Ng v Protective Commissioner

[2005] NSWADTAP 11

Appeal Panel - External

CITATION:	NG v Protective Commissioner and Ors [2005] NSWADTAP 11
PARTIES:	'NG' FIRST RESPONDENT Protective Commissioner SECOND RESPONDENT Meredith Ward THIRD RESPONDENT 'NH' DECISION MAKER Guardianship Tribunal
FILE NUMBER:	048019
HEARING DATES:	15/02/2005
SUBMISSIONS CLOSED:	02/15/2005
DATE OF DECISION:	03/21/2005
DECISION UNDER APPEAL:	Guardianship Tribunal C/28245 Matter No. 2004/403
BEFORE:	Hennessy N - Magistrate (Deputy President); Leal S - Judicial Member; Wunsch A - Non Judical Member
CATCHWORDS:	Financial management order - making - Leave to appeal on other grounds - Opportunity to respond to adverse evidence
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	C/28245
DATE OF DECISION UNDER APPEAL:	10/21/2004
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Guardianship Act 1987
CASES CITED:	Ansell v Wells (1982) 43 ALR 41; EMG v Guardianship and Administration Board of Victoria [1999] NSWSC 501 Kioa v West (1985) 159 CLR 550 KV v Protective & Ors; KW & Ors v KV & Ors (No.2) [2004] NSWADTAP 48; Moore v Guardianship And Administration Board & Another [1990] VR 902; Pilbara Aboriginal Land Council Aboriginal Corporation Inc v Minister for Aboriginal and Torres Strait Islander Affairs [2000] FCA 113 R v London Borough of Wandsworth; Ex parte P [1989] 1 FLR 387
REPRESENTATION:	APPELLANT In person RESPONDENTS No appearance
ORDERS:	The orders of the Guardianship Tribunal made on 15 October 2004 in relation to NH are affirmed.

Section 126 of the Administrative Decisions Tribunal Act 1997 applies to this decision.
Section 126 provides
(1A) This section applies only to the following:

(a) proceedings in the Community Services Division of the Tribunal,

(b) appeals to an Appeal Panel from a decision made by the Tribunal in the Community Services Division,

(b1) proceedings in relation to an external appeal made under section 67A of the Guardianship Act 1987 or section 21A of the Protected Estates Act 1983,

(b2) proceedings in relation to a reviewable decision made under the Guardianship Act 1987 or the Protected Estates Act 1983

(c) such other proceedings (or class or classes of proceedings) as may be prescribed by the regulations for the purposes of this section.


(1) A person must not, except with the consent of the Tribunal, publish or broadcast the name of any person:

(a) who appears as a witness before the Tribunal in any proceedings, or

(b) to whom any proceedings before the Tribunal relate, or

(c) who is mentioned or otherwise involved in any proceedings before the Tribunal,


whether before or after the proceedings are disposed of.
Maximum penalty: 10 penalty units or imprisonment for 12 months, or both.
(2) This section does not prohibit the publication or broadcasting of an official report of the proceedings that includes the name of any person the publication or broadcasting of which would otherwise be prohibited by this section.
(3) For the purposes of this section, 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.

Introduction

1 NH is an elderly woman who has dementia. She has lived in an aged care facility on the north coast of New South Wales since October 2003. As far as we are aware NH’s only assets are her home, which has been valued at approximately $300,000, and her only income is a pension of approximately $430 per fortnight. When NH moved into the aged care facility a bond of about $92,000 was required to be paid. The aged care facility negotiated with NH’s son, NG, in relation to the payment of the bond. On 6 November 2003, NH signed an enduring power of attorney appointing her son as the attorney. One of the reasons for the power of attorney was so that NG could organise a mortgage over his mother’s property in order to pay the bond. In January 2004, when the aged care facility had still not received payment for the bond, Ms Ward, an occupational therapist with the local Aged Care Assessment Team, applied to the Guardianship Tribunal (the Tribunal) for the appointment of the Protective Commissioner as NH’s financial manager.

2 The first hearing was held on 16 April 2004. Ms Ward’s application was adjourned to enable NG to finalise the financial arrangements necessary to pay the bond on his mother’s behalf. The second hearing was held on 4 June 2004. At that hearing NG described the arrangements which still needed to take place in order to finalise the payment of the bond. The Tribunal adjourned the application again and set it down for hearing in October 2004. The Tribunal said in its reasons for adjourning the application that if NG had paid the bond by the time of the next hearing they would look forward to dismissing the financial management application.

3 At the October hearing Ms Ward was present and NG participated by phone. Prior to the hearing, NG had arranged an “asset unlock” loan on behalf of his mother for $50,000 using his mother’s property as security. Under the terms of this loan, no repayments are made and the loan amount accrues compound interest at the rate of 11% per year. NG used this money, together with some of his mother’s savings, to pay the bond to the aged care facility. NG told us that because he had paid the bond he expected Ms Ward’s application to be dismissed when the Tribunal spoke to him on the phone in October. Contrary to his expectations, the Tribunal questioned him about his failure to provide sufficient petty cash to the aged care facility to cover his mother’s personal expenses for such things as hairdressing, podiatry and clothing. NG said that he was not provided with any notice that non-payment of petty cash would be an issue and, apart from the application for financial management, he did not receive any documents or other reports from the Tribunal prior to the hearing.

4 The Tribunal found that NG had the money to pay for his mother’s personal expenses but that he did not appreciate his mother’s needs and did not make arrangements for necessary expenses to be paid. On that basis, the Tribunal appointed the Protective Commissioner to manage NH’s property and financial affairs. That appointment has the effect of suspending the enduring power of attorney held by NG.

Scope of Appeal

5 The Appeal Panel's jurisdiction to hear external appeals comes from s 67A of the Guardianship Act 1987 (the Act) and s 118A of the Administrative Decisions Tribunal Act 1997 (ADT Act). An external appeal can be made as of right on any question of law, but the Appeal Panel needs to give its permission before hearing an appeal on any other ground, including the merits of the decision. In this case, NG appealed on questions of law and also requested that the appeal be extended to the merits of the decision.

6 NG’s main ground of appeal was that the Tribunal did not afford him procedural fairness. In particular, he had no notice that the payment of petty cash for his mother’s personal expenses was an issue until the hearing took place by phone. He said he did not have a copy of a letter from Ms Buckland, manager of the aged care facility, complaining about non-payment. He said that he did not have an adequate opportunity to provide further documents to the Tribunal in response to the allegations in Ms Buckland’s letter. The evidence from Ms Buckland’s report of 6 October 2004 was that:

(NG) left $50 as a petty cash amount to be held here at the Villa for incidentals his mother may require, eg podiatrist, hairdresser. This was deposited on May 12th and there have been no further amounts deposited. (NH) will be seeing the podiatrist on 11th of October at a cost of $30, this will then leave her a balance of only $14. (NG) makes no direct inquiries regarding his mother’s needs and is very difficult to contact if anything is required.

7 Elements of procedural fairness. In KV v Protective & Ors; KW & Ors v KV & Ors (No.2) [2004] NSWADTAP 48 the Appeal Panel set out its understanding of the elements of procedural fairness as they apply to decisions of the Tribunal. We adopt the reasoning and conclusions in that decision. In that decision the Appeal Panel concluded that the “hearing rule”, which is one element of the procedural fairness, requires that a decision maker hear a person before making a decision affecting their interests. In deciding whether the Tribunal has complied with the rules of procedural fairness the Appeal Panel must ask itself:

· whether the interests, rights or legitimate expectations of NG are affected by the Tribunal’s decision? ( Kioa v West (1985) 159 CLR 550 at 584 per Mason J);

· whether there are exceptional circumstances such as the need for confidentiality, which would legitimately prevent the Tribunal from disclosing medical reports to parties?

· whether the material is “credible, relevant and significant to the decision to be made” (Kioa v West (1985) 159 CLR 550 per Brennan J at 629); and

· if so, whether that material, or the substance of that material, was put to NH in circumstances where he had an adequate opportunity to respond to it?

8 NH’s interests. Because the appointment of the Protective Commissioner deprives NH of the benefit she would normally have of making independent decisions about her financial affairs, her welfare and interests “should be given paramount consideration”: s 4(a). Although NH’s interests are paramount, they are not expressed to be the sole consideration that the Tribunal may take into account. (R v London Borough of Wandsworth; Ex parte P [1989] 1 FLR 387, per Ewbank J.) Other people may have interests which, depending on the circumstances of the case, give rise to an obligation to afford them procedural fairness.

9 NG’s interests. At the time of the Tribunal hearing, NG held an enduring power of attorney in relation to NH and was a party to the application for financial management by virtue of that fact: s 3F(5)(e). He was in the privileged legal position of making certain financial decisions on behalf of NH. The appointment of the Protective Commissioner meant that he was no longer legally entitled to make financial decisions on behalf of NH. In those circumstances we are satisfied that NG had a legal interest in the proceedings that was affected by the Tribunal’s decision.

10 Exceptional circumstances: confidentiality/serious harm. As the relevant evidence about NG’s failure to provide for his mother’s personal expenses related to NG himself and not to his mother, there were no exceptional circumstances which gave rise to the need for confidentiality.

11 Credible relevant and significant material. Ms Buckland’s report contained “credible, relevant and significant” material about NG’s capacity to manage his mother’s financial affairs.

12 Substance or gravamen of material. Procedural fairness requires that at least the substance of any credible, relevant or significant document be disclosed to a party whose interests are affected. (Ansell v Wells (1982) 43 ALR 41; Pilbara Aboriginal Land Council Aboriginal Corporation Inc v Minister for Aboriginal and Torres Strait Islander Affairs [2000] FCA 113 at 557.) NG agreed that the Tribunal put to him at the hearing the concerns raised by Ms Buckland about the lack of cash available for his mother’s personal needs. We are satisfied that the substance or gravamen of the material was put to NG at the hearing.

13 What constitutes an adequate opportunity to respond? If a document is “credible, relevant and significant” then a reasonable time must be given for the party to inspect and make comment on the document. (Moore v Guardianship And Administration Board & Another [1990] VR 902) The need to allow a party to ask questions and, if necessary, to have the proceedings adjourned to address adverse material was highlighted by Young J in EMG v Guardianship and Administration Board of Victoria [1999] NSWSC 501, 28 May 1999. The Supreme Court said at [43], that

. . . the Tribunal must give the defendant or applicant the chance of contradicting material which is put before it and if need be, may have to grant an adjournment for that to be done. In a tribunal such as the present where lawyers are only allowed with the permission of the tribunal, a tribunal may indeed have a duty to point out to an applicant or defendant that if he or she does consider that an adjournment is needed, they have a right to ask for it. It may not be sufficient in any particular case to just say to an unrepresented person at the end of evidence which has been given by telephone (or by a witness personally present) against them for the first time, of which they had no notice, that they can ask questions over the telephone of the witness if they want to.

14 Young J found that in the circumstances of that case, the Tribunal did not deny any of the parties natural justice. Unlike the situation in EMG v Guardianship and Administration Board of Victoria, the Tribunal in this case did not give NG any opportunity to test the evidence in Ms Buckland’s report. He did not even have access to the report and Ms Buckland did not give any oral evidence.

15 Conclusion. NG’s legal interests are affected by the Tribunal’s decision and there is no “clear manifestation” in the Act of an intention that he not be afforded procedural fairness. In the light of the Tribunal's jurisdiction, the statutory requirements about how that jurisdiction is to be exercised and judicial statements, the Tribunal is obliged to give him an adequate opportunity to respond to any adverse information that is “credible, relevant and significant to the decision to be made”. The general rule will not apply where there are exceptional circumstances, such as the need for an urgent hearing or where the material needs to be kept confidential because, for example, disclosure could cause serious harm to the health or safety of a person. None of these circumstances was present, in this case.

16 The Tribunal did not give NG an adequate opportunity to respond to the opinions expressed in Ms Buckland’s report or to obtain documentary evidence which would contradict the information in that report. It follows that we consider that the Tribunal has made an error of law.

Extension to the merits

17 In the circumstances of this case we decided to extend the hearing to the merits of the decision because Ms Ward and Ms Merlow, the office manager from the aged care facility, as well as NG were all present. The time and cost involved in the Tribunal travelling to the north coast for a further hearing involving the same parties persuaded us that we should deal with the merits of the decision.

18 When deciding whether or not to make a financial management order, the Tribunal must be satisfied that:

(a) the person is not capable of managing those affairs, and

(b) there is a need for another person to manage those affairs on the person’s behalf, and

(c) it is in the person’s best interests that the order be made: s 25G.

19 Under s 25M if the Tribunal makes a financial management order in respect of the estate of a person, it may either appoint a suitable person as manager of that estate or commit the management of that estate to the Protective Commissioner. In this case, there was no dispute that NH was not capable of managing her financial affairs. The issue was whether there was a need for another person to manage those affairs given that NH’s son had an enduring power of attorney. NG’s ability to manage his mother’s financial affairs in her best interests is the focus of the inquiry.

20 Ability to provide for NH’s personal expenses. NG agreed that he had only paid one amount of $50 to the aged care facility since his mother moved in. He said that apart from one occasion when he saw Ms Merlow at the chemist just before Christmas in 2004, no-one from the aged care facility had asked him to pay any expenses on his mother’s behalf. That evidence was contrary to evidence given by Ms Merlow. She said that the aged care facility has a system whereby family members pay a small amount of petty cash to be used for the personal expenses of residents. Ms Merlow said that she has asked NG for petty cash for his mother either personally or in writing at least two dozen times since May 2004. No money had been paid. She said the aged care facility has had to use money obtained from fund raising efforts to pay for podiatry appointments and a haircut for NH.

21 Findings. We find that NG has not paid for his mother’s personal expenses apart from some chemist bills since May 2004 and has ignored phone calls and oral requests to do so. While this makes it extremely difficult for the aged care service to meet NH’s expenses, we are of the view that an informal arrangement could be made in order to overcome this problem. However, other matters which came to light during the hearing, were of far greater concern.

22 NG’s occupation of his mother’s home. NG volunteered during the course of the hearing that he was living in his mother’s home rent free. He said that he planned to sell her home at some stage and that he would like to do so within the next five years as the “asset unlock” loan which he understood was accumulating compound interest at the rate of 11% per annum, means that the bank would own the home in a relatively short period of time.

23 Need for financial manager and NH’s best interests. It is not in NH’s best interest for her son to occupy her home rent free. Furthermore, rather than protecting his mother’s asset by either paying rent himself, renting the property to tenants or selling the property and investing the proceeds, NG is allowing the value of the property to rapidly decrease because of the high compound interest being charged on the “asset unlock” loan. No repayments are being made on that loan and within a relatively short time NH’s major asset will be dissipated.

24 Conclusion. There was no dispute that NH was not capable of managing her financial affairs. There is a need for another person to manage those affairs and it is in NH’s best interests that the order be made. It is NG’s inability to manage his mother’s financial affairs in her best interests which persuades us that the Protective Commissioner should be appointed as NH’s financial manager. Although we have found an error of law sufficient to set aside the Tribunal’s decision and granted leave to extend the appeal to the merits of the decision, our conclusion on the merits is the same as that of the Tribunal. Consequently, the only order we need make is to affirm the Tribunal’s decision.

Orders

The orders of the Guardianship Tribunal made on 15 October 2004 in relation to NH are affirmed.