Civil and Administrative Tribunal New South Wales Medium Neutral Citation: ZEO v ZEP [2017] NSWCATAP 166 Hearing dates: 19 July 2017 Date of orders: 03 August 2017 Decision date: 03 August 2017 Jurisdiction: Appeal Panel Before: M Schyvens, Deputy President M Harrowell, Principal Member L Porter, General Member Decision: 1 Leave to appeal is refused and the appeal is dismissed. 2. Order 3 made 10 April 2017 in application 2017/1779 is varied to read as follows: This order be reviewed by the Tribunal within four months. Catchwords: Guardianship Act – Financial management order, appeal, exercise of discretion, leave to appeal on question of fact, absence of evidence from original hearing. Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Guardianship Act 1987 (NSW) Cases Cited: Collins v Urban [2014] NSWCATAP 17 Holt v Protective Commissioner (1993) 31 NSWLR 227 House v The King [1936] HCA 40; (1936) 55 CLR 499 John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 M v M [2013] NSWSC 1495 Re R [2000] NSWSC 886 Re TLH, a protected person [2017] NSWSC 737 Category: Principal judgment Parties: ZEO (Appellant) ZEP (protected person) (First respondent) NSW Trustee and Guardian (Second respondent) ZES (Third respondent) ZEU (Fourth respondent) ZET (Fifth respondent) Representation: ZEO (Appellant in person ) B Weule (Guardian ad Litem) (First respondent) No appearance (Second, Third, Fourth, and Fifth respondent) File Number(s): AP 17/21975 Publication restriction: Under s 64(1)(a) of the Civil and Administrative Tribunal Act 2013, publication of the names of the parties, other than the NSW Trustee and Guardian, is prohibited. A reference to the name of a person includes a reference to any information, picture or any 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 of New South Wales Jurisdiction: Guardianship Division Citation: Not applicable Date of Decision: 10 April 2017 Before: K McMahon, Senior MemberM Staples, Senior MemberK Laurence, General Member File Number(s): 2017/1779 reasons for decision Introduction 1. A financial management application was made on 23 February 2017. The applicant was ZEO, the father of ZEP and the appellant in this appeal. In that application, the appellant said he should be appointed as the manager of his son's financial affairs and that his son "agreed to his best ability that (the appellant has) his consent to proceed with this application". 2. On 10 April 2017, the Tribunal made a Financial Management Order appointing the NSW Trustee and Guardian to manage the estate of ZEP. The Tribunal provided written reasons for its decision. 3. The appellant appeals this decision. Notice of Appeal and submissions 1. The appellant filed a Notice of Appeal dated 21 April 2017. 2. The appellant sought orders in the appeal that he be appointed as the manager of his son's estate rather than the NSW Trustee and Guardian. His grounds of appeal can be summarised as follows: 1. ZEP does not want the financial burden of the NSW Trustee and Guardian Act 2009 (NSW) (NSWTG Act). 2. ZEP was not given an opportunity to speak at the original hearing, he being "terrified of his sister…and won't speak in her presence". The Appeal Panel notes in passing that no evidence of what happened at the hearing was provided to support this submission so it is unnecessary to consider this ground. 3. The appellant's daughters, ZES and ZEU, "ganged up" on the appellant and objected to his appointment. 4. One of his daughters had an "unprofessional relationship" with a social worker who provided evidence in respect of the application. This evidence was in the form of a letter attached to the appellant's Notice of Appeal which provided indirect evidence from ZEP that he wished his sister, ZEU, to be appointed manager and not his father, the appellant. 5. The evidence presented by another party at the hearing wrongly sought to damage the good character of the appellant. 1. At the hearing of the appeal, the appellant provided oral submissions to the following effect: 1. His children, ZES, ZEU, and ZET, now supported his appointment as manager. In this regard, the Appeal Panel has received: 1. the Reply to Appeal filed by the appellant's son, ZET, which opposed the appointment of the NSW Trustee and Guardian; 2. the Reply to Appeal filed by the appellant's daughter, ZES, which said "I support my father to take over my brother's financial affairs"; and 3. letters from the appellant's second daughter, ZEU, and son, ZET, dated 19 July 2017 and 18 July 2017 respectively, which said they also supported their father's appeal. These documents became Exhibits A and B in the appeal, there being no objection by the Guardian ad Litem appointed to represent ZEP. 1. The NSW Trustee and Guardian had failed to take appropriate steps in the management of ZEP's estate, which included: 1. not selling a property part-owned by ZEP at Nimmitabel in southern New South Wales; 2. not taking steps to repair and/or repair a second property owned by ZEP at Belmore; and 3. not taking steps to apply to Centrelink on behalf of ZEP to obtain a disability pension or other Social Security payments. 1. In short, the appellant said that the NSW Trustee and Guardian was not properly performing the role of manager and that ZEP was being adversely affected. 2. The Guardian ad Litem appointed by the Tribunal on behalf of ZEP made submissions on behalf of ZEP. 3. Those submissions were in writing which became Exhibit C in the appeal. The Guardian ad Litem also made oral submissions at the hearing. 4. The Guardian indicated she had not been able to speak to ZEP because advice she had received from his carers indicated that such a conversation would be both confusing and distressful to him. However, she did speak to a representative of the NSW Trustee and Guardian concerning what steps had been undertaken in relation to the financial management order and other issues. In this regard, the Guardian ad Litem said: 1. the financial management system "is still being set up and the (manager) is waiting for funds from ZEP's bank account"; 2. the nursing home at which ZEP is located has not been paid; 3. the property at Nimmitabel "has been sold and the sale must be approved by the Trustee". 4. The purchaser of the Nimmitabel property has been renting it for the past two years, however, it was unknown what was happening with the rental money; 5. The NSW Trustee and Guardian is finding the family difficult, particularly the son, ZET, and that there is in-fighting within the family. 1. The Guardian ad Litem also said that it appeared the differences between the appellant and his daughters have been resolved. However, she had spoken to other healthcare and service providers who pointed to continuing domestic violence issues as well as dysfunctionality of the family. 2. The NSW Trustee and Guardian did not appear at the hearing of the appeal. However, it did provide a document entitled "Report for Appeal Panel Notice of Hearing – AP 17/21975" dated 14 July 2017. That document set out what had been done since the NSW Trustee and Guardian was appointed on 10 April 2017. Otherwise, in a document entitled "Reply" dated 23 May 2017, the NSW Trustee and Guardian said it did not wish to present a case or make submissions in relation to the appeal. Consideration 1. A party in proceedings in the Guardianship Division may appeal a decision of that Division by either an internal appeal under the Civil and Administrative Tribunal Act, 2013 (NSW) (CAT Act) or by way of an appeal to the Supreme Court of New South Wales: see cl 12 of Sch 6. 2. The appellant has exercised a right to challenge the decision by way of an internal appeal. The Notice of Appeal was filed in time. 3. Directions were made by the Appeal Panel on 23 May 2017 which required the appellant to file and serve any evidence and the sound recording (including a typed copy of relevant parts of the sound recording) upon which the appellant wished to rely at the hearing of his appeal. Aside from the letter from the social worker, to which we have referred above and the documents which were tendered at the hearing of the appeal and became exhibits, no evidence from the original hearing was in fact filed nor was the sound recording provided to the Appeal Panel. 4. The appellant has a right of appeal on a question of law. Otherwise, the appellant requires leave to appeal: see s 80(2)(b) of the CAT Act. The principles applicable to the grant of leave were set out by the Appeal Panel in Collins v Urban [2014] NSWCATAP 17. 5. The nature of the appellant's appeal is that the Tribunal erred in exercising its discretion in failing to appoint him as manager. Alternatively, the Tribunal was in error in concluding as a matter of fact he was not suitable. While the appellant did not seek leave to appeal, having regard to the comments of the Appeal Panel in John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [12] and following, to the extent necessary we should treat the submissions as a request for leave. 6. It seems to us that the first matter is a question of law for which there is a right of appeal. This requires the appellant to establish an error of the type identified by the High Court in House v The King [1936] HCA 40; (1936) 55 CLR 499. The second is an issue for which leave to appeal is required. 7. The power to appoint a manager is found in s 25M of the Guardianship Act, 1987 (NSW) (the Act). This section provides: 25M Tribunal may commit estate of protected person to management (1) If the Tribunal makes a financial management order in respect of the estate (or part of the estate) of a person, the Tribunal may, by order: (a) appoint a suitable person as manager of that estate, or (b) commit the management of that estate to the NSW Trustee. 1. The "NSW Trustee" means the NSW Trustee and Guardian constituted under the NSW Trustee and Guardian Act 2009: see s 3(1) of the Act. 2. The principles applicable in determining who is a suitable person to be appointed as a manager were set out in the decisions of the Court of Appeal of the Supreme Court of New South Wales in Holt v Protective Commissioner (1993) 31 NSWLR 227 and more recently by Lindsay J in various decisions including M v M [2013] NSWSC 1495. 3. Relevant to the determination of this appeal are the following principles: 1. The jurisdiction is not a "consent" jurisdiction. That is, the fact that all family members agree what orders should be made is not determinative of who should be appointed to manage the affairs of a protected person. 2. Any decision affecting the welfare or interests of ZEP must be made "in a manner, and for a purpose, calculated to be in the best interests, and for the benefit, of the protected person": see Re TLH, a protected person [2017] NSWSC 737 per Lindsay J at [7(b)]. 3. Decisions must be made in the context of a prudential management regime that can be administered without strife in the simplest and least expensive way. In this regard, the obligations of a manager are that of a fiduciary: Re TLH at [7(d) and 7(e)]. 1. To these considerations should be added the observations of Young J (as he then was) in Re R [2000] NSWSC 886. At [48] his Honour said: There are some real problems in this area that cannot be denied. The authorities show that if one can have members of the family manage an incapable person's estate then that is often the preferred course, see eg Holt v Protective Commissioner… It is also true that there are some cost ramifications if an independent person has to manage the affairs. I evaluated this problem together with the countervailing problem of the expertise of private managers in Re L [2000] NSWSC 721. One does need to evaluate the cost on the one hand and the independence on the other hand of a private manager and come to a decision, but that is a matter of fact and degree. 1. In the present case, the Tribunal determined that the NSW Trustee and Guardian should be appointed. The reasoning for doing so was set out at [44] of the decision: We gave consideration to whether to appoint (the appellant) or the NSW Trustee and Guardian. On balance, we were satisfied that the preferable course was to appoint the NSW Trustee and Guardian. Whilst we accept that (the appellant) has knowledge of (the protected person's) financial affairs and a personal connection with him, we considered that this was outweighed by the benefit of having an independent decision maker, given the degree of involvement of different family members in (the protected person's) affairs and the higher level of conflict between them. We also take into account that (the protected person) has previously formally excluded (the appellant) from being provided with information or consulted about his treatment and an inference can be drawn that his appointment as financial manager may not accord with his wishes. 1. In reaching this conclusion, the Tribunal found at [41] that: It was apparent during the hearing that there is considerable conflict between family members. There was heated disagreement between family members about issues relating to (the protected person's) finances and steps taken by family members to help manage his finances since he has been admitted to hospital. 1. As noted above, the appellant did not provide evidence from the original hearing to contradict the findings of fact to which the Tribunal referred. Indeed, at the hearing of the appeal the appellant agreed that his daughters opposed his appointment as the financial manager, a matter which corroborates the Tribunal's findings. 2. Further, while it is unclear from the decision who is the co-owner of the property at Nimmitabel with the protected person, it seems clear that this house was a holiday house for the family: see decision at [20]. It also seems clear from the decision that the complex living arrangements and history of strife between family members gives rise to various conflicts both in a physical sense (see decision at [40]) and in respect of the management of the protected persons financial affairs as set out in the decision at [41] to which we have referred above. 3. When the decision of the Tribunal is considered in the context of the principles to which we have referred, in our view the appellant has not demonstrated any error by the Tribunal in the exercise of the discretion to appoint the NSW Trustee and Guardian. 4. Further, the appellant has failed to show that the Tribunal was wrong in concluding that the appellant was not in fact a suitable person to be appointed as financial manager. The appellant has not referred to any evidence to prove that he has the capacity to undertake the prudential management of the affairs of ZEP nor has he provided any evidence to demonstrate that any conflicts to which we have referred could be managed "in a manner, and for a purpose, calculated to be in the best interests, and for the benefit, of the protected person". 5. That is not to suggest the Appeal Panel rejects the comments by the appellant and by the Guardian ad Litem at the hearing of the appeal that the appellant "cares deeply for his son and wants to do the best he can for him". However, the person appointed to manage the affairs of the protected person must demonstrate a capacity to be able to perform the financial management role and satisfy the Tribunal that any matters of conflict, financial or otherwise, will not impact upon the best interests of the protected person. 6. It follows that the appellant has failed to establish any relevant error of the Tribunal in making the orders on 10 April 2017 and that leave to appeal should be refused and the appeal should be dismissed. Other matters 1. There is one further matter to which we should refer. 2. As indicated above, the NSW Trustee and Guardian was appointed by order made 10 April 2017. The work it has done since that time in the management of the affairs of ZEP is found in the report which it has filed in this appeal. 3. Having regard to the submissions made by the appellant and having regard to the content of the report, the following appears to be the position concerning management of the affairs of ZEP since 10 April 2017: 1. It would seem that the property at Nimmitabel has not yet been sold. This is despite the fact that the prospective purchaser of the Nimmitabel property is presently renting that property. 2. There is also no reference to any rental income being received from the prospective purchaser. 3. There are unpaid nursing home fees for ZEP. 4. No steps had been taken to apply for a disability pension or other Social Security payments which might benefit ZEP. In this regard, the appellant says that he was told by the NSW Trustee and Guardian it was his responsibility to make such an application. 5. No steps appear to have been taken in connection with the Belmore property, either to utilise funds from the sale of the Nimmitabel property to carry out repairs so that the Belmore property can be rented or, alternatively, to sell that property. 1. Significantly, the NSW Trustee and Guardian says in its report at [8]: There are no recommendations in relation to Financial Management. 1. One of the complaints made to the Appeal Panel by the appellant was that steps have not been taken by the NSW Trustee and Guardian to secure funds from the estate of the protected person so as to enable him to receive required rehabilitation treatment. 2. In the absence of evidence, the Appeal Panel is unable to resolve any issues concerning this matter. Certainly, it is not in a position to embark upon a new hearing to determine whether the financial management order made on 10 April 2017 should be reviewed or an alternative manager appointed. However, the matters raised by the appellant are significant in that more than three months have passed since the Tribunal made the financial management order and it is not clear what has been done and/or whether any priority is being given to managing the affairs of ZEP having regard to the needs identified by his father, the appellant. 3. Section 81(1) of the CAT Act provides to the Appeal Panel a power to make "such orders as it considers appropriate in light of its decision on the appeal". 4. While we are not in a position to conduct a review of the financial management order, we are in a position to vary the terms of the order so as to bring forward the time for review. In this regard, the present financial management order is not due for review until October 2017. 5. The appellant indicated that his son was receiving treatment and that his medical condition was improving. This statement was at odds with the decision of the Tribunal in April 2017. However, having regard to the matters to which we have referred above, in our view the review date should be brought forward. In this way, the Tribunal will be able to bring all parties before it, including the NSW Trustee and Guardian. The Tribunal can then review the order that has been made and decide whether it should be varied and/or what, if any, steps might be taken to ensure that any ongoing financial management is undertaken in a way that properly benefits ZEP. 6. To facilitate this outcome, Order 3 made 10 April 2017 should be varied to provide for a review within four months, namely in August 2017. 7. This will give the appellant a reasonable opportunity to obtain advice in preparing the necessary evidence relevant to such a review. It will also allow the NSW Trustee and Guardian to consider these Reasons for Decision and be in a position to provide a full report to the Tribunal concerning what has occurred to date. Orders 1. The Appeal Panel makes the following orders: 1. Leave to appeal is refused and the appeal is dismissed. 2. Order 3 made 10 April 2017 in application 2017/1779 is varied to read as follows: This order be reviewed by the Tribunal within four months. ******** 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: 03 August 2017