NWN

[2015] NSWCATGD 5

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	NWN [2015] NSWCATGD 5
Hearing dates:	5 February 2015
Date of orders:	05 February 2015
Decision date:	05 February 2015
Jurisdiction:	Guardianship Division
Before:	Booby R, Senior Member (Legal) Williams P, Senior Member (Professional) Williams M, General Member (Community)
Decision:	Revocation of leave by solicitor to represent party
Catchwords:	INTERLOCUTORY – leave for legal representation – conflict of interest – solicitor acting for more than one party – solicitor as witness – leave for legal representation revoked
Legislation Cited:	Civil and Administrative Tribunal Act 2013 (NSW)
Category:	Principal judgment
Parties:	Mrs NWN (subject person) Ms ESN (applicant) The NSW Trustee and Guardian The Public Guardian
Representation:	Legal representation
File Number(s):	56681
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 (s 65, Civil and Administrative Tribunal Act 2013 (NSW))

REASONS FOR DECISION

What the Tribunal decided

1. The Tribunal adjourned the hearing of the applications for approximately two months to a date to be fixed by the Registrar.

Background

2. At the time of the hearing Mrs NWN was 68 years old. She resides in Regional NSW with her son, Mr UTN. She has two other sons who are Mr KVN and Mr LBN and two daughters who are Ms ESN and Mrs KCC.

3. On 23 June 2014 the Tribunal received applications seeking guardianship and financial management orders for Mrs NWN. The application lacked supporting medical documentation. Documentation subsequently received from medical practitioners was to the effect that Mrs NWN did not have a disability.

4. Mr KVN sought to withdraw his applications. However his application to withdraw the substantive applications was refused by a Tribunal member due to concerns about possible financial exploitation of Mrs NWN.

5. Mr KVN subsequently withdrew as the applicant for the orders and Ms ESN became the substitute applicant.

6. On 11 December 2014 the Tribunal:

• granted leave for Mr CFF, a solicitor, to represent Mrs NWN in all matters before the Tribunal;

• adjourned the hearing of the applications for approximately eight weeks; and

• issued directions to the parties regarding the filing of documents.

The Hearing

7. At the end of these Reasons for Decision are lists of the parties to the application and witnesses who attended the hearing [Appendix removed from publication].

Preliminary matter

8. Prior to considering the substantive applications the Tribunal considered the preliminary matter of Mr CFF's legal representation of Mrs NWN.

9. Subsection 45(1)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) is to the effect that a person may be represented before the Tribunal only by leave of the Tribunal.

10. Subsection 45(3)(a) of the Civil and Administrative Tribunal Act 2013 states that the Tribunal may "at its discretion" grant or refuse leave and subsection 45(3)(b) states that the Tribunal may, at its discretion, revoke any leave that it has granted.

11. As noted above, on 11 December 2014 the Tribunal granted leave to Mr CFF to represent Mrs NWN in all proceedings before the Tribunal.

Sale of property by Mrs NWN

12. The Tribunal that convened to hear the applications on 5 February 2015 was in receipt of documents related to the sale by Mrs NWN of her property at Regional NSW. The purchaser was her son, Mr LBN.

13. The Tribunal was also in receipt of documents raising concerns about Mrs NWN's understanding of the sale of the property and suggesting that she might not be fully aware that she had transferred all title to and claims on the property.

14. The copies of the front page of Contract for the Sale of Land dated 7 March 2014 and the Property Transfer, dated 19 March 2014, indicate that Mr CFF acted as the solicitor for Mr LBN in respect of the sale.

15. In response to questions from the Tribunal Mr CFF said that he acted for both parties in the sale. He provided the Tribunal with a copy of a letter dated 20 March 2014 addressed to Mrs NWN stating, amongst other matters, that the "monies were disbursed in accordance with your instructions…" However, he agreed with the Tribunal that the contract and transfer documents indicate only that he was the solicitor for the purchaser/transferee.

16. Mr CFF said that Mr LBN had approached him first about the sale and that it was Mr LBN whom he invoiced for his fees in relation to the sale. He said that he first saw Mrs NWN on 7 March 2014, the date of the contract.

Powers of Attorney and Enduring Guardianship Appointment

17. On 11 December 2014 Mrs NWN appointed Mr LBN as her attorney under an enduring power of attorney, and as her enduring guardian. The appointments were witnessed and certified by Mr CFF.

18. Mr CFF said that he acted for by Mrs NWN regarding these appointments. When asked whom he had invoiced he said that he had not yet issued a fees invoice.

The appropriateness of representation by Mr CFF

19. The Tribunal considered it likely that in establishing whether Mrs NWN is a person in need of a guardian and whether or not she is capable of managing her financial affairs, it would be necessary to consider, in some detail, the circumstances of the sale of the property at Regional NSW.

20. The Tribunal was of the view that Mr CFF could have a potential conflict of interest in seeking to represent Mrs NWN at the hearing should there be issues raised regarding her capacity to enter the contract for the sale of the property.

21. The Tribunal also considered it likely that whether it was accepted that Mr CFF acted for both Mrs NWN and Mr LBN in the sale of the property, or that he acted only for Mr LBN, it would be necessary to take evidence from Mr CFF about the sale of the property. It would also be necessary to take evidence from Mr CFF about the appointment by Mrs NWN of Mr LBN as her attorney and her enduring guardian.

22. The Tribunal provided time for Mr CFF to discuss with Mrs NWN options for proceeding with the matter. When the Tribunal reconvened Mr CFF said that he wished to continue representing Mrs NWN.

23. Mr CFF expressed the opinion that as the Tribunal is not bound by the rules of evidence, it was open to the Tribunal to consent to him representing Mrs NWN whilst also being a witness at the hearing.

24. The Tribunal considered Mr CFF's submission but concluded that it was not appropriate that he represent Mrs NWN in the matters before the Tribunal, both because of his possible conflict of interest, and also because of the likelihood that he would be required to give evidence to the Tribunal.

25. Having reached that conclusion the Tribunal revoked its consent for Mr CFF to represent Mrs NWN.

Adjournment

26. Mr CFF and Mrs NWN requested an adjournment of the hearing to enable arrangements to be made for Mrs NWN to be legally represented.

27. Ms ESN expressed some opposition to the proposal that the hearing be adjourned. However, the Tribunal was of the opinion that it was reasonable in all the circumstances to grant the adjournment and adjourned the hearing of the applications for approximately two months to a date to be fixed by the Registrar.

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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: 30 June 2015