MXC - [2023] NSWCATGD 8

No judgment structure available for this case.

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: MXC [2023] NSWCATGD 8
Hearing dates: 11 May 2023
Date of orders: 11 May 2023
Decision date: 11 May 2023
Jurisdiction: Guardianship Division
Before: J D’Arcy, Senior Member (Legal)
Decision:
The dates for submission of material is amended as follows: All parties to give to the Tribunal and all other parties, the material they rely upon by 15 June 2023.
The dates for submission of material in reply is amended as follows: All parties to give to the Tribunal and all other parties, the material in reply by 6 July 2023.
The Tribunal gives approval for the applicant to apply to issue a summons to Dr Z, subject to payment, and in accordance with the following schedule: “Clinical notes on MXC’s cognitive and decision-making capacity from 28 June 2018 to 30 March 2023.”
The Tribunal gives approval for the applicant to apply to issue a summons to The Proper Officer, of a commercial bank, subject to payment, and in accordance with the following schedule: “Copies of bank statements for all accounts in the name of [MXC] in her sole name or held jointly with another or other parties from 28 June 2018 to 30 March 2023.”
The Tribunal refuses approval for the applicant to apply to issue a summons to The Proper Officer, of a NSW Government agency because information concerning MXC’s driver’s licence and the reasons for cancellation of that licence are not relevant to the issues to be determined by the Tribunal.
The Tribunal notes that the schedules must be completed for each summons and the covering letters supplied with the summons do not constitute a schedule.
The hearing date of 9 June 2023 is vacated and the applications are to be set down for hearing at a date and time to be confirmed by the registry in late July 2023.

Catchwords:
INTERLOCUTORY – summons – application to issue summonses to produce documents – power of the registrar to issue summonses – relevance of the material sought to the review of an enduring power of attorney and review of an enduring guardianship appointment – considerations of privacy and welfare and interests of the person – decision to approve the issue of summonses with amended schedules

Legislation Cited:
Civil and Administrative Tribunal Act 2013 (NSW), s 48(1)
Civil and Administrative Tribunal Rules 2014 (NSW), r 34
Guardianship Act 1987 (NSW), s 4

Cases Cited:
None cited.

Texts Cited:
None cited.

Category: Principal judgment
Parties:
001: Review of an Enduring Power of Attorney

MXC (the person)
DZC (applicant)
TBD (attorney)
NSW Trustee and Guardian

003: Review of an Enduring Guardianship Appointment
MXC (the person)
DZC (applicant)
TBD (carer, enduring guardian)
NSW Trustee and Guardian
Public Guardian
Representation:
A Singh, agent for DZC
J Farquar, legal representative for TBD

File Number(s): NCAT 2023/00061818
Publication restriction: Decisions of the Guardianship Division of the Civil and Administrative Tribunal have been anonymised to remove any information that may identify any person involved in the Tribunal’s proceedings: Civil and Administrative Tribunal Act 2013 (NSW), s 65.

REASONS FOR DECISION

Background

These Reasons for Decision concern a review of the Registrar’s decision not to issue summonses in relation to applications to review an enduring power of attorney and enduring guardianship appointment made by MXC.
MXC is 72 years old and lives in her own home in South West Sydney with her son, Mr Y. MXC has two daughters, TBD and DZC.
MXC is reported to have a diagnosis of dementia.
On 28 June 2018 MXC made an enduring power of attorney and an enduring guardianship appointment appointing TBD as her attorney and enduring guardian.
On 21 February 2023, DZC applied to review the enduring power of attorney. On 4 April 2023 DZC applied to review the enduring guardianship appointment.
On 30 March 2023 in a directions hearing, TBD and DZC were both granted leave to be represented. Subsequently Mr Andrew Singh, DZC’s agent, submitted applications to issue the following three summonses:

To [Dr Z]:
(i)    Copies of prescriptions for the medications you prescribed for [MXC] from 1/1/18 to 30/3/23 inclusive.
(ii)    Copies of your clinical notes on [MXC] from 1/1/18 to 30/3/23 inclusive.
(iii)    Copies of all specialist referrals you made regarding [MXC] from 1/1/18 to 30/3/23.
(iv)    Copies of letters he wrote to NSW or federal government agencies from 1/1/18 to 30/3/23 inclusive in relation to [MXC]’s dementia.
To The Proper Officer, [of a NSW Government agency].
(i)    A copy of [MXC]’s NSW driver license (sic) that was cancelled sometimes (sic) in June 2017.
(ii)    Copies of correspondence sent to [MXC] by [NSW Government agency] (or its predecessor) regarding her driver licence from 1/1/16 to 26/6/18 inclusive.
(iii)    Copies of correspondence received from [MXC]’s doctor and/or specialist by [NSW Government agency] (or its predecessor) from 1/1/16 to 26/6/18 regarding MXC’s ability to drive.
(iv)    Copies of correspondence sent by [NSW Government agency] (or its predecessor) from 1/1/16 to 26/6/18 to [MXC]’s Dr and/or specialist relating to the cancellation of her driver licence.
To The Proper Officer
[of a commercial bank]
(i)    Copies of statements of [MXC]’s bank account from 1/1/2016 till 30/3/2023.
(ii)    Copies of documents provided to [a commercial bank] by [TBD] from, 28/6/2018 till 30/3/23 in relation to [MXC]’s bank accounts.
(iii)    Copies of deposit slips for cheques deposited into [MXC]’s account from 1/1/2014 to 31/12/2017 inclusive.
(iv)    Copies of all documents sent by [a commercial bank] to [TBD] in her capacity as attorney.

On 18 April 2023 the Registrar refused the applications on the basis of the broad nature of the schedules and the apparent lack of relevance to the issues in dispute to be determined by the Tribunal.

Relevant legislation

Subsection 48(1) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) grants power to the Registrar to issue a summons on the application of the party to the proceedings or at the direction of the Tribunal. The summons may require a person to attend and give evidence at a hearing, to produce documents or things, or both. The rules for the issue of the summonses are contained in r 34 of the Civil and Administrative Tribunal Rules 2014 (NSW). NCAT Procedural Direction 2: Summonses applies to the Tribunal’s consideration as to whether to issue a summons.
The principles in s 4 of the Guardianship Act 1987 (NSW) may also be considered when considering applications for summonses made to the Guardianship Division of the Tribunal.
The issue of a summons is a step of last resort. Parties are expected to take all reasonable steps to obtain evidence without the issue of a summons.
If the Registrar decides not to issue a summons, the person applying for the summons can ask the Tribunal to decide whether a summons should or should not be issued.
Mr Singh has asked the Tribunal to provide written reasons for its decision to approve two of the three summonses with amended schedules.

The Tribunal’s findings

The Tribunal has approved the issue of the summons to Dr Z and The Proper Officer, of a commercial bank, subject to payment, with the following amended schedules:

To [Dr Z]
Clinical notes on [MXC]’s cognitive and decision-making capacity from 28 June 2018 to 30 March 2023.
The Proper Officer, [of a commercial bank]
Copies of bank statements for all accounts in the name of [MXC] in her sole name or held jointly with another or other parties from 28 June 2018 to 30 March 2023.

According to the affidavits lodged by DZC, she alleges that her mother had severe dementia at the time of signing the enduring power of attorney.
To date, the medical evidence before the Tribunal comprises a report dated 22 March 2023 by Dr X, senior staff specialist geriatrician, in which she stated that MXC was diagnosed with mild Alzheimer’s dementia at her first clinic visit in 2018.
TBD gave evidence in the directions hearing that she did not commence to act under the enduring power of attorney until 20 March 2020.
In considering the s 4 principles of the Guardianship Act and, in particular, the welfare and best interests of MXC, the Tribunal is tasked with balancing her welfare, best interests and privacy against the request for information to facilitate the hearing.
The relevant issue in the applications before the Tribunal concern MXC’s cognitive capacity at the time that she signed the enduring power of attorney and the enduring guardianship appointment.
The amended schedule to the summons to Dr Z would capture the required information about her cognitive capacity from the date that she executed the instruments, whereas the schedule proposed by Mr Singh represents a significant invasion of MXC’s privacy because it includes any medical conditions that MXC was being treated for and for six months before the instruments were executed.
The amended schedule to the commercial bank effectively covers all of the information required to determine whether the attorney has operated under the enduring power of attorney in MXC’s best interests. The amended schedule evidences MXC’s deposits, income and expenditure, which is what Mr Singh attempted to achieve in his schedule, according to paragraph 32 of his submission. The amended schedule includes all accounts held by MXC both solely and jointly with another or others.
A person’s driver’s licence may be cancelled for a wide range of reasons, including health-related reasons. The Tribunal did not approve the issue of the summons to a NSW Government agency about the reason for cancellation of MXC’s licence to protect her privacy. The requisite information about her cognitive capacity is sufficiently covered by the amended schedule of the summons to be issued to Dr Z, who is her treating doctor, and who is best placed to provide the medical evidence.
The applications for the issue of summons to Dr Z and The Proper Officer, of a commercial bank, are approved in accordance with the amended schedules, and subject to payment, as stated in the Decision above.

**********

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

Decision last updated: 23 June 2023

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Citations

MXC [2023] NSWCATGD 8

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Medium Neutral Citation:	MXC [2023] NSWCATGD 8
Hearing dates:	11 May 2023
Date of orders:	11 May 2023
Decision date:	11 May 2023
Jurisdiction:	Guardianship Division
Before:	J D’Arcy, Senior Member (Legal)
Decision:	The dates for submission of material is amended as follows: All parties to give to the Tribunal and all other parties, the material they rely upon by 15 June 2023. The dates for submission of material in reply is amended as follows: All parties to give to the Tribunal and all other parties, the material in reply by 6 July 2023. The Tribunal gives approval for the applicant to apply to issue a summons to Dr Z, subject to payment, and in accordance with the following schedule: “Clinical notes on MXC’s cognitive and decision-making capacity from 28 June 2018 to 30 March 2023.” The Tribunal gives approval for the applicant to apply to issue a summons to The Proper Officer, of a commercial bank, subject to payment, and in accordance with the following schedule: “Copies of bank statements for all accounts in the name of [MXC] in her sole name or held jointly with another or other parties from 28 June 2018 to 30 March 2023.” The Tribunal refuses approval for the applicant to apply to issue a summons to The Proper Officer, of a NSW Government agency because information concerning MXC’s driver’s licence and the reasons for cancellation of that licence are not relevant to the issues to be determined by the Tribunal. The Tribunal notes that the schedules must be completed for each summons and the covering letters supplied with the summons do not constitute a schedule. The hearing date of 9 June 2023 is vacated and the applications are to be set down for hearing at a date and time to be confirmed by the registry in late July 2023.
Catchwords:	INTERLOCUTORY – summons – application to issue summonses to produce documents – power of the registrar to issue summonses – relevance of the material sought to the review of an enduring power of attorney and review of an enduring guardianship appointment – considerations of privacy and welfare and interests of the person – decision to approve the issue of summonses with amended schedules
Legislation Cited:	Civil and Administrative Tribunal Act 2013 (NSW), s 48(1) Civil and Administrative Tribunal Rules 2014 (NSW), r 34 Guardianship Act 1987 (NSW), s 4
Cases Cited:	None cited.
Texts Cited:	None cited.
Category:	Principal judgment
Parties:	001: Review of an Enduring Power of Attorney MXC (the person) DZC (applicant) TBD (attorney) NSW Trustee and Guardian 003: Review of an Enduring Guardianship Appointment MXC (the person) DZC (applicant) TBD (carer, enduring guardian) NSW Trustee and Guardian Public Guardian
Representation:	A Singh, agent for DZC J Farquar, legal representative for TBD
File Number(s):	NCAT 2023/00061818
Publication restriction:	Decisions of the Guardianship Division of the Civil and Administrative Tribunal have been anonymised to remove any information that may identify any person involved in the Tribunal’s proceedings: Civil and Administrative Tribunal Act 2013 (NSW), s 65.