NCAT Induction PDF

What is NCAT ? Presenter: Jamal Maroon NSW Civil and Administrative Tribunal (NCAT) Liaison Officer (NSW Trustee) Estate Management Acknowledgement of Country I acknowledge the Traditional Custodians of the various lands on which we work today and the Aboriginal and Torres Strait Islander people p...

What is NCAT ? Presenter: Jamal Maroon NSW Civil and Administrative Tribunal (NCAT) Liaison Officer (NSW Trustee) Estate Management Acknowledgement of Country I acknowledge the Traditional Custodians of the various lands on which we work today and the Aboriginal and Torres Strait Islander people participating in this meeting/webinar. I pay my respects to Elders past, present and emerging, and recognise and celebrate the diversity of Aboriginal peoples and their ongoing cultures and connections to the lands and waters of NSW. 2 NSW Trustee and Guardian – What is NCAT ? Introduction Contents Section Slide Section Title Number Number 1 Origin 5 2 Structure 7 3 Jurisdiction 11 4 Guiding Principle 13 5 General Procedures 15 6 Open Justice 17 7 Parties 19 8 Representation 21 9 Evidence 23 10 Costs 25 11 Spotlight: NCAT’s Guardianship Division 27 Case Study: 12 Journey of a Financial Management Application 37 through NCAT’s Guardianship Division 4 NSW Trustee and Guardian – What is NCAT ? 1 Origin  NCAT – A ‘Super Tribunal’ New South Wales Civil and Administrative Tribunal (‘NCAT’) was established on 1 January 2014. NCAT obtains its powers from: Civil and Administrative Tribunal Act 2013 (NSW) (‘NCAT Act’) Civil and Administrative Tribunal Regulations 2013 (NSW) (‘NCAT Regulations’) Civil and Administrative Tribunal Rules 2014 (NSW) (‘NCAT Rules’) Enabling Legislation NCAT aims to: Provide a single point of access for most NSW Tribunal services. Be accessible and responsive to users. Resolve the real issues in proceedings. NCAT consolidated the work previously dealt with Provide timely, fair and consistent decisions. by 22 separate tribunals. 6 NSW Trustee and Guardian – What is NCAT ? 2 Structure Membership Structure of NCAT PRESIDENT PRESIDENTIAL MEMBERS DEPUTY PRESIDENTS NCAT MEMBERS PRINCIPAL MEMBERS NON-PRESIDENTIAL SENIOR MEMBERS MEMBERS GENERAL MEMBERS 8 Administrative Structure of NCAT PRESIDENT EXECUTIVE DIRECTOR / RULES COMMITTEE PRINCIPAL REGISTRAR CORPORATE SERVICES REGISTRY SERVICES PRINCIPAL REGISTRY 9 Divisional Structure of NCAT APPEALS PANEL AD MINISTRATIVE & CONSUMER A ND OCCUPATIONAL GUARDIANSHIP EQUA L OPPORTUNITY COMMER CIAL Appointment of a gua rdian or a Hea lth Co mmerc ial Services Co mmunity S ervice s financial manager Pra ctitio ners Re venue Co mmerc ial Enduring guardianship Le ga l Services Licensing Home Building Powe r of attorne y and revocation Archite cts Priva cy Motor Ve hicles Medical or denta l treatment Ta xi Licences Freedom of Informa tio n (GIPA) Re sidentia l Parks Clinical Trials Other Occupational & Charity R eferees Re tirement Villages Disciplinary Matters Re vie w o f orders Equal Opportunity Soc ial Housing Lo cal Government Job and Fire arm Lice nsing Strata & Community Scheme s Pecuniary Interests /Discipline Working with Children Checks Tenancy Aboriginal Land Councils La nd matters Re tail Leases Dividing fences (NCAT Act, S chedule 3) (NCAT Act, S chedule 4) (NCAT Act, S chedule 5) (NCAT Act, S chedule 6) Divisional R egistry Divisional R egistry Divisional R egistry Divisional R egistry Division H ead Division H ead Division H ead Division H ead Dire ctor/Re gistrar Director/Registrar Dire ctor/Re gistrar Dire ctor/Re gistrar 10 NSW Trustee and Guardian – What is NCAT ? 3 Jurisdiction  Jurisdiction General Jurisdiction – Matters arising from enabling legislation. Administrative Review Jurisdiction – Reviews administrative decisions under Administrative Decisions Review Act 1997 (NSW). Appeal Jurisdiction Internal Appeal - Reviews decisions made by NCAT. External Appeal – Reviews decisions made by external decision maker (if enabling legislation permits). Enforcement Jurisdiction – Matters arising from breaches of NCAT rules/policies/procedures or NCAT’s civil penalty provisions. In some cases, NCAT will be the only Tribunal with jurisdiction to hear a matter. However, in other cases, NCAT may be preferred over Courts. 12 NSW Trustee and Guardian – What is NCAT ? 4 Guiding Principle  Guiding Principle NCAT’s ‘guiding principle’ is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. The Tribunal is to have regard to: The interests of both parties. Issues of proportionality (determining appropriate measures in given circumstances). Costs. Impact upon the Tribunal when case managing other Applications. NCAT’s ‘guiding principle’ is enshrined in section 36(d) of the NCAT Act. 14 NSW Trustee and Guardian – What is NCAT ? 5 General Procedures  General Procedures As NCAT is bound by the principles of procedural fairness and natural justice, it must take measures to ensure that parties have a reasonable opportunity to be heard. Emphasis on informality. No onus of proof – that is, no party has a responsibility to prove a case. No standard of proof (except civil penalty matters – balance of probabilities). Tribunal Members need only be ‘comfortably satisfied’ when determining matters. NCAT proceedings should be conducted having regard to “…equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.” - NCAT Act, section 38(4) 16 NSW Trustee and Guardian – What is NCAT ? 6 Open Justice  Open Justice NCAT hearings are generally open to the public, including media representatives. NCAT hearings may be conducted in private if “…it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason” : NCAT Act, section 49(2). NCAT hearings may be dispensed with, if the issues can be determined in the absence of the involved parties: NCAT Act, section 50(2)-(3). NCAT hearings are usually oral hearings. To facilitate active participation in NCAT hearings, parties/representatives/witnesses are encouraged to participate in person, by telephone or by video. 18 NSW Trustee and Guardian – What is NCAT ? 7 Parties  Parties The parties appearing in NCAT proceedings will vary depending on the type of application and matter: NCAT Rules, rules 27–30. NCAT has the power to join and remove parties during proceedings. A party whose interests are affected may be considered a necessary or proper party. WHAT IS A ‘PARTY’ ? Someone who has certain rights in legal proceedings, such as the right to receive a notice of hearing. 20 NSW Trustee and Guardian – What is NCAT ? 8 Representation  Representation Generally, a party is responsible for the carriage of their own case and is not entitled to be represented. However, a party may be represented, only if leave is granted by the Tribunal: NCAT Act, section 45. The Tribunal may impose conditions in relation to representation: NCAT Rules, rule 31. The Tribunal may revoke leave for representation in certain circumstances: NCAT Rules, rule 32(2). As NCAT provides an accessible and efficient means of resolving disputes in an environment which is not adversarial or confrontational, a large proportion of the parties who appear tend to be self-represented. 22 NSW Trustee and Guardian – What is NCAT ? 9 Evidence  Evidence Generally speaking, NCAT is not bound by the rules of evidence that are applied in courts, such as hearsay, relevance and opinion evidence (‘non-evidence rules proceedings’). However, the rules of evidence will apply in some NCAT proceedings (‘evidence rules proceedings’), such as where NCAT exercises enforcement jurisdiction or proceedings regarding imposition of a civil penalty: NCAT Act, sections 35, 38(2)-(3) and Schedule 5, clause 20. The Tribunal can prohibit or restrict the disclosure of evidence to another party. 24 NSW Trustee and Guardian – What is NCAT ? 10 Costs  Costs NCAT is generally a no costs jurisdiction – this means that each party to Tribunal proceedings is to pay their own costs: NCAT Act, section 60. NCAT may only award costs if it is satisfied that there are ‘special circumstances’, including that the subject NCAT proceedings were commenced without justification (that is, frivolous, vexatious, misconceived) or lacking in substance: NCAT Act, sections 60(2) - (3). When applying for costs: Outline why ‘special circumstances’ exist (if relevant). Provide evidence of incurred costs. The latest an application for costs can be made is 28 days after the reasons for an NCAT decision are published. 26 NSW Trustee and Guardian – What is NCAT ? 11 Spotlight: NCAT’s Guardianship Division  Functions of the NCAT Guardianship Division The NCAT Guardianship Division promotes the rights of people living with decision-making disabilities by: Facilitating substitute decision-making powers when considering applications for the appointment of guardians and financial managers. Reviewing guardianship orders and financial management orders. Providing consent for medical and dental treatment. Reviewing enduring powers of attorney and guardianship appointments. Approving participation in clinical trials. Section 4 of the Guardianship Act 1987 (NSW) requires the Guardianship Division to observe numerous principles, such as the views of people with a disability - their welfare/interests is the paramount consideration. ENABLING NSW LEGISLATION Guardianship Act 1987 (NSW) NSW Trustee and Guardian Act 2009 (NSW) Powers of Attorney Act 2003 (NSW) Children and Young Persons (Care and Protection) Act 1998 (NSW) 28  Situations where NCAT Financial Management Applications may be required An incapable person needs to engage in a legal transaction with a need for a legally authorised person to execute documents. Existing informal arrangements are unsatisfactory, as the person who carried them out is unable to do so. There are disputes within a family about the management of a family member’s finances and property. There is a risk of financial abuse, misappropriation or exploitation. A Financial Management Application can be initiated by the NSW Trustee or any person who has a genuine concern for the welfare of another person: Guardianship Act 1987 (NSW), section 25I(1) 29  Parties in an NCAT Financial Management Application The parties involved in a Financial Management Application include : The Applicant. The person about whom the Financial Management Application relates (‘the concerned person’). The concerned person’s spouse, carer and/or appointed attorney. The NSW Trustee. [See Guardianship Act 1987 (NSW), section 3F(5)] NSW Trustee receives a copy of all Financial Management Applications. No fees are payable to lodge a Financial Management Application. 30  NCAT’s Case Management of a Financial Management Application In preparation for the hearing of a Financial Management Application, an assigned NCAT Case Management Officer will: Contact the parties of the Financial Management Application and anyone else who may provide evidence. Coordinate the collection of relevant information/evidence. Obtain, where possible, the views of the person who the Application is about. Prepare an NCAT Hearing Report. After obtaining evidence/information, NCAT sets a date and time for the hearing and sends a notification of hearing to all parties. If an Applicant wishes to withdraw a Financial Management Application, the Tribunal’s permission is required. NCAT’s Guardianship Division prohibits representation unless leave is granted. 31  NCAT’s Hearing of a Financial Management Application - 1 When hearing a Financial Management Application, the Tribunal consists of: A legal member (lawyer of at least seven years standing); A member with a professional qualification (such as a medical practitioner, psychologist or social worker) with experience in assessing or treating people to whom the Guardianship Act 1987 (NSW) relates; and, A member with a community qualification who has experience with people to whom the Guardianship Act 1987 (NSW) relates. During NCAT hearings, Tribunal Members are not referred to as ‘Your Honour’ - rather they should be addressed as ‘Tribunal Member’. 32  NCAT’s Hearing of a Financial Management Application - 2 When considering a Financial Management Application, the Tribunal will examine the following issues: 1. Is the concerned person capable of managing their own financial affairs ? 2. Is there a need for another person to manage the concerned person’s financial affairs ? Is it in the best interests of the concerned person ? 3. Who should NCAT appoint as the financial manager ? A private financial manager; or, NSW Trustee and Guardian 33  NCAT’s Determination of a Financial Management Application In most Guardianship Division cases, NCAT will deliver its decision at the end of the hearing. In other cases, especially if complicated, NCAT’s decision will be ‘reserved’ and then delivered later. The types of Financial Management Orders which can be made by NCAT include: Order to dismiss a Financial Management Application. Plenary Financial Management Order – covers entire estate of the concerned person. Partial Financial Management Order – covers part of the estate of the concerned person. Interim Financial Management Order – a temporary order of up to six months. Reviewable Financial Management Order – the Order is required to be reassessed within a specified time. The NCAT Guardianship Division rarely makes cost orders in Financial Management hearings. The Tribunal provides parties with a written statement of reasons for decisions. It is an offence to publish or broadcast any identifying material about people involved in any Guardianship Division proceeding without the Tribunal’s consent. 34  Appeals from the NCAT Guardianship Division A party to proceedings may choose to appeal against certain decisions of the Tribunal to either the Internal Appeals Panel of NCAT or to the Supreme Court of NSW, but not to both at the same time: NCAT Act, Schedule 6, clause 12. An Appeal may be made on a question of law or any other ground provided that leave is granted. The general rule is that the Appeal must be lodged within 28 days from either the day on which the Appellant was notified of the decision being appealed against, or the day on which reasons for the decision were first given - whichever is later. The Internal Appeals Panel may affirm, vary, quash or set aside the decision under appeal. A decision of the Internal Appeals Panel may be appealed to the Supreme Court of NSW. Appeal to the NCAT Internal Appeals Panel does not operate as a stay of a decision of the Guardianship Division - unless the Tribunal orders otherwise: NCAT Act, section 43 and Schedule 6, clause 14(3) 35  Duration of an NCAT Financial Management Order An existing Financial Management Order made by NCAT remains in force until: The concerned person’s death; A review is undertaken by NCAT’s Guardianship Division which varies the existing Order; Revocation by the NCAT Guardianship Division; Revocation by the Supreme Court of NSW; Set aside by NCAT’s Internal Appeals Panel; NSW Trustee terminates its management; or, An Interim Financial Management Order expires without a further order. If a Financial Manager is appointed in NSW under an NCAT Financial Management Order, that Order can be registered as an Interstate Order in another Australian State/Territory if the concerned person intends to live in, or has property in, that other Australian State/Territory. 36 NSW Trustee and Guardian – What is NCAT ? 12 Case Study: Journey of a Financial Management Application through NCAT’s Guardianship Division Case Study: Journey of a Financial Management Application through NCAT’s Guardianship Division - 1 JACK’S STORY Gender: Male. Age: 24 years old. Accommodation – Lives with Karen (mother - widowed) in Surry Hills. No siblings. Jack’s History: Aged 20 - Negligently struck by a motorist while walking on a public footpath. Suffered a traumatic brain injury. Diagnosed with post-traumatic stress disorder, depression and anxiety. Received $2 million settlement payout. Receives Disability Support Pension from Centrelink. Jack’s Past Financial Mismanagement: Spent a significant portion of settlement funds on gambling, alcohol and illicit substances. Lent money to friends – not repaid. 38 Case Study: Journey of a Financial Management Application through NCAT’s Guardianship Division - 2 NCAT FINANCIAL MANAGEMENT APPLICATION Jack’s mother (Karen) has concerns about Jack’s financial mismanagement and believes her son is at risk of financial exploitation and abuse. Karen completes ‘Financial Management (FM) Application’ for the NCAT Guardianship Division. Karen lodges the FM Application with NCAT’s Guardianship Division and she also provides a copy of the FM Application to NSW Trustee and Guardian (NSWTG). NCAT assigns a Case Reference Number and allocates a NCAT Case Management Officer. NCAT sends ‘Acknowledgement Letter’ to parties confirming FM Application has been received. NCAT Case Management Officer triages FM Application as ‘Urgent’. NCAT sends ‘Notice of Listing’ to parties about the date/time/venue of hearing. NCAT requests NSWTG’s participation in hearing. NCAT prepares an ‘NCAT Hearing Report’ about the FM Application for the hearing and sends a copy to parties as well as the ‘Virtual Hearing Details’. 39 Case Study: Journey of a Financial Management Application through NCAT’s Guardianship Division - 3 NCAT HEARING Parties: Karen (Applicant) – Appears in person. Jack (Concerned Person) – Appears by video. NSWTG Representative (Statutory Party) – Appears by telephone. Jack’s Doctor (Witness) – Appears by telephone. Tribunal Members: Senior Member (Legal) Senior Member (Professional) General Member (Community) Commencement of Hearing: Senior Member (Legal) outlines purpose of the hearing and questions to be considered for the FM Application. 40 Case Study: Journey of a Financial Management Application through NCAT’s Guardianship Division - 4 NCAT HEARING Question 1: Is Jack incapable of managing his financial affairs ? Karen outlines her reasons for making FM Application for Jack. Jack’s Doctor gives evidence as to Jack’s medical conditions/disabilities. Tribunal Members review Jack’s financial position. Finding: Tribunal is satisfied that Jack is incapable of managing his financial affairs. 41 Case Study: Journey of a Financial Management Application through NCAT’s Guardianship Division - 5 NCAT HEARING Question 2: Is there a need for another person to manage Jack’s financial affairs and is it in Jack’s best interests for a Financial Management Order to be made ? No Power of Attorney or informal arrangement exists to assist Jack with managing his finances. NSWTG Representative explained the scope of financial management services (for direct and privately managed customers) which can be delivered by NSWTG. Jack does not currently oppose a Financial Management Order. However, he wishes to acquire financial skills to eventually manage all of his own finances in the future. Finding: Tribunal is satisfied that Jack is unable to protect his own welfare and interests without the assistance of a financial manager. The Tribunal decide to make a Financial Management Order for Jack. 42  Case Study: Journey of a Financial Management Application through NCAT’s Guardianship Division - 6 NCAT HEARING Question 3: Who should be appointed as Jack’s financial manager ? Karen is unwilling to be appointed as Jack’s financial manager, due to the size of Jack’s estate and her minimal financial management skills. There is no other individual willing to take on the role of financial manager. Finding: Tribunal commits the management of Jack’s estate to NSWTG. NSW Trustee & Guardian - What is NCAT ? 43  Case Study: Journey of a Financial Management Application through NCAT’s Guardianship Division - 7 NCAT HEARING NCAT’s FINANCIAL MANAGEMENT ORDER FOR JACK At the conclusion of the Hearing, the Tribunal makes the following Financial Management Order: The estate of Jack is subject to management under the NSW Trustee and Guardian Act 2009. The management of Jack’s estate is committed to NSWTG. The Order is to be reviewed by the Tribunal within 2 years. The following specified part of Jack’s estate is excluded: All Centrelink income. Recommendation: NSWTG to take urgent action to protect Jack’s estate from depletion. After the hearing, NCAT sends a copy of the ‘Financial Management Order’ to all parties and when available, the ‘Written Statement of Reasons’ for the decision are also provided. 44 NSW Trustee & Guardian - What is NCAT ? NSW Trustee and Guardian – What is NCAT ? Conclusion NSW Trustee and Guardian – What is NCAT ? Contact Details Contact Details for NCAT Contact Details for NCAT Website https://www.ncat.nsw.gov.au Telephone 1300 006 228 Contact Details for NCAT’s Guardianship Division Registry Level 6, John Maddison Tower Address 86-90 Goulburn Street SYDNEY NSW 2000 FOR USEFUL RESOURCES Visit the ‘Practice & Strategy SharePoint’ page Email [email protected] on ‘NSWTG Intranet’ and click on the link ’Everything you need to know about NCAT’ 47 Contact Details for the NCAT Liaison Officer (NSW Trustee) Name Jamal Maroon Position Code QO3 Telephone (02) 9178-8095 Email [email protected] 48 NSW Trustee and Guardian – What is NCAT ? Questions Thank you