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NSW Crest

Administrative Decisions Tribunal
New South Wales

Medium Neutral Citation:
AAD v NSW Trustee and Guardian [2013] NSWADTAP 40
Hearing dates:
22 July 2013
Decision date:
21 August 2013
Before:
Magistrate N Hennessy, Deputy President
Mr P Molony, Judicial Member
Ms A Wunsch, Non-Judicial Member
Decision:

The appeal is dismissed.

Catchwords:
APPEAL - appeal against decision of Guardianship Tribunal confirming the appointment of the NSW Trustee as AAE's financial manager - whether Guardianship Tribunal should have reviewed financial manager order as well as appointment; whether Guardianship Tribunal breached rules of procedural fairness by not allowing a non-party to speak at the hearing - whether appeal should be extended to grounds other than a question of law
Legislation Cited:
Guardianship Act 1987
Administrative Decisions Tribunal Act 1997
Cases Cited:
Italiano v Carbone v Ors [2005] NSWCA 177
Re Refugee Tribunal; ex parte Aala [2000] HCA 57; (2000) 75 ALJR 52
Kioa v West [1985] HCA 81; (1985) 159 CLR 550
K v K [2000] NSWSC 1052; S v S [2001] NSWSC 146
S v S [2001] NSWSC 146
Re R [2000] NSWSC 886 (17 August 2000)
Holt v Protective Commissioner (1993) 31 NSWLR 227.
Category:
Principal judgment
Parties:
AAD
NSW Trustee and Guardian
AAE
AAF
Guardianship Tribunal
Representation:
APY (agent for AAD)
Ms J McIlwraith (Guardian ad litem for AAE)
AAF (3rd respondent in person)
NSW Trustee and Guardian (no appearance)
Guardianship Tribunal (no appearance)
File Number(s):
138004
Publication restriction:
Section 126 Administrative Decisions Tribunal Act 1997
Decision under appeal
Citation:
2012/1525
2012/3754
File Number(s):
C/45583

reasons for decision

Introduction

1AAE is a 73 year old woman who lives in a nursing home. She has Alzheimer's dementia as well as depression and anxiety. Her daughters, AAD and AAF are estranged. On 13 October 2011, following an application from AAD, the Guardianship Tribunal made a financial management order in relation to AAE and appointed the NSW Trustee as the manager of her estate. In May 2012 AAD applied for a review of the decision to appoint the NSW Trustee as the manager of her mother's estate. AAD wanted the Guardianship Tribunal to appoint her as financial manager. AAE's other daughter, AAF, wanted the NSW Trustee and Guardian to remain as the financial manager. The Guardianship Tribunal confirmed the appointment. AAD has appealed against that decision.

Jurisdiction and parties

2The Administrative Decisions Tribunal has jurisdiction to hear this external appeal: Guardianship Act 1987, s 67A(1)(h), Administrative Decisions Tribunal Act 1997 (ADT Act), s 118A. An appeal may be made as of right on a question of law and, with leave, on any other ground: ADT Act, s 118B(1).

3The appellant, AAD, was represented by her husband APY, as agent: ADT Act, s 71(1)(b1). The subject person, AAE, was represented by Ms McIlwraith, a guardian ad litem appointed by the Tribunal: ADT Act, s 71(4). The subject person's other daughter, AAF, chose to appear by phone. The Guardianship Tribunal elected to be a party: ADT Act, s 67(2B). The Guardianship Tribunal advised that a representative would be available by phone if necessary. We did not need to contact the Guardianship Tribunal's representative.

Guardianship Tribunal's power

4The Guardianship Tribunal was exercising power under s 25U of the Guardianship Act. That provision gives the Tribunal a discretion to revoke or confirm the appointment of a particular financial manager. In this case, the only basis for revocation was if "the Tribunal is satisfied that it is in the best interests of the protected person that the appointment be revoked". Section 25U provides that:

(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.

Guardianship Tribunal's decision

5The Guardianship Tribunal understood AAD's motivation for applying for a review as being because "the current arrangements are expensive and do not provide flexibility for her mother."

6Ms Carter, a representative from the NSW Trustee and Guardian, gave evidence to the Guardianship Tribunal. She outlined the nature and extent of AAE's estate. She said it includes a superannuation fund with assets of $1,900,000 and a family home valued at $1,000,000. There is also cash in bank accounts, a unit trust and two privately owned companies valued at $538,948. Legal proceedings are pending in relation to a private company of which AAE is the sole director. The Tribunal did not provide any further details of those proceedings.

7AAE owes the nursing home a bond of $360,000 but the NSW Trustee has not been able to pay that amount. Ms Carter gave evidence that a decision about the sale of the family home was imminent. The sale was considered necessary because of the difficulty accessing other assets in circumstances where AAE lacks capacity. Apparently there was no provision for the incapacity of a director of the superannuation fund or of the unit trust.

8After reviewing the evidence and the submissions of the parties, the Guardianship Tribunal concluded that:

. . . at this stage of [AAE]'s life, it would not be in her best interests to allow the management of her financial affairs to continue to be such a source of conflict among those who are closest to her. At this stage of her life, it is in [AAE]'s interests to have a united family.

Grounds of Appeal

9On the day of the hearing APY sought to file a "revised" Notice of Appeal. That Notice had not been served but both the other parties, AAF and Ms McIlwraith, agreed that APY could rely on the amended Notice as long as they had the opportunity to provide written submissions in reply. Both provided those submissions by the due date.

10There were fifteen grounds of appeal. Only two identify questions of law. The first is that the Guardianship Tribunal failed to exercise a power it was bound to exercise, that is reviewing the making of the financial management order. The second question of law is that the Guardianship Tribunal breached the rules of procedural fairness by refusing to allow AAD's partner, APY, to give oral evidence or make submissions at the hearing.

11We will address these two grounds of appeal and then go on to consider the grounds of appeal on questions other than questions of law.

Failing to exercise a power

12APY submitted that the Guardianship Tribunal should have exercised its power under s 25U(2) to review the financial management order. Instead, it merely reviewed the appointment of the financial manager.

13Section 25U(2) gives the Tribunal power to review the financial management order when reviewing the appointment of the financial manager. If it reviews the financial management order it may revoke that order. It is apparent from the application form completed by AAD that she did not apply to the Guardianship Tribunal for a review of the financial management order. The application AAD lodged with the Tribunal was entitled "Application to review a Financial Management Order". Under the heading, "Are applying to . . ", AAD ticked the box headed "Review the financial management order so as to replace the current financial manager with a new financial manager". She did not tick any of the other three boxes relating to the review of the financial management order itself.

14APY submitted that the Guardianship Tribunal should have reviewed and revoked the financial management order itself. In legal terms, APY's submission appears to be that the Guardianship Tribunal made an error of law by failing, on its own motion, to exercise a power that was available to it. That submission was made on the basis that the Guardianship Tribunal:

(1)had previously accepted substantial evidence concerning the improper circumstances that surrounded the appointment of an accountant as AAE's enduring power of attorney; and

(2)heard evidence from AAF that she had arranged to become a signatory to her mother's business accounts in 2010 after her mother had been diagnosed with dementia; and

(3)heard contradictory evidence from AAF as to her involvement with her mother's financial affairs.

15There are some circumstances where a decision maker will make an error of law by failing to do something of its own motion. For example, it is a breach of procedural fairness to fail to offer an adjournment to a self-represented party, if that party would otherwise be prevented from having a reasonable opportunity to present his or her case: Italiano v Carbone v Ors [2005] NSWCA 177. But, ordinarily, procedural fairness does not require a decision maker to make an application of its own motion.

16The only two bases on which the Guardianship Tribunal may revoke a financial management order are if the protected person is now capable of managing his or her affairs or if it is in the best interests of the protected person for the order to be revoked: s 25P. The evidence that AYP referred to does not relate to AAE's capacity, nor is it clear how it relates to her best interests. As we understand AYP's reasoning, it was his view that if the financial management order were revoked, his wife (AAD) would act as power of attorney without the need for a financial management order. That is a significant change from the existing arrangement. If that is the outcome AAD was seeking, she should have applied to the Guardianship Tribunal for a revocation of the financial management order. The Guardianship Tribunal did not make an error of law by failing to initiate an own motion review of the making of that order.

Breaching procedural fairness

17APY, who is AAD's husband, submitted that the Guardianship Tribunal breached the rules of procedural fairness by refusing to allow him to give oral evidence or make submissions at the hearing.

18The 'hearing rule' of procedural fairness requires that a decision maker hear a person before making a decision affecting their interests. McHugh J spoke generally of this concept 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.

19APY applied to be a party to the proceedings before the Guardianship Tribunal but that application was refused. In its interlocutory reasons for decision dated 4 August 2012, the Tribunal wrote, "APY did not demonstrate how his own interests might be affected by the proceedings concerning [AAE], nor how joining him as a party might help to promote AAE's best interests." The Tribunal added that, "[APY] does, of course, remain free to attend the substantive hearing when it resumes, and to give evidence as a witness if he so wishes."

20Despite the Guardianship Tribunal's assurance that APY could attend the hearing and give evidence as a witness, he says he was not permitted to give such evidence. He concedes that he was able, through his wife, to correct at least one assumption that the Guardianship Tribunal had made relating to AAE's income. APY provided excerpts from an unofficial transcript of proceedings before the Guardianship Tribunal. Those excerpts record that APY asked the presiding member on two occasions whether he would have a chance to make a comment. APY's version of the transcript records the presiding member as saying, "You are not a party to the proceedings." We do not have the full transcript and have not listened to the entire tape recording of the proceedings.

21On the basis of APY's unofficial transcript and the evidence he gave, we are satisfied that APY asked to speak during the hearing but was refused that opportunity. He did convey certain information to the Tribunal through his wife. It follows that despite the Guardianship Tribunal advising APY that he could give evidence as a witness if he wished, he was not permitted to do so.

22The Guardianship Tribunal may "inform itself on any matter in such manner as it thinks fit": Guardianship Act, s 55(1). In this case it decided not to hear from APY presumably because his interests were not affected by his wife's application. In those circumstances there was no breach of procedural fairness.

Leave to appeal on 'other grounds'?

Principles

23AAD may appeal as of right on any question of law but leave is required before an appeal can go ahead on any other ground. The "other grounds" on which AAD appealed related to the Guardianship Tribunal:

(1)making incorrect findings of fact;

(2)not making relevant findings of fact; and

(3)ignoring or failing to explore evidence.

24The ADT Act does not contain any guidance on the relevant matters to be taken into account in determining whether leave should be granted. The Supreme Court has provided some guidance on this question in the cases of K v K [2000] NSWSC 1052; S v S [2001] NSWSC 146 and Re R [2000] NSWSC 886 (17 August 2000). Those cases interpret s 67 of the Guardianship Act which is the equivalent provision in relation to appeals from Tribunal decisions to the Supreme Court. In K v K, Young J observed at [10] that `it has never been clearly decided what the circumstances are that should lead the Court to grant leave to appeal under s 67', but went on to make a number of observations on this point: see para [10]-[15]. After considering the relationship between the Court and the Tribunal, Young J observed at [15]:

It would seem to me that s 67 of the Guardianship Act operates so that broad questions of administration and policy and the applicability of policy to individual cases, even if they are not questions of law, may well be subjects on which the Court will grant leave to appeal. On the other hand, 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.

Failing to make relevant findings of fact about NSW Trustees' fees

25Several of APY's grounds of appeal relate to a failure by the Guardianship Tribunal to make a factual finding about the amount the NSW Trustee would charge the estate for administration and external advice. APY submitted that the Guardianship Tribunal should have made a finding that those charges were onerous and that it would be in AAE's best interests for her estate to be managed privately.

26The Guardianship Tribunal summarised the evidence before it on the issue of the amount of fees the NSW Trustee had charged to date:

[AAD] claimed that the NSW Trustee charges [AAE]'s estate fees of between $30,000 and $40,000. [AAD] submitted that this money could be applied instead to [AAE]'s care. Ms Diane Carter (officer of the NSW Trustee and Guardian) then gave evidence that the NSW Trustee has, to date, charged [AAE]'s estate fees amounting to $8,861.48 in total.

27Towards the end of its reasons, the Guardianship Tribunal made the following statement:

In reaching its decision, the Tribunal took account of the practice of the NSW Trustee to charge fees for the administration of an estate under management. Notwithstanding those fees, the Tribunal was satisfied that it is in [AAE]'s best interests for her to have an independent financial manager.

28The fees charged by the NSW Trustee are a relevant matter to be taken into account when determining whom to appoint as financial manager. In Holt v Protective Commissioner (1993) 31 NSWLR 227 at 242 Kirby P stated that ". . . in a smaller estate it may often be appropriate to appoint a family member who will be entirely familiar with the assets and liabilities and readily able to manage them with greater economy and possibly free of cost to the protected person." In that context, Kirby P added that, "The Protective Commissioner (now the NSW Trustee) is entitled to and ordinarily does recover fees under the Act "

29The Guardianship Tribunal took into account the fact that the NSW Trustee charges fees for its services including any services provided by external lawyers or financial advisers. The Guardianship Tribunal did not attempt to estimate the amount of the NSW Trustee's fees and charges in the future. There is nothing unfair or unorthodox about failing to make such a factual finding.

Incorrect finding about basis for charging fees

30A finding of fact with which AAD disagreed was the following statement in the reasons for decision:

The NSW Trustee charges fees calculated only on the value of [AAE]'s St Hubert's Island property, and the funds in her trust account, and in her account with the National Australia Bank.

31According to APY, this statement is incorrect because the NSW Trustee charges fees on all AAE's corporate assets and cash assets including superannuation and does not charge fees on the family home. He says that that "error" makes the final decision "unjust".

32As we have said, the Guardianship Tribunal is not obliged to make a factual finding as to the precise extent of the NSW Trustee's fees and charges when deciding whether to confirm or revoke the appointment of a particular financial manager. If the Guardianship Tribunal was mistaken in relation to the assets on which fees are charged, that mistake did not lead it to make a decision that it would not otherwise have made. The Guardianship Tribunal's main concern was the 'significant conflict' between the siblings, AAD and AAF and the effect of that conflict on AAE's interests.

Incorrectly finding that the appointment of the NSW Trustee would reduce conflict

33APY says that the Guardianship Tribunal incorrectly found that, "The appointment of the NSW Trustee may also assist by reducing the incidence of family conflict. The Tribunal recognised the importance of preserving [AAE]'s existing family relationships." According to APY, appointing the NSW Trustee as financial manager will not reduce family conflict.

34In the reasons for decision, the Guardianship Tribunal stated that:

[AAD] . . .had submitted that it would not harm [AAE]'s family relationship if she were to be appointed as her private financial manager. [AAD] emphasised that there is no animosity or conflict between AAE and herself. However, it was apparent to the Tribunal that there is significant conflict between AAD and AAF particularly on guardianship issues.

35APY submitted that the Guardianship Tribunal failed to consider evidence that AAF was the principal cause of family disunity. He indicated that the Guardianship Tribunal should have taken account of AAF's conduct, contrasted that with AAD's behaviour, and appointed AAD as the financial manager.

36We make no finding as to whether evidence before the Guardianship Tribunal would have justified a finding that AAF or anyone else did not act in AAE's best interests. Even if there was evidence supporting such a finding, that evidence was not relevant to any issue the Guardianship Tribunal had to resolve. The question before the Guardianship Tribunal was not whether AAE or AAF would make the better or more deserving financial manager. AAF was not nominating herself as a suitable financial manager. The question was whether it is in AAE's best interests for the appointment of the NSW Trustee to be revoked and for another person to be appointed.

Incorrect finding that private manager would have same difficulties as NSW Trustee

37Another factual error was said to be that the Guardianship Tribunal accepted the statement from Ms Carter, a representative from the NSW Trustee, that ". . .any financial manager would have the same difficulties as those faced by the NSW Trustee, given the structure of [AAE's] finances." According to APY that is not true because if his wife were to have a power of attorney for her mother, there would be virtually no difficulties. According to advice APY says he obtained from the Australian Taxation Office, AAD would be able to manage her mother's superannuation fund and her business interests. APY conceded that there was no evidence to that effect before the Guardianship Tribunal but offered to provide such evidence by 5 August 2013. He did not do so.

38In any case, APY has incorrectly assumed that the reference to "financial manager" in the passage quoted above includes a person appointed as power of attorney. We do not understand the statement to include such a person. Rather, we understand the reference to be to a private financial manager. If that is the case, the statement quoted by APY is correct.

Failure to examine decision to sell family home

39APY submitted that the Guardianship Tribunal failed to properly explore and question the NSW Trustee and Guardian's decision to sell the family home. The following passage from the Tribunal's decision addresses that issue:

Ms Carter gave evidence that it has not been possible for the NSW Trustee to pay AAE's accommodation bond, pending a decision as to the sale or rental of her residential property . . Ms Carter confirmed that a decision about the payment of the bond is imminent. She added that the NSW Trustee would liaise with both AAD and AAF concerning any decision about the sale.

40Kirby P made the point in Holt that, "Where it is shown that a person appointed as manager is incompetent or has acted in a relevant way improperly or unlawfully, the court may terminate the appointment and appoint another manager." As at the date of the hearing, the NSW Trustee had not made a final decision to sell the family home in order to pay the bond. APY's objection appears to be that if his wife had a power of attorney she would be in a position to obtain the money from other sources and avoid the sale of the family home. As we have said, the issue before the Guardianship Tribunal was whether the appointment of the NSW Trustee should be revoked, not whether the financial management order itself should be revoked. There was no need for the Guardianship Tribunal to 'explore' or 'question' the NSW Trustee's proposed decision to sell the family home because there was no suggestion that that decision involved any incompetence or impropriety.

Order

1. Leave to appeal on grounds other than a question of law is refused.

2. The appeal is dismissed.

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: 21 August 2013