Civil and Administrative Tribunal New South Wales Medium Neutral Citation: ZCV v ZCW [2017] NSWCATAP 34 Hearing dates: 27 January 2017 Date of orders: 17 February 2017 Decision date: 17 February 2017 Jurisdiction: Appeal Panel Before: Hennessy LCM, Deputy President R Titterton, Senior Member B Field, General Member Decision: 1. The appeal is allowed. 2. A differently constituted Tribunal is to reconsider the Tribunal's decision to appoint ZCW as the financial manager of the estate of ZCX. Catchwords: PROTECTIVE JURISDICTION – financial management order – suitability of person to be appointed as financial manager – findings of fact with no evidence Legislation Cited: Civil and Administrative Tribunal Act 2013, s 32 , s 80, s 81 Civil and Administrative Tribunal Rules 2014 (NSW) Guardianship Act 1987 (NSW), s 25 Powers of Attorney Act 2003 (NSW), s 36 Cases Cited: Absolon v NSW TAFE [1999] NSWCA 331 Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 Minister for Immigration and Ethnic Affairs v Wu Shan Lian [1996] HCA 6; (1996) 185 CLR 259 Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Category: Principal judgment Parties: ZCV – Appellant ZCW – First Respondent ZCX – Second Respondent The NSW Trustee and Guardian – Third Respondent Representation: ZCV (self-represented) ZCW (self-represented) ZCX (H Seers, separate legal representative) The NSW Trustee and Guardian (No appearance) File Number(s): AP 16/28891 Publication restriction: It is an offence under s 65(2) of the Civil and Administrative Tribunal Act 2013 to publish or broadcast the name of any person who is mentioned or otherwise involved in these proceedings. Note: 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. Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Guardianship Division Date of Decision: 08 April 2016 Before: R Bailey, Senior Member (Legal)K Martin, Senior Member (Professional)S Rylands, General Member (Community) File Number(s): C/61003 REASONS FOR DECISION Overview 1. ZCV has appealed from a decision of the Civil and Administrative Tribunal sitting in the Guardianship Division (the Tribunal) of 8 April 2016. In its decision, the Tribunal appointed ZCW, ZCV's sister, as the financial manager of the estate of their mother, ZCX. For clarity, and with no disrespect intended, we refer to the ZCV as 'the son', ZCW as 'the daughter' and ZCX 'the mother'. 2. For the following reasons, the Appeal Panel has decided to allow the appeal, and order that the matter be remitted to the Tribunal for reconsideration. Out of time? 1. There appeared to be an issue that the appeal had not been filed within 28 days of the decision of the Tribunal, as is required by the Civil and Administrative Tribunal Rules 2014 (NSW). However, the son told the Appeal Panel that he did not receive the Tribunal's decision until 26 May 2016, and that therefore the appeal, having been filed on 7 June 2016, had been filed within the 28 day time period required. The daughter did not challenge this evidence and agreed that the appeal could proceed. We find that the appeal was lodged within time. Background to the Appeal 1. The mother is a 94 year old woman, living by herself on the family farm in regional New South Wales. Neither the son nor the daughter live near their mother. Another son, who was not a party to the proceedings, lives in a separate residence on the farm. 2. On 7 July 2011, the mother executed an Enduring Power of Attorney (the First EPOA) appointing the daughter as her attorney. On the same day, she appointed her late husband and the daughter to be her enduring guardians. 3. On 18 March 2014, the mother revoked the First EPOA and enduring guardianship appointments. On the same day she executed an Enduring Power of Attorney (the Second EPOA) appointing her son and her daughter as her joint attorneys. 4. Clause 4 of the Second EPOA stated that "This power of attorney operates – once the attorney/s have accepted his/her appointment by signing this document". 5. The Tribunal noted that the son submitted that the daughter had not accepted her appointment as attorney pursuant to the Second EPOA, but did not make a formal finding to that effect. However, at the appeal hearing, the son repeated the allegation, suggesting that she had failed to do so intentionally, so that the Second EPOA would never commence operation. The daughter confirmed to the Appeal Panel that she had not signed the Second EPOA. 6. The Tribunal found at [55] that neither the son nor the daughter had accepted their appointment as attorneys pursuant to the Second EPOA by signing the document. At the appeal hearing, the son told the Appeal Panel that he had accepted his appointment by signing the relevant section of the Second EPOA, but that he did not have a copy. The Appeal Panel, which had the Tribunal file before it, noted that the son's solicitor had provided a copy of the Second EPOA to the Tribunal where neither attorney had signed the section indicating acceptance of their individual appointments. The Appeal Panel suggested to the son that it appeared on the evidence before the Tribunal that the Tribunal was correct in making that finding. As will be seen in the reasons that follow, it was not necessary for the Appeal Panel to resolve this factual matter. 7. On 28 October 2015, the Tribunal received applications from the son to: 8. (1) review the Second EPOA made on 18 March 2014; 1. (2) review the enduring guardianship appointment made on 18 March 2014; 2. (3) appoint a financial manager for the mother; and 3. (4) appoint a guardian for the mother. 1. On 12 January 2016, the Tribunal received an application from the daughter to review the revocation made on 18 March 2014 of the First EPOA. 2. All applications came before a differently constituted Tribunal on 15 January 2016. That Tribunal decided to dismiss the application to review the enduring guardianship appointment, and to dismiss the application for a guardian. The other applications were adjourned. 3. After a hearing on 8 April 2016 to determine the outstanding applications, the Tribunal decided: 1. (1) pursuant to s 36(1) of the Powers of Attorney Act 2003 (NSW) (the POA Act), to carry out a review of the Second EPOA made on 18 March 2014; 2. (2) as a consequence of that review, to revoke the Second EPOA in its entirety; 3. (3) pursuant to s 36(1) of the POA Act, not to carry out a review of the revocation on 18 March 2014 of the First EPOA made on 7 July 2011; and 4. (4) pursuant to s 25E of the Guardianship Act 1987 (NSW), to appoint the daughter as the mother's financial manager, subject to the authorities and directions ordered by the NSW Trustee and Guardian. 1. The order the subject of this appeal is the order of the Tribunal to appoint the daughter as her mother's financial manager. 2. In making that order, the Tribunal relevantly found that: 1. (1) when the son was appointed as an attorney for his mother, notwithstanding the fact that he felt the Second EPOA "could not be operated", he was bound by a fiduciary duty not to obtain a benefit, and was under a duty to avoid any conflict of interest (see [101] of the Tribunal's Reasons); 2. (2) the son accepted a gift from his mother of $9,300.00 in circumstances where he asserted that there were insufficient funds available for the maintenance of the farm (see [102] of the Tribunal's Reasons); 3. (3) while it was the mother's absolute right to confer gifts on whoever she wished, the son's decision to accept the gift was inconsistent with his expressed concern about the lack of available funds for the maintenance of the farm and his mother's home (see [103] of the Tribunal's Reasons); and 4. (4) the son conceded that he did not obtain invoices for some of the purchases he had made for the farm, although he did have other invoices available. The Tribunal noted that the daughter submitted that those invoices had not been provided to her and that she required them for completion of taxation returns (see [104] of the Tribunal's Reasons). 1. In those circumstances, the Tribunal found that the son's acceptance of the gift represented a conflict of interest (see [105] of the Tribunal's Reasons) and that he was not a suitable person to be appointed as financial manager for his mother (see [106] of the Tribunal's Reasons). 2. The Tribunal further found that, for the following reasons, the daughter was a suitable person to be appointed as her mother's financial manager: 1. (1) there was no evidence that the daughter had mismanaged her mother's affairs, "merely that there had been a difference of opinion about how to prioritise the release of funds" ([110] of the Tribunal's Reasons); 2. (2) it was consistent with the mother's wishes ([113] of the Tribunal's Reasons); and 3. (3) the daughter was experienced in managing her mother's affairs ([113] of the Tribunal's Reasons). Notice of Appeal 1. The son filed a Notice of Appeal on 7 June 2016. Attached to the Notice were over 100 pages of documents. These documents included the evidence before the Tribunal, together with submissions and a response to the daughter's Reply. 2. The Appeal Panel also had before it a bundle of documents titled "Reply to [the daughter's] Response which the son filed on 16 December 2016. This bundle consists of 28 pages, including a transcript of various telephone conversations between the son and the mother which took place both before and after the Tribunal hearing. 3. We have divided the son's grounds of appeal into the following categories: 1. (1) errors of fact made by the Tribunal in accepting his sister's evidence in preference to his own evidence (for instance, his sister's evidence in relation to the heating of their mother's home); 2. (2) inconsistencies in the Tribunal's reasoning (for instance, by finding that although he had not signed his acceptance of the Second EPOA, he was bound by a fiduciary duty not to obtain a benefit); 3. (3) the Tribunal decision was not fair and equitable (for instance, by the Tribunal failing to consider the issues surrounding the purchase of a headstone for his father); 4. (4) the Tribunal's decision was against the weight of the evidence (in particular, the Tribunal's findings at [102] and [103] of its Reasons that the son claimed that there were insufficient funds for the maintenance of the farm and the mother's home); and 5. (5) significant new evidence being available that was not reasonably available at the time of the hearing. Reply to appeal 1. The daughter filed her Reply to Appeal on 5 July 2016. The Reply addresses factual matters before the Tribunal including: (1) the issue of heating in her mother's home, and the fact that she purchased a heater for her mother on 25 May 2015; (2) whether or not the son acted as an attorney for his mother. The daughter claims that the son did act as an attorney by redirecting their mother's mail, undertaking ATM transactions on their mother's account, depositing a cheque of $18,590.00 into his own account and transferring only $9,300.00 to their mother; taking their mother to the bank on 24 November 2014 and causing her to draw a bank cheque for $6,150.00 and ordering a headstone for their late father. 1. The daughter also submitted that the son had failed to provide her with financial information such as invoices and bank statements which she needs to complete her mother's tax return and the farm tax return, despite repeated requests to do so. The son's response to the Reply 1. In summary, the son denies each of the allegations made by his sister, and says that she was lying when she gave her evidence to the Tribunal. Nature of the Appeal 1. This appeal, being an appeal from a decision of the Guardianship Division of the Tribunal to the Appeal Panel, is an "internal appeal" for the purposes of the Civil and Administrative Tribunal Act 2013 (the NCAT Act), s 32. Internal appeals can be made as of right on any question of law, or with leave of the Appeal Panel on any other grounds: NCAT Act, s 80(2)(b). 2. Section 81 of the NCAT Act sets out the orders that may be made on appeal: 81 Determination of internal appeals (1) In determining an internal appeal, the Appeal Panel may make such orders as it considers appropriate in light of its decision on the appeal, including (but not limited to) orders that provide for any one or more of the following: (a) the appeal to be allowed or dismissed, (b) the decision under appeal to be confirmed, affirmed or varied, (c) the decision under appeal to be quashed or set aside, (d) the decision under appeal to be quashed or set aside and for another decision to be substituted for it, (e) the whole or any part of the case to be reconsidered by the Tribunal, either with or without further evidence, in accordance with the directions of the Appeal Panel. (2) The Appeal Panel may exercise all the functions that are conferred or imposed by this Act or other legislation on the Tribunal at first instance when varying, or making a decision in substitution for, the decision under appeal. 1. We note that a court or tribunal "ought not be astute to find fault with the reasoning process of Tribunals whose decisions are the subject of an appeal or are being reviewed": Absolon v NSW TAFE [1999] NSWCA 331; Minister for Immigration and Ethnic Affairs v Wu Shan Lian [1996] HCA 6; (1996) 185 CLR 259. A question of law? 1. The Appeal Panel in Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 considered the requirements for establishing an "error of law" giving rise to an appeal as of right and noted at [11] that, in circumstances where appellants are not legally represented, a decision maker may look at the grounds of appeal generally. Without expressing exhaustively every possible question of law, the Appeal Panel in Prendergast referred at [13] to the following as raising questions of law: (1) whether there has been a failure to provide proper reasons; (2) whether the Tribunal identified the wrong issue or asked the wrong question; (3) whether a wrong principle of law has been applied; (4) whether there was a failure to afford procedural fairness; (5) whether the Tribunal failed to take into account a relevant (mandatory) consideration; (6) whether the Tribunal took into account an irrelevant consideration; (7) whether there was no evidence to support a finding of fact; (8) whether the decision was so unreasonable that no reasonable decision-maker would have made it. 1. For the reasons that follow, we consider that the Tribunal, in reaching its decision to appoint the daughter as the financial manager for the mother: (1) applied a wrong principle of law; and (2) made a finding without evidence or reasoned illogically. 1. These are errors of law. We consider that a differently constituted Tribunal should reconsider the whole case in accordance with these reasons. 2. Having reached this conclusion, there is no need for us to deal with the son's other grounds of appeal on questions of law; decide whether to give leave for the son to appeal on grounds other than questions of law; or consider whether we should admit fresh evidence sought to be relied on. Tribunal's decision 1. As the Tribunal noted in its reasons, before it could make a financial management order, it had to be satisfied that: 1. (1) the mother was not capable of managing her affairs; 2. (2) there was a need for another person to manage the mother's affairs on her behalf; and 3. (3) it is in the best interests of the mother that a financial management order be made: Guardianship Act 1987 (NSW), s 25G. 1. The Tribunal was satisfied as to each of these matters and no ground of appeal relates to these findings. 2. The Tribunal then had to decide who should be appointed as the mother's financial manager. The Tribunal may "appoint a suitable person as manager of that estate, or commit the management of that estate to the NSW Trustee": Guardianship Act, s 25M. 3. The son suggested himself, and submitted that the daughter was not suitable. The daughter suggested herself, and submitted that the son was not suitable. The Tribunal noted that the mother said that she would like either her son or her daughter to be appointed as financial manager, and was strongly opposed to the notion of an independent financial manager such as the NSW Trustee and Guardian being appointed. The Tribunal decided to appoint the daughter. 4. We consider that the Tribunal erred in reaching this decision. Applying a wrong principle of law 1. The decision was based on several findings including the Tribunal's finding that at [101] that When [the son] was appointed as an attorney, notwithstanding the fact that he felt that the [Second EPOA] could not be operated, he was bound by a fiduciary duty not to obtain any person [sic - personal] benefit … and to keep records and accounts. He also had a duty to avoid any conflict of interest. 1. The findings that the son was bound by a fiduciary duty and also had a duty to avoid any conflict of interest are errors of law because, for the reasons we explain below, the son was not legally bound by any such duties. The Tribunal applied an incorrect principle of law or misapplied the law in making these findings. 2. When determining whether the son was a suitable person to be his mother's financial manager, the Tribunal made a finding of fact at [102] that the son had asserted that there were insufficient funds available for the maintenance of the farm. The Tribunal went on to find, at [103] that the son's acceptance of a gift from his mother of $9,300.00 was inconsistent with his concern about lack of available funds. At [105] – [106] the Tribunal concluded that the son's acceptance of the gift from his mother was a conflict of interest and that, on that basis, he was not a suitable person to be appointed as financial manager. 3. The son said that his mother wanted to give him $9,300.00 as a payment for looking after the farm for many years. The son said that his mother noted this on a Christmas card, and that she had wanted to give him money in the past but on this occasion she insisted. The daughter did not give evidence which contradicted the son's assertion, nor did the Tribunal question that evidence. However, the Tribunal found at [105], that "because of the issue with the gift", and the son's conflict of interest, it was not appropriate to appoint him as financial manager. 4. The acceptance of the gift did not give rise to a conflict of interest because, contrary to the Tribunal's finding at [101], the son was not bound by a fiduciary duty not to obtain any personal benefit or to avoid any conflict of interest. What the Tribunal described as a "conflict of interest" arose, the Tribunal found, because of the appointment of the son as his mother's attorney. True it is that the mother appointed the son as one of her two joint attorneys pursuant to the Second EPOA, but the daughter did not accept her appointment as a joint attorney. Even accepting that the son did accept his appointment (as claimed at the appeal hearing, but not accepted by the Tribunal), the Second EPOA never commenced to operate in accordance with cl 4. Therefore, the obligations of an attorney, including the obligations of a fiduciary including the obligation not to hold a conflict of interest, never arose. As the son correctly submitted at p 12 of his submissions: There was NO Power of Attorney appointment validated, because both nominees did not sign the acceptance. I cannot act as a single attorney, so there was NO Power of Attorney in operation, NO fiduciary obligation and NO conflict of interest. 1. A similar submission is repeated at p 15. Given these matters, the Tribunal erred in its findings at [101]. 2. The Tribunal stated at [106] that "[on] that basis" it was not satisfied that the son was a suitable person to be appointed as financial manager for the mother. In doing so, the Tribunal appears to be referring to its findings at [101] (set out above) and at [105] that his acceptance of a gift from his mother represented a conflict of interest. Making a finding without evidence or reasoning illogically 1. The son disputes the following findings of the Tribunal: [102] However, on the basis of his own evidence, [the son] accepted a gift of $,9,300 from his mother, in circumstances where he now asserts that there are insufficient funds available for the maintenance of the farm. [103] Whilst it is [the mother]'s absolute right to confer gifts upon whoever she wishes, [the son]'s decision to accept that gift is inconsistent with his expressed concern about the lack of available funds for the maintenance of the farm and [the mother]'s house. 1. The son submits that the findings are "completely false". He submits that his concern about the funding for maintenance of the farm and his mother's house is "very clearly about access to funds, not [the] amount of funds." 2. His submission is supported by his statement dated 24 October 2015, which was before the Tribunal. There, he relevantly states: [17] The farm is going to ruin and needs urgent maintenance work carried out. There are many things we can do ourselves, but not at my own personal expense. We need to carry out major work for which we need to pay money to do as it requires specialised equipment, such as fencing. The week [sic – weed] control now out of control and we need to pay someone to come in and do it. Road and bridge works are also required on the farm. [18] [My sister] controls my mother's finances. She has taken my mother's Credit Card and Cheque book and is a signatory on some of mother's bank accounts. … [24] I am concerned that my mother is not being looked after properly by my sister and that she does not have access to her own finances. [25] I am concerned that the farm is going to ruin and that major works that need to be carried out are not being done because [my sister] withholds all my mother's funds. [26] I do not have the finances to pay for the work that needs to be carried out myself. 1. The son was clearly saying that there were sufficient funds for the maintenance of the farm, but that the daughter was not making those funds available. 2. His submission also appears to be supported by the observation of the Tribunal at [110] that there had been a difference of opinion about how to prioritise the release of funds. 3. It is arguable that the Tribunal's reference to available funds at [102] and [103] is a reference to an assertion by the son that the mother did not have sufficient funds to maintain the farm. If that is what the Tribunal meant, there was no evidence for that finding. The Appeal Panel has, with the agreement of the parties, listened to the sound recording of the Tribunal hearing and there was no evidence given to that effect. A finding made without evidence is an error of law: Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139. 4. Alternatively the Tribunal's reference to available funds at [102] and [103] is a reference to an assertion by the son that the daughter was not making sufficient funds available to him. If that is what the Tribunal meant, it was not logical for the Tribunal to find that accepting a gift was inconsistent with the fact that the daughter was not making funds available to maintain the farm. 5. Either the Tribunal has made an error of law or has reasoned illogically in the findings it made at [102] and [103]. That is a further reason for upholding the appeal and remitting the matter to be reconsidered with any further evidence that the Tribunal allows. Orders 1. The Appeal Panel orders: 1. The appeal is allowed. 2. A differently constituted Tribunal is to reconsider the Tribunal's decision to appoint ZCW as the financial manager of the estate of ZCX. ********** 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 08 March 2017 - Amendment to Order 2. 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 March 2017