HX v Protective Commissioner
[2009] NSWADTAP 16
•17 March 2009
Appeal Panel - External
CITATION: HX v Protective Commissioner and Anor [2009] NSWADTAP 16 PARTIES: APPELLANT
HX1st RESPONDENT
Protective Commissioner2nd RESPONDENT
3rd RESPONDENT
HY
New Horizons Pty LtdFILE NUMBER: 088010 HEARING DATES: 18 November 2008 SUBMISSIONS CLOSED: 23 December 2008
DATE OF DECISION:
17 March 2009BEFORE: Hennessy N - Magistrate (Deputy President); Leal S - Judicial Member; Wunsch A - Non-Judical Member CATCHWORDS: Adoption of previous findings, procedural fairness FILE NUMBER UNDER APPEAL: C/33625 LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Guardianship Act 1987CASES CITED: Barghouthi v Transfield Pty Ltd [2002] FCA 666
XYZ v State Trustees Limited & Anor [2006] VSC 444
R v Australian Broadcasting Tribunal; ex parte Hardiman [1980] HCA 13; (1980) 144 CLR 13REPRESENTATION: APPELLANT
In person1st RESPONDENT
No appearance2nd RESPONDENT
3rd RESPONDENT
No appearance
P Amos, agentORDERS: 1. The decision of the Guardianship Tribunal to confirm the financial management order made in relation to HY on 10 May 2006 is affirmed
2. The decision of the Guardianship Tribunal to confirm the appointment of the Protective Commissioner as HY’s financial manager is affirmed.
Introduction
1 HY is a 56 year old man with an intellectual disability and schizophrenia. He lives in a group home operated by New Horizons Enterprises Limited, under contract from the Department of Ageing, Disability and Home Care. When HY’s father died he left him his entire estate which currently amounts to about $200,000. HY’s brother, HX, apparently commenced proceedings in the Supreme Court to claim what he regarded as his share of the estate but says he has not pursued that action. He also says that he is entitled to about $52,000 of that amount for renovations he carried out to his father’s home before it was sold and for funeral expenses.
2 In 2006 New Horizons applied to the Guardianship Tribunal for a financial management order in relation to HY. On 10 May 2006 the Guardianship Tribunal made an order that HY’s estate be subject to management by the Protective Commissioner. In September 2007 HX applied to the Guardianship Tribunal to revoke that order. HX’s argument was that he had previously held a power of attorney in relation to his brother’s estate and that his brother would be better off if he managed his financial affairs.
3 The Guardianship Tribunal rejected HX’s application. In June 2008 HX again applied for the order to be revoked or for the Tribunal to appoint him as his brother’s financial manager in place of the Protective Commissioner. The Guardianship Tribunal confirmed the financial management order and the appointment of the Protective Commissioner as HY’s financial manager. HX has appealed against that decision to the Appeal Panel of this Tribunal.
4 The Appeal Panel's jurisdiction to hear external appeals comes from section 67A of the Guardianship Act 1987 and section 118A of the Administrative Decisions Tribunal Act 1997 (ADT Act). An external appeal may be made as of right on any question of law or by leave on any other ground: ADT Act, section 118B(I). HX did not elect to appeal on a question of law but did seek leave to appeal on other grounds. Because HX was self-represented, the Appeal Panel has a duty to identify a question of law if it forms a preliminary view that one may exist: Barghouthi v Transfield Pty Ltd [2002] FCA 666; XYZ v State Trustees Limited & Anor [2006] VSC 444 at [43].
Parties and representation
5 The appellant, HX, represented himself. HY was not able to come to the Tribunal but his accommodation provider, New Horizons Enterprises Ltd, was joined as a party to the proceedings and was represented by an agent, Mr P Amos: Administrative Decisions Tribunal Act 1997 (ADT Act), s 67(2A)(b). The Protective Commissioner is the first respondent but she chose not to play any role in the proceedings. The Guardianship Tribunal said that it wished to have an active role in the appeal, but only to the extent of being available to make submissions in relation to its practices and procedures. That is consistent with the principles outlined by the High Court in R v Australian Broadcasting Tribunal; ex parte Hardiman [1980] HCA 13; (1980) 144 CLR 13 at 35. Ms Cho appeared for the Guardianship Tribunal.
Tribunal’s decision
6 Application for revocation. Although the Guardianship Tribunal did not make a finding that HX had standing to make the applications, we assume that it formed the opinion that he was a person with “a genuine concern for the welfare” of HY: Guardianship Act, s 25S(1)(b)(ii) and s 25R(d). The Tribunal set out the test for revoking a financial management order in the following terms:
The Tribunal may revoke the financial management order only if:
a) it is satisfied that [HY] is capable of managing his affairs; OR
b) it considers that it is in the best interests of [HY] that the order be revoked.
7 That summary accurately reflects the requirements of s 25P(2) of the Guardianship Act.
8 In relation to HX’s alternative application, that he be appointed as the manager of his brother’s estate in place of the Protective Commissioner, the Tribunal summarised the issue as follows:
Is it in the best interests of [HY] that the appointment of the Protective Commissioner be revoked?
If so, who should be appointed financial manager?
9 That summary accurately reflects the requirements of s 25U(4).
10 The Tribunal found that HY is not capable of managing his financial affairs and that it was not in his best interests for the financial management order to be revoked. The Tribunal then went on to consider whether it was in HY’s best interests for the appointment of the Protective Commissioner to be revoked. The part of the decision to which HX objected appears at page 5:
In view of the demand that [HX] has made on the Protective Commissioner for monies, the Tribunal remains of the view that [HX] has a financial conflict of interest if he were to manage his brother’s financial affairs.
[HY] is unable to manage his financial affairs because of his disability, [HY] is a person that can be taken financial advantage of and is easily swayed. [HX]’s demand for money from [HY]’s inheritance is in conflict with the best interests of [HY]. [HX] is of the view that he does not have a financial conflict of interest. The Tribunal is of the view that there is a clear conflict of interest. The Tribunal made the following observations in its Reasons for Decision dated 28 September 2007: “[HX] was evasive when giving details concerning his legal action to challenge the will. [HX]’s actions in seeking to transfer [HY]’s inheritance money to Mr [X] (his brother) are most troubling. [HX] is of the view that as [HY] purportedly agreed to this arrangement that this is sufficient. [HX] failed to acknowledge that because of this brother’s serious mental health condition he is not able to effectively protect his own financial interests”. [HX] arranged for his brother to sign a power of attorney when there were serious capacity issues to signing such an important legal document. For these reasons, the Tribunal is of the view that [HX] is not a suitable person to manage his brother’s financial affairs.
Grounds of appeal
11 HX’s ground of appeal was that the Guardianship Tribunal wrongly found that he was not a suitable person to be the manager of his brother’s estate. He said that that conclusion was based on a misunderstanding of the role he had played in relation to his brother’s financial affairs and on previous prejudicial findings in the Guardianship Tribunal’s decision of 28 September 2007. The finding of the Tribunal to which HX objected in the 10 July 2008 decision was that his demand for money from HY’s inheritance is in conflict with the best interests of HY. HX denies demanding money from HY. He says that he and his brother agreed that renovations should be carried out to the family home in 2002. HX says he merely sought reimbursement for these expenses from the money his father left to HY.
12 Conflict of interest? The Guardianship Tribunal did not say that HX had demanded money from HY directly. Rather, the Guardianship Tribunal made it clear that the demand was from HY’s estate which is managed, on his behalf, by the Protective Commissioner. The Presiding Member put to HY during the hearing on 24 June 2008 that if there was a dispute about his entitlement to the $52,000, or part of that amount, and HX was the manager of his brother’s estate, there would be no-one to protect HY’s interests. HX made it clear, at p 16 of the transcript, that he regards himself as being entitled to the money.
13 The Presiding Member also asked HX, at p 9 of the transcript, whether he remembered the discussion about a conflict of interest at the previous hearing. HX replied “there could have been”. The Presiding Member clarified that “there was discussion at the hearing about some court action that your were taking in relation to an estate.” He asked HX about those proceedings. HX said that he was “yet to hear” what was happening. Later HX said he had commenced proceedings in the Supreme Court to claim what he regarded as his share of the estate but has not pursued that action.
14 In our view, the Guardianship Tribunal made no error of fact or law in reaching the conclusion that there was a conflict of interest between HX and HY in relation to HX’s claim for reimbursement for renovations and funeral expenses. We understand that HX has applied to the Protective Commissioner for that money to be reimbursed. HX said that the Protective Commissioner was yet to determine that matter. The Tribunal did not err in coming to the conclusion that it is in HY’s best interests that that assessment be conducted by an independent person, such as the Protective Commissioner, rather than by HX. Consequently we see no reason to set aside the Guardianship Tribunal’s finding on that matter.
15 Adoption of earlier findings. HX also objected to the Tribunal adopting certain findings from the September 2007 decision. Those findings together with a summary of HX’s objection, are as follows:
1. HX was evasive when giving details concerning his legal action to challenge the will.
HX said he felt that he responded in a “clear and unrestricted manner to most questions addressed to him with the proviso that some questions required a degree of recall.”
2. HX’s actions in seeking to transfer HY’s inheritance money to Mr X (his brother) are most troubling.
HX’s explanation is that he held a power of attorney in relation to his brother at the time and he wanted to ensure that all the money was not invested with the same institution. Accordingly he intended to ask his other brother to transfer some of the money into a blue ribbon building society as he lived close to such an institution.
3. HX failed to acknowledge that because of this brother’s serious mental health condition he is not able to effectively protect his own financial interests.
HX’s response was that HY has a moderate intellectual disability and suffers from chronic schizophrenia.
4. HX arranged for his brother to sign a power of attorney when there were serious capacity issues to signing such an important legal document.
HX said that a Senior Chamber Magistrate from Wallsend Local Court explained the significance of the power of attorney to HY before it was executed.
16 Adoption of previous findings. The Tribunal adopted the four findings listed above from the previous decision. If the Tribunal had done so without giving HX an opportunity to address those issues, the adoption of those findings may have constituted a breach of procedural fairness. However, the transcript of the proceedings discloses that the Tribunal adopted those findings only after giving HX an opportunity to respond to those issues. When questioned about the legal action he had taken in relation to his father’s will, HX said he could not tell the Guardianship Tribunal what was presently happening with that action. (Transcript at p 10.) Later, HX denied that he was contesting his father’s will. (Transcript at p 11.) Finally, he said that he had let the proceedings in the Supreme Court lapse. (Transcript at p 17.)
17 The Tribunal questioned HX in relation to the second finding that he was seeking to transfer HY’s inheritance to his other brother. (Transcript at p 22.) The Tribunal put to HX that it did not sound as if his other brother was in a position to manage HY’s financial affairs. HX was given an opportunity to respond to that proposition.
18 In relation to the third finding, HX does not appear to dispute that his brother is unable to make financial decisions for himself. The dispute relates to who should make those decisions on his behalf. The fourth finding was that HX arranged for his brother to sign a power of attorney in dubious circumstances. While HX told the Appeal Panel that the Senior Chamber Magistrate had explained the significance of the power of attorney to HY, he failed to mention that fact when questioned about it by the Tribunal. (Transcript at p 6, 7 and 8.)
Conclusion
19 There is no basis on which we would interfere with the Guardianship Tribunal’s finding that there is a conflict of interest between HX and HY in relation to the payment of money to HX for renovations to his father’s property. HX has said that he has applied to the Protective Commissioner for that money to be reimbursed to him. It is a matter for the Protective Commissioner to determine that issue. Although the Guardianship Tribunal adopted at least four findings it had made in previous proceedings, it did so only after affording procedural fairness to HX by raising those matters again and seeking a response from him. Ultimately, the Guardianship Tribunal was not satisfied that it was in HY’s best interests for the appointment of the Protective Commissioner to be revoked. The Tribunal made no error of a legal or factual nature in reaching that conclusion.
Order
1. The decision of the Guardianship Tribunal to confirm the financial management order made in relation to HY on 10 May 2006 is affirmed.
2. The decision of the Guardianship Tribunal to confirm the appointment of the Protective Commissioner as HY’s financial manager is affirmed.
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