does not justify leave being given for the appeal to proceed. 3. In relation to point 4 above, BTD says that the $150,000 from the sale of the property was divided between BTF, BTE and BTG before the EPOA was executed, not after. 4. Even if the Tribunal is mistaken as to the order of events, that mistake was not material nor did it produce an unfair result. 5. We refuse leave for the appeal to proceed on the ground that the Tribunal accepted evidence which was false or misleading. Should BTD be given leave to produce further evidence? 1. On appeal BTD filed a document headed "Agreement" which is set out below with the words in brackets added. AGREEMENT 1. Between [BTF] and [BTD] over the sale and future managing of funds of (address deleted) Estonia dated 20 May 2009. 2. [BTF] (address and phone number deleted) 3. and 4. [BTD] (address and phone number deleted) 5. with AT Kinnisvara Investeeringute OU 6. Registrikood 10064343 7. (Address and email deleted) 1. I [BTF] authorise that [BTD] is given the entire proceeds of (address deleted) in the event it is sold. 2. When the property is sold [BTD] can use the entire proceeds from the sale of property and land to buy her own property. 3. I am giving [BTD] the property and suggest that she sell this block of flats and buy a newer apartment in the city. 4. When [BTD] travels to (city deleted) in Estonia to sell the property she can put all the money from the sale into her bank account over there. This will be used as a deposit to buy her own property. 5. I am in agreement that [BTD] have the money from the sale of (address deleted). Signed and dated 20 May 2009 (handwritten date) (handwritten signature) [BTF] 1. The document BTD provided was a copy. She said she has the original but it was not with her when she was speaking on the phone at the Appeal Panel hearing. BTD told the Appeal Panel that she had not given the Agreement to the Guardianship Division because her solicitor at the time had told her it was not relevant. 2. In relation to the admission of further evidence, the Appeal Panel of the Administrative Decisions Tribunal summarised the relevant principles in Building Professionals Board v Hans (GD) [2008] NSWADTAP 13 (12 March 2008) at [52] to [57]. The second of those principles is the most relevant to this case: 54 Secondly, if the Appeal Panel is to exercise its discretion in favour of the party applying for leave, 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'. This criterion appears in the paragraph just quoted from CDJ v VAJ. The applicant for leave does not have to show that if the evidence had been put before the Tribunal, an 'opposite result would have been produced' or it would have been 'unreasonable to suppose the contrary' (see the passage from Council of the City of Greater Wollongong v Cowan that the Appeal Panel in Young quoted at [21]). But it is not enough merely to show that the further evidence is 'useful', or that its admission would have given rise to a 'real chance' that the Tribunal would have reached a different decision (see CDJ v VAJ at [151]; Young at [31]). 1. The Agreement was available at the time of the hearing before Guardianship Division but it was not provided. It was signed in 2009. 2. One issue for the Tribunal was whether it would be in the best interests of BTF to make an order relating to the operation and effect of the power of attorney and whether it would better reflect her wishes to make such an order; Powers of Attorney Act, s 36(4). 3. The existence of a copy of the agreement would have been insufficient for the Tribunal to conclude that a review of the EPOA was necessary. BTD did not provide evidence that she had made a demand on the attorneys to pay her the full amount of the proceeds of sale of the property in Estonia in accordance with the agreement. Nor was there any evidence that BTD had commenced, or intended to commence, proceedings to enforce the agreement. In the absence of evidence that any steps had been taken to enforce the agreement, a review of the conduct of the attorneys in purportedly failing to honour the agreement is premature. 4. For those reasons we refuse to grant leave for BTD to adduce further evidence. Orders 1. The appeal on a question of law is dismissed. 2. Leave is refused for the appellant to appeal on any other ground 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: 08 May 2015