Civil and Administrative Tribunal New South Wales Medium Neutral Citation: ZAA v NSW Trustee and Guardian [2015] NSWCATAP 234 Hearing dates: 23 October 2015 Date of orders: 23 October 2015 Decision date: 02 November 2015 Jurisdiction: Appeal Panel Before: Wright J, President Hennessy LCM, Deputy President Dr M Wroth, Senior Member (Professional) Decision: (1) The appeal is allowed. (2) The orders made on 25 May 2015 by the Guardianship Division in matter 2015/1725 are set aside. (3) Having determined under s 80(3) of the Civil and Administrative Tribunal Act 2013 (NSW) to deal with the matter by way of a rehearing, the appointment of ZAA as the financial manager of the estate of Mr ZAB made by order of the Guardianship Tribunal in matter 2008/6384 on 6 October 2009 is confirmed. The Appeal Panel notes that subject to the provisions of s 25M of the Guardianship Act 1987 (NSW) the private manager is not authorised to deal with the estate under management (other than to protect the assets) unless all necessary directions have been issued by the NSW Trustee and Guardian. Catchwords: PRIVATE FINANCIAL MANAGEMENT – appeal from decision to revoke appointment of private financial manager – procedural fairness – private financial manager did not receive notice of hearing until he returned from an overseas holiday – no opportunity to be heard before a decision adverse to his interests is made – application to revoke appointment of financial manager dealt with by way of new hearing – appointment confirmed Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), ss 29, 32 and 80. Civil and Administrative Tribunal Rules 2014 (NSW), cl 29 Guardianship Act 1987 (NSW), s 4(b), ss 25M and 25U Interpretation Act 1987 (NSW), s 76(1)(b) Cases Cited: Kioa v West [1985] HCA 81; (1985) 159 CLR 550 KV v Protective & Ors; KW & Ors v KV & Ors (No.2) [2004] NSWADTAP 48 Re Refugee Tribunal; ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 Texts Cited: Aronson, Dyer and Groves, Judicial Review of Administrative Action, (5th ed 2013 LawBook Co) Category: Principal judgment Parties: ZAA (Appellant) NSW Trustee and Guardian (First Respondent) ZAB (Second Respondent) Representation: Appellant (self-represented) Ms C Phang, a solicitor and delegate (First Respondent) Second Respondent did not appear File Number(s): AP 15/45298 Publication restriction: Internal review decisions from Guardianship Division proceedings are anonymised to remove any information that may identify any person involved in the Tribunal's proceedings: s 65 of the Civil and Administrative Tribunal Act 2013 (NSW). Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Guardianship Division Date of Decision: 25 May 2015 Before: A Beckett, Senior Member (Legal) File Number(s): 2015/1725 REASONS FOR DECISION Introduction 1. ZAA has appealed from a decision of the Guardianship Division of the Tribunal made on 25 May 2015 revoking his appointment as financial manager of the estate of his father, ZAB, and appointing the NSW Trustee as his father's financial manager. ZAA had originally been appointed financial manager by orders made by the Guardianship Tribunal on 6 October 2009. Those orders were as follows: Pursuant to section 25P of the Guardianship Act, the Tribunal varies the financial management order made on 01 October 2008 in relation to the estate of ZAB so that that order now reads as follows: The Tribunal orders that: 1. the estate of ZAB continue to be subject to management under the provisions of the NSW Trustee and Guardian Act 2009; and 2. the manager of ZAB's estate to be ZAA of [address], subject to such conditions, including the giving of security, as the NSW Trustee considers appropriate. NOTE: Subject to the provisions of s.25M the private manager is not authorised to deal with the estate under management (other than to protect the assets) unless all necessary directions have been issued by the NSW Trustee. 1. The Appeal Panel has jurisdiction to hear this appeal as it is an internally appealable decision: Civil and Administrative Tribunal Act 2013 (NSW), (NCAT Act) ss s 29, 32 and 80. 2. The parties to these proceedings are the appellant (ZAA) and "any person or body who was a party to the proceedings before the Tribunal at first instance": Civil and Administrative Tribunal Rules 2014 (NSW) (NCAT Rules), cl 29. Apart from ZAA, the parties to the proceedings at first instance were ZAB (the protected person) and the NSW Trustee and Guardian. ZAA represented himself at the hearing and Ms Phang represented the NSW Trustee and Guardian. ZAB did not appear. Appeal filed in time 1. Under r 25 of the NCAT Rules, unless an extension of time is granted, an internal appeal must be lodged "within 28 days from the day on which the appellant was notified of the decision . . . or given reasons for the decision (whichever is the later)." The Tribunal made its decision on 25 May 2015 and written reasons were completed on 15 June 2015. ZAA states in the notice of appeal that he received those reasons on 26 June 2015. However, in his submissions filed on 21 September 2015, he says that he received the reasons for decision under cover of a letter dated 26 June 2015, in the post on 1 July 2015. If the letter was posted on 26 June 2015, ZAA is taken to have been given reasons for the decision on 2 July, the fourth working day after the letter was posted, "unless evidence sufficient to raise doubt is adduced to the contrary": Interpretation Act 1987 (NSW), s 76(1)(b). In those circumstances we accept his evidence that he received the decision on 1 July 2015. The notice of appeal was filed on 28 July 2015 and is therefore within time. Application for review of financial management order 1. On 24 February 2015, the NSW Trustee and Guardian applied to the Tribunal for a review of the appointment of a financial manager: Guardianship Act 1987 (NSW), ss 25R and 25U. The basis for that application was that the private manager, ZAA, had not submitted the annual accounting for ZAB's estate for the period 6 October 2012 to 5 October 2013 and 6 October 2013 to 5 October 2014 despite four reminder letters and two attempts to contact him by telephone. The NSW Trustee and Guardian submitted that as a result it is unable to perform its statutory role and has identified that the estate may be at risk. In order for the NSW Trustee and Guardian to undertake its oversight role it must require a private manager to submit information on the management of the client's estate in a timely and suitable format. At the hearing Ms Donna Smith for the NSW Trustee and Guardian confirmed that all attempts to contact ZAA had been unsuccessful and he had not responded to correspondence, email contact or messages left on his mobile phone. 2. Neither ZAB, the subject of the application, nor ZAA, was present at the hearing in the Guardianship Division on 25 May 2015. After Ms Smith gave evidence the Tribunal ordered that: 1. The appointment of ZAA [address deleted] as the financial manager for the estate of ZAB is revoked. 2. The management of the estate of ZAB is committed to the NSW Trustee and Guardian. 3. ZAA is to pay over or hand over the estate to the NSW Trustee and Guardian. 1. The reasons the Tribunal gave for that decision were as follows: The law in this state requires the involvement of the NSW Trustee, either as the appointed financial manager or by directing the appointed financial manager in a supervisory/auditing role. If the appointed financial manager refused to comply with the directions of the NSW Trustee, the financial management order cannot operate as envisaged by the legislation. In particular the checks and balances, expertise and transparency afforded by the involvement of the NSW Trustee cannot be applied to the operation of the order. The Tribunal has previously decided that it is in ZAB's best interests to be placed under a financial management order. The Tribunal was satisfied that it is in ZAB's best interests for ZAA to be removed as financial manager because the financial management order has not been able to have full effect while ZAA has been appointed as the financial manager for the reasons noted in the previous paragraph. No other person was proposed to the Tribunal as substitute financial manager. The Tribunal therefore appointed the NSW Trustee to replace ZAA as the financial manager of ZAB. Grounds of appeal 1. The first ground of appeal was that ZAA was given insufficient notice of the hearing and was unable to attend. We have characterised that ground as an alleged breach of procedural fairness. That is a question of law on which ZAA has a right to appeal: NCAT Act, s 80(2)(b). 2. We accept ZAA's evidence, which was supported by documentation, that he left Sydney on an overseas holiday on 1 May 2015 and returned on 26 May 2015. The notice of hearing was posted on 4 May 2015. ZAA did not receive it until after 25 May 2015, the date of the Guardianship Division hearing. 3. The Tribunal 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) and (5)(c). 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) 204 CLR 82 at [101]: 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 have full capacity receive a fair hearing from an impartial decision-maker. In particular, 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. While the Tribunal did send to ZAA a notice of the hearing a reasonable time before the hearing, he did not receive that notice through no fault of his own. As a consequence he was not able to respond to adverse information about his conduct as a financial manager. While neither ZAA nor the Tribunal is at fault, in the circumstances of this case justice requires that ZAA be given an opportunity to be heard before a decision adverse to his interests is made. Ms Phang, representing NSW Trustee and Guardian, did not oppose that course. In those circumstances, it is appropriate to allow the appeal on this ground and set aside the orders of the Guardianship Division in matter 2015/1725 made on 25 May 2015. Consequently, there is no need to consider any of the other grounds of appeal. Disposition 1. Having set aside the Tribunal's orders, we have decided to deal with the appeal by way of a new hearing: NCAT Act, s 80 (3). Ms Phang proposed that course of action as it would be in the interests of the protected person not to have the matter remitted to the Guardianship Division for another hearing since there was information in her possession which she believed was capable of satisfying the Appeal Panel that ZAA was a suitable person to be ZAB's private financial manager: Guardianship Act, s 25M. ZAA did not object to that course. We allowed Ms Phang to adduce fresh evidence on the issue of ZAA's suitability by way of oral evidence. 2. Section 25U sets out the actions the Tribunal may take on reviewing its appointment of the manager of a protected person's estate: 25U Action on review (1) On reviewing its appointment of the manager of a protected person's estate, the Tribunal may: (a) revoke the appointment, or (b) confirm the appointment. (2) The Tribunal may also review the financial management order under which the manager was appointed, and may take any action in respect of that order that it may take on a review of such an order under Division 2. (3) If the relevant financial management order is not revoked under subsection (2), the Tribunal is to appoint another person as manager of the estate subject to the order in substitution for a person whose appointment as manager has been revoked under this section. (4) The Tribunal may revoke the appointment under review only if: (a) the person appointed seeks the revocation, or (b) the Tribunal is satisfied that it is in the best interests of the protected person that the appointment be revoked, or (c) the financial management order in respect of the estate concerned is revoked. 1. On the basis of all the evidence and submissions, we are not satisfied that it is in the best interests of ZAB for the appointment to be revoked. Consequently the appointment of ZAA as the financial manager of the estate of ZAB made by order of the Guardianship Tribunal in matter 2008/6384 on 6 October 2009 is confirmed. Orders 1. For these reasons, at the hearing on 23 October 2015 the Appeal Panel made the following orders: 1. The appeal is allowed. 2. The orders made on 25 May 2015 by the Guardianship Division in matter 2015/1725 are set aside. 3. Having determined under s 80(3) of the Civil and Administrative Tribunal Act 2013 (NSW) to deal with the matter by way of a rehearing, the appointment of ZAA as the financial manager of the estate of Mr ZAB made by order of the Guardianship Tribunal in matter 2008/6384 on 6 October 2009 is confirmed. The Appeal Panel noted that subject to the provisions of s 25M of the Guardianship Act 1987 (NSW) the private manager is not authorised to deal with the estate under management (other than to protect the assets) unless all necessary directions have been issued by the NSW Trustee and Guardian. ********** 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 Amendments 02 November 2015 - Minor amendments to legislation cited on coversheet 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: 02 November 2015