XDX - [2014] NSWCATGD 38

Civil and Administrative Tribunal

New South Wales

Case Title: XDX

Medium Neutral Citation: [2014] NSWCATGD 38

Hearing Date(s): 20 October 2014

Decision Date: 20 October 2014

Jurisdiction: Guardianship Division

Before: Redfern J, Principal Member

Decision:
Application dismissed.

Catchwords: SET ASIDE - scope and nature of set aside provisions - set aside based on s 53(4) and s 63 - failure to comply with a provision of the Act or procedural rules - legal representation - power to correct errors - relationship between set aside provisions and appeal rights.

Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), ss 45, 53 and 63
Guardianship Act 1987 (NSW)
Civil and Administrative Tribunal Regulation 2013 (NSW), reg 9

Category: Principal judgment

Parties: Ms XDX (subject person)
Ms DCN (daughter and original applicant)
Mr UMT (son and applicant for set aside)
Mr NET (son and applicant for set aside)
The NSW Trustee and Guardian

File Number(s): 55963

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

The Tribunal dismissed the application to set aside/vary the decision made on 29 July 2014 to commit the estate of Ms XDX to the NSW Trustee and Guardian for management.

Background

Ms XDX is a 96-year old woman who is a permanent resident of a nursing home in Southwest Sydney. She has had numerous admissions to other residential care facilities and multiple hospital admissions. She is said to be diagnosed with dementia with paranoia and challenging behaviours and multiple medical conditions. Ms XDX speaks Cantonese.
Ms XDX is widowed and has five children: Ms TBT, Ms DCN, Mr NET, Mrs BFL and Mr UMT. Four of Ms XDX's children live in Sydney and Mr NET lives in the United States of America.
According to reasons for decision for the orders made on 29 July 2014, Ms XDX executed an enduring power of attorney on 22 October 2010, which appointed Mr NET and Mr UMT as her attorneys to act on a joint and several basis. She also executed an enduring power of attorney and enduring guardian document on 22 December 2013, appointing Ms DCN as her sole attorney and enduring guardian. The later enduring power of attorney was revoked on 5 February 2014.
On 20 March 2014 the Tribunal received an application from Ms DCN for guardianship and financial management orders to be made for Ms XDX. On 26 June 2014 Mr UMT made an application for a guardian to be appointed for Ms XDX and on 24 July 2014 made a further application for a review of the enduring guardianship appointment.
All applications were listed for hearing on 29 July 2014.
On 29 July 2014, the Tribunal committed the estate of Ms XDX to the NSW Trustee and Guardian for management and adjourned the applications for guardianship and for the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] NSWCATGD 38
Decision Date: 20 October 2014

CaseChat Overview and Summary

The case of XDX involved a dispute over the decision to commit Ms XDX's estate to financial management by the NSW Trustee and Guardian. The decision was made on 29 July 2014 and was challenged on the grounds of alleged procedural errors. The contention was that the Tribunal did not comply with the provisions of the CAT Act and therefore the decision should be set aside or varied. The matter was brought before the Tribunal to determine the validity of the decision.

The central legal issue was whether the decision to commit Ms XDX's estate to financial management could be set aside under s 53(4) or s 63 of the CAT Act. Specifically, the contention was that the Tribunal did not comply with s 45(1) and (3) of the CAT Act by allowing Mr JCN to represent Ms DCN and by not giving them the opportunity to be legally represented. It was argued that this constituted an irregularity that warranted the decision being set aside.

The Tribunal considered the evidence and found that Mr JCN did not represent Ms DCN at the hearing, as she represented herself. Additionally, there was no application for leave to be legally represented, nor did Mr UMT or Mr NET seek an adjournment to obtain representation. The Tribunal also found that s 53 of the CAT Act, which addresses irregularities, was not applicable to the circumstances as contended by Mr UMT. The Tribunal concluded that the claim was not substantiated and dismissed the application.

The Tribunal's final order was that the application to set aside or vary the decision to commit Ms XDX's estate to financial management was dismissed. The decision of 29 July 2014 remained in place.

Orders

Orders of the court

Application dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Section 63 of the CAT Act allows the Tribunal to "correct errors" in decisions but in the limited circumstances prescribed as follows:Power to correct errors in decision of Tribunal (1) If, after the making of a decision by the Tribunal, the President or the member who presided at the proceedings is satisfied that there is an obvious error in the text of a notice of the decision or a written statement of reasons for the decision, he or she may direct a registrar to alter the text of the notice or statement in accordance with the directions of the President or the member. (2) If the text of a notice or statement is so altered, the altered text is taken to be the notice of the Tribunal's decision or the statement of its reasons, as the case may be, and notice of the alteration is to be given to the parties in the proceedings in such manner as the President or member may direct. (3) Examples of obvious errors in the text of a notice of a decision or a statement of reasons for a decision are where: (a) there is an obvious clerical or typographical error in the text of the notice or statement, or (b) there is an error arising from an accidental slip or omission, or (c) there is a defect of form, or (d) there is an inconsistency between the stated decision and the stated reasons. The issue for determination by the Tribunal was whether the decision of the Tribunal on 29 July 2014 to commit Ms XDX's estate to financial management by the NSW Trustee and Guardian can or should be set aside or varied on the basis of s 53(4) and/or s 63 of the CAT Act. Mr UMT, as supported by Mr NET, contended that the Tribunal did not comply with subs (1) and (3) of section 45 of the CAT Act by allowing Mr JCN to represent Ms DCN and by not giving them the opportunity to be legally represented. This failure was said to be an "irregularity" within the meaning of s 53(4) and the Tribunal is thereby empowered to set aside the decision. There are a number of difficulties with this contention. First, a review of the reasons for decision and the recording of the hearing reveal that Mr JCN did not represent Ms DCN at the hearing on 29 July 2014. Ms DCN represented herself and Mr JCN gave evidence to the Tribunal as a witness when called upon to do so. Accordingly, the factual assertion made by Mr UMT is not established. Secondly, while s 45(3) provides that the Tribunal may grant leave for representation, there must be an application for leave made by a person to enliven the obligation of the Tribunal to exercise its discretion. There was no such application nor did Mr UMT or Mr NET seek representation or an adjournment to obtain representation. This claim is therefore not made out. Thirdly, but more fundamentally, I do not accept that s 53 applies to the circumstances as contended by Mr UMT. Section 53 focuses on non-compliance with provisions and procedural rules that create any irregularity. There is no definition of "irregularity" in the CAT Act but the plain English meaning, as set out in the Oxford English Dictionary, connotes "not in conformity with [a] rule or principle." Section 53(3) refers to "the provisions of the Act and procedural rules." While on its face this section may encompass a wide range of provisions and rules, including those provisions directed to procedural fairness, to interpret the effect of s 53(4) so broadly would unnecessarily trespass on the rights of appeal established in Part 6 of the CAT Act. Section 53 is a beneficial but practical provision intended to give effect to documents and decisions affected by technical procedural defects and to give the Tribunal discretion to correct such defects. This is clear from the language, heading and context of s 53 when read as a whole. Furthermore, s 53 is directed to the conduct and actions of the parties, not the Tribunal.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Case Title:	XDX
Medium Neutral Citation:	[2014] NSWCATGD 38
Hearing Date(s):	20 October 2014
Decision Date:	20 October 2014
Jurisdiction:	Guardianship Division
Before:	Redfern J, Principal Member
Decision:	Application dismissed.
Catchwords:	SET ASIDE - scope and nature of set aside provisions - set aside based on s 53(4) and s 63 - failure to comply with a provision of the Act or procedural rules - legal representation - power to correct errors - relationship between set aside provisions and appeal rights.
Legislation Cited:	Civil and Administrative Tribunal Act 2013 (NSW), ss 45, 53 and 63 Guardianship Act 1987 (NSW) Civil and Administrative Tribunal Regulation 2013 (NSW), reg 9
Category:	Principal judgment
Parties:	Ms XDX (subject person) Ms DCN (daughter and original applicant) Mr UMT (son and applicant for set aside) Mr NET (son and applicant for set aside) The NSW Trustee and Guardian
File Number(s):	55963
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)).