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[2011] NSWADTAP 18
appellant. The decision of the Guardianship Tribunal to dismiss AAD's application for a financial management order is set aside. The matter is remitted to be heard and decided again with the hearing of...
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A daughter worried that her elderly mother no longer had the mental ability to change her power of attorney and will. The first tribunal ignored a detailed doctor's report showing serious dementia and lack of capacity. The appeal tribunal ruled that a tribunal must mention important conflicting evidence in its written reasons. Because the doctor's evidence was central and contradictory, the original decision was overturned and the case sent back for a fresh hearing at which the doctor must give evidence.
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2,031 words · generated 24/04/2026
AAD, one of two daughters of AAE, became concerned when her mother revoked an enduring power of attorney granted jointly and severally to both daughters in 2003 and instead appointed her long-term accountant AAG by a new instrument executed in July 2010. AAE also executed a new will at the same time. AAD formed the view that AAE lacked the cognitive capacity to understand these transactions, relying in part on medical evidence that AAE had become disoriented and forgetful while overseas in 2009, had been struck by a car after misreading traffic lights in October 2009, and had scored only 15/30 on a mini-mental state examination.
On 17 August 2010 AAD applied to the Guardianship Tribunal for a financial management order under the Guardianship Act 1987, proposing herself as manager. The Tribunal heard evidence from AAE, who said she wanted everything to remain as it was, felt intimidated by AAD, trusted AAG because he already managed her affairs, and wished to leave her estate equally to both daughters. The solicitor Mr Edmunds, who had acted for AAE on the 2010 documents, gave evidence that he had explained the nature and effect of the revocation, new power of attorney and will, and that in his opinion AAE understood them and had capacity.
Dr Lucas, a clinical neuropsychologist, assessed AAE on 3 August 2010 (approximately two weeks after the transactions) and provided reports dated 10 August 2010 and 7 September 2010. Those reports recorded a history of cognitive decline, diagnosed dementia (most likely Alzheimer's disease), identified severe deficits in expressive language, verbal memory and frontal executive function, and concluded that AAE was incapable of making high-level decisions about her financial situation or legal matters such as powers of attorney. The Tribunal referred to Dr Lucas's evidence when it decided to make a guardianship order, finding that AAE had a disability affecting important life decisions. However, when it came to the financial management application the Tribunal made an implied finding that AAE had capacity in July 2010, relying solely on the evidence of AAE and Mr Edmunds, and concluded it was not in AAE's best interests to make a financial management order.
AAD appealed to the Administrative Decisions Tribunal Appeal Panel. The Panel (Hennessy DP, Leal JM and Field NJM) heard the matter on 14 April 2011 and delivered judgment on 21 April 2011. The appeal succeeded on a question of law: the Guardianship Tribunal had failed to give adequate reasons because it omitted any reference to Dr Lucas's critical and inconsistent evidence when addressing capacity. The Panel set aside the dismissal of the financial management application and remitted the matter to be heard and decided again, directing that further evidence be taken from Dr Lucas, either in person or by telephone.
The Appeal Panel grounded its decision squarely in the common law obligation to give adequate reasons, an obligation that binds tribunals as well as courts (Absolon v NSW TAFE [1999] NSWCA 311 at [66]). It cited the well-known passages from Meagher JA in Beale v GIO (1997) 48 NSWLR 430 and Samuels JA in Mifsud v Campbell (1991) 21 NSWLR 725. Those authorities establish that while a decision-maker need not refer to every piece of evidence, a failure to mention evidence that is "important or critical" and inconsistent with the findings made permits an appellate court to infer that the evidence was overlooked. The Panel noted at [17] that the Tribunal had made no express finding on capacity but that such a finding was implicit in its acceptance of the evidence of AAE and Mr Edmunds and its conclusion on best interests. Dr Lucas's reports were before the Tribunal, had been obtained very shortly after the July 2010 transactions, and directly contradicted the lay evidence on the very issue the Tribunal was required to resolve.
The Panel emphasised at [20] that although Dr Lucas's opinion was expressed a few weeks after the events, it remained "critical and relevant to her capacity at the time". The Tribunal's failure to refer to that evidence when dealing with the financial management application, while referring to it in the guardianship context, rendered the reasons inadequate. At [21] the Panel went further: the evidence was so critical that "arrangements should have been made for Dr Lucas to give oral evidence". Because the omitted evidence went to the heart of the best-interests test under Guardianship Act 1987 s 25G, the Panel concluded at [22] that the decision must be set aside and remitted under ADT Act s 118C(2)(b) in order for justice to be both done and seen to be done. The Panel declined to grant leave to appeal on merits grounds once it had found an error of law and ordered a rehearing.
Prior to this decision the law on adequacy of reasons was settled by Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, Pettitt v Dunkley [1971] 1 NSWLR 376 and the Court of Appeal authorities cited by the Panel. Those cases established that reasons must disclose the basis for the decision, enable appellate review, and address critical conflicting evidence. However, there had been some uncertainty about the precise content of the obligation when applied to the Guardianship Tribunal, which is not subject to the detailed statutory obligation imposed on the ADT itself by ADT Act s 89(5). The Panel clarified at [13] that the common law duty applies fully to the Guardianship Tribunal by virtue of Guardianship Act s 68(1B), which requires "formal written reasons", and that want of form does not invalidate a decision but inadequacy of content can.
After the decision, the law is clearer that a Guardianship Tribunal (and now NCAT) must, when capacity is in issue, expressly grapple with any neuropsychological or medical evidence that directly contradicts the lay or solicitor evidence on which it proposes to rely. The obligation extends to making practical arrangements for that expert to give oral evidence where the conflict is central. The decision also reinforces that an implied finding on capacity, while permissible, must still be supported by reasons that deal with the whole of the critical evidence. The Panel's order that Dr Lucas give evidence on remitter has become a standard remedial response in similar cases.
Paragraph [14] cites Meagher JA in Beale: "where certain evidence is important or critical to the proper determination of the matter and it is not referred to by the trial judge, an appellate court may infer that the trial judge overlooked the evidence or failed to give consideration to it." In plain English: if the judge or tribunal ignores the really important conflicting evidence, the appeal court is entitled to think the decision-maker simply missed it.
Paragraph [15] quotes Samuels JA in Mifsud v Campbell: ignoring critical contrary evidence "may promote a sense of grievance in the adversary and create a litigant who is not only 'disappointed' but 'disturbed' … it tends to deny both the fact and the appearance of justice having been done." Plain English: leaving out the key contradictory medical report makes the losing party feel the process was unfair, which undermines public confidence in the tribunal.
Paragraph [20]: "Even though Dr Lucas' opinion was given a few weeks after the event, it was nevertheless critical and relevant to her capacity at the time. The Tribunal's implied finding that AAE had capacity at that time was a material finding which supported the Tribunal's ultimate finding that it was not in AAE's best interests to make a financial management order." Plain English: the doctor's report was close enough in time to matter, and the tribunal's decision not to appoint a financial manager rested on the unstated belief that the mother still had capacity; without mentioning the doctor's contrary view the reasons could not stand.
Paragraph [21]: "The Guardianship Tribunal's reasons were inadequate because it failed to refer to this evidence which was directly inconsistent with the evidence given by Mr Edmunds. That evidence was so critical that arrangements should have been made for Dr Lucas to give oral evidence, either in person or, alternatively, by telephone." Plain English: the tribunal had to mention the doctor's report because it directly contradicted the solicitor; the conflict was so serious the doctor should have been asked to give evidence live or by phone so the tribunal could resolve it properly.
This precedent is triggered whenever a Guardianship Tribunal (or NCAT exercising the same jurisdiction) determines an application for a financial management order under Guardianship Act 1987 s 25G and there exists expert neuropsychological or medical evidence that directly contradicts lay or solicitor evidence on the subject person's capacity at the time of executing or revoking an enduring power of attorney. The omitted evidence must be "critical" in the sense that it bears directly on the best-interests limb of s 25G and on the related question whether the current attorney can be trusted or whether the person can manage their own affairs.
The pattern also arises where the tribunal refers to the conflicting evidence for one purpose (for example, making a guardianship order) but fails to mention it when deciding the financial management application. The timing of the expert assessment is relevant but not decisive; an assessment obtained within weeks of the transaction will ordinarily be regarded as material. The precedent applies with equal force where the tribunal makes only an implied finding on capacity rather than an express one. It does not apply to peripheral or "hopeless" evidence (Bar-Morecai v Rotman [2000] NSWCA 123 at [211]-[212]).
The Appeal Panel's reasoning has been treated as a straightforward application of the established line of Court of Appeal authority and has itself been followed in subsequent decisions concerning the adequacy of reasons in guardianship and NCAT matters. Later courts have cited the decision for the proposition that the common law duty to refer to critical inconsistent evidence applies with full force to the Guardianship Division even though the Guardianship Act does not mirror the detailed language of ADT Act s 89(5). The direction that the matter be remitted with a requirement that the expert give oral evidence has been regarded as an appropriate remedial order where the conflict on capacity is central. The decision is routinely referred to in appeals where a tribunal has accepted solicitor evidence of capacity while sidelining contemporaneous neuropsychological reports.
The judgment leaves open precisely how a tribunal should weigh a neuropsychological report prepared after the relevant transaction against contemporaneous solicitor observations. The Panel accepted that Dr Lucas's report remained relevant but did not prescribe a hierarchy or a formula for reconciliation. It is also unclear whether the obligation to arrange oral evidence from the expert is absolute or arises only where the written reports contain an obvious and direct conflict on capacity. The decision does not address the position where the expert is unavailable or where cross-examination would cause distress to the subject person. Finally, the precise boundary between "critical" evidence that must be referred to and "peripheral" evidence that need not be mentioned remains a matter of evaluative judgment to be worked out in future cases.
Most practitioners assume that if the tribunal mentions the existence of a medical report somewhere in its reasons it has discharged its duty. This decision demonstrates the opposite: the report must be engaged with on the specific issue that is determinative. Another gotcha is the belief that a solicitor's file note or attendance evidence will always trump a later neuropsychological assessment; the Panel's insistence that the conflict be resolved orally shows that is not so. Finally, many lawyers forget that an implied finding on capacity still requires adequate reasons; the Panel's analysis at [17] and [20] makes clear that silence on critical contradictory evidence vitiates even an implicit conclusion. These nuances explain why experienced guardianship advocates now routinely ensure that any conflicting expert evidence is squarely addressed in both written submissions and, where necessary, by arranging for the expert to be available to give evidence.
Introduction 1AAD has appealed against a decision of the Guardianship Tribunal dismissing her application for a financial management order to be made in relation to the estate of her mother, AAE. 2AAE has two daughters AAD and AAF. She lives with AAF. In 2003 she appointed each of her daughters (jointly and severally) as her enduring power of attorney. On 16 July 2010, AAE revoked the power of attorney and appointed her accountant, AAG, as her enduring power of attorney. Mr Edmunds, solicitor, acted for AAE in relation to these transactions and gave evidence in the Guardianship Tribunal proceedings. He also acted for the 2 nd , 3 rd and 4 th respondents in these proceedings expressing the view that there was no breach of professional conduct in him doing so as he was not required to give evidence material to the determination before the Appeal Panel. 3On 17 August 2010 AAD applied to the Guardianship Tribunal for a financial management order in relation to her mother and proposed that she be appointed as the financial manager. She says she made that application because of concerns about the current management of her mother's financial affairs and the fact that she had revoked the earlier appointments and made a new will in July 2010 when there was medical evidence that she lacked the capacity to do so. 4AAD has appealed against the Guardianship Tribunal's decisions on a question of law. In addition, leave was sought for the appeal to proceed on other grounds: Administrative Decisions Tribunal Act 1997 ( ADT Act ), s 118B(1).
Legislative framework and Tribunal's decision 5If the Tribunal had made a financial management order, that order would have suspended the operation of the power of attorney AAE made in July 2010: Powers of Attorney Act 2003, s 50(2). AAD did not apply separately for a review of the making of the power of attorney: Powers of Attorney Act , s 36. Nevertheless, the Tribunal acknowledged that the question of whether AAE had the capacity to revoke the power of attorney and execute a new power was relevant to the question of whether a financial management order should be made. 6Before making a financial management order, the Guardianship Tribunal must be satisfied of three things: (1)the person is not capable of managing those affairs, and (2)there is a need for another person to manage those affairs on the person's behalf, and (3)it is in the person's best interests that the order be made: Guardianship Act 987, s 25G. 7The Tribunal decided in relation to the first issue that AAE was not capable of managing her affairs. No ground of appeal challenged that finding. The Tribunal also impliedly decided that there was a need for another person to manage those affairs. No ground of appeal challenged that finding. 8It was the third issue that was the focus of the Tribunal's consideration, that is whether it was in AAE's best interests that the order be made. A question which was relevant to that issue was whether AAE had the capacity to revoke the powers of attorney and execute a new power. The Tribunal's conclusion on that issue was that: . . . there is evidence from AAE and Mr Edmunds that AAE understood the nature and effects of the power of attorney at the time she executed the instrument. She remains of the view that [AAG] should be her attorney. 9The Guardianship Tribunal summarised AAE's evidence on this issue as follows: AAE told the Tribunal that she wanted everything to stay as it was. She was concerned because she believed [AAD] wanted to sell her house and put her into a nursing home. She felt intimidated and consulted with [a friend] who referred her to John Edmunds, a solicitor. AAE told the Tribunal she went to see Mr Edmunds because she wanted to change her will . . .[AAG] had been her accountant for many years and she trusted him. She wanted him to be the power of attorney as he already managed her affairs. AAE wanted to change her will as she had signed a will while she was in hospital in October 2009, which she regretted. She wanted to leave everything equally to her daughters. (Words in brackets substituted for names of people concerned.) 10Mr Edmunds gave evidence to the Guardianship Tribunal of the circumstances in which AAE instructed him. He told the Tribunal that he explained the nature and effect of all the documents to her and formed the view that she understood the documents and had capacity to make the revocations, appointments and a new will.
Question of law? 11AAD submitted that the Tribunal had made an error of law when it ignored the expert evidence from Dr Lucas, a clinical neuropsychological, about AAE's capacity to execute a new power of attorney in July 2010. 12AAD was not legally represented and we understood this ground of appeal to be that the Tribunal had given inadequate reasons for its decision: in particular, that the Tribunal had failed to comply with one of the elements of a statement of reasons, that is referring to relevant evidence. 13Subject to some exceptions which are not applicable to these proceedings, the Guardianship Tribunal has a duty to provide each party with "formal written reasons" for its decisions: Guardianship Act , s 68(1B). However, no decision of the Tribunal will be invalid because of any informality or want of form: s 68(2). Some tribunals, including the Administrative Decisions Tribunal, are bound in their reasons for decision to set out "the findings on material questions of fact, referring to the evidence or other material on which those findings were based": ADT Act , s 89(5)(a). There is no equivalent provision in the Guardianship Act but common law principles are applicable. At common law, there is a judicial duty to give adequate reasons: Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 269-70; Pettitt v Dunkley [1971] 1 NSWLR 376; Public Service Board of New South Wales v Osmond [1986] HCA 7; (1986) 159 CLR 656. That duty applies to tribunals as well as courts: Absolon v NSW TAFE [1999] NSWCA 311 at [66]. 14In Beale v GIO (1997) 48 NSWLR 430 Meagher JA expressed the duty to refer to relevant evidence when giving reasons as follows: First, a judge should refer to relevant evidence. There is no need to refer to the relevant evidence in detail, especially in circumstances where it is clear that the evidence has been considered. However, where certain evidence is important or critical to the proper determination of the matter and it is not referred to by the trial judge, an appellate court may infer that the trial judge overlooked the evidence or failed to give consideration to it: North Sydney Council v Ligon 302 Pty Ltd (1995) 87 LGERA 435. Where conflicting evidence of a significant nature is given, the existence of both sets of evidence should be referred to. 15This principle was expressed in a slightly different way by Samuels JA in Mifsud v Campbell (1991) 21 NSWLR 725 at 728: [F]or a judge to ignore evidence critical to an issue in a case and contrary to an assertion of fact made by one party and accepted by the judge . . . may promote a sense of grievance in the adversary and create a litigant who is not only ' disappointed' but 'disturbed' . . it tends to deny both the fact and the appearance of justice having been done. 16This does not mean that decision-makers are obliged to discuss every hopeless or peripheral point: Bar-Morecai v Rotman [2000] NSWCA 123 at [211] to [212]. Nor does it require that a decision maker detail the way in which he or she has reasoned step by step to the conclusion: Absolon v NSW TAFE [1999] NSWCA 311 at [66]. 17The Tribunal did not make an express finding that AAE had the capacity to execute a new power of attorney in July 2010. However, it is implicit from its reference to the evidence of AAE and Mr Edmunds quoted above at [8], that it formed that view. That view was formed without any reference to critical inconsistent medical evidence that she did not have that capacity. 18Dr Lucas examined AAE on 3 August 2010, just over two weeks after she had revoked the previous power of attorney. Dr Lucas furnished reports dated 10 August 2010 and 7 September 2010 which the Tribunal had before it. (Dr Lucas did not give oral evidence.) In those reports, Dr Lucas related a history of AAE being disoriented and forgetful when holidaying in Greece in May 2009 and of being hit by a car while a pedestrian, in October 2009 after misinterpreting traffic lights. She achieved a score of 15/30 in a MMSE (mini-mental state examination). In summary, Dr Lucas said that AAE, "demonstrates significant and fairly global cognitive deficits, with particularly severe problems relating to expressive language, verbal memory encoding and retention, and frontal executive functions." She considered that AAE had dementia with the most likely diagnosis being Alzheimer's disease. 19After AAD was told that her mother had revoked the power of attorney and executed a new power and a new will, she asked Dr Lucas to write a second report. In that report, Dr Lucas expressed the view that, "AAE is incapable of making any high-level decisions about her financial situation or the legal matters such as power of attorney and any changes to such matters should not take place until after the guardianship and financial management hearing on 14 October 2010." 20The Tribunal did refer to Dr Lucas' evidence when considering whether to make a guardianship order. It concluded, partially on the basis of that evidence, that AAE had a disability which impacts on her ability to make important life decisions. However, the Tribunal failed to refer to her evidence when impliedly making a finding that that AAE had the capacity to execute a new power of attorney in July 2010. Even though Dr Lucas' opinion was given a few weeks after the event, it was nevertheless critical and relevant to her capacity at the time. The Tribunal's implied finding that AAE had capacity at that time was a material finding which supported the Tribunal's ultimate finding that it was not in AAE's best interests to make a financial management order. 21The Guardianship Tribunal's reasons were inadequate because it failed to refer to this evidence which was directly inconsistent with the evidence given by Mr Edmunds. That evidence was so critical that arrangements should have been made for Dr Lucas to give oral evidence, either in person or, alternatively, by telephone. 22A failure to give adequate, reasons does not necessarily mean that the decision should be set aside: Absolon v NSW TAFE [1999] NSWCA 311 at [67]. However, in this case, the evidence of Dr Lucas was so relevant and so critical to the issue of capacity, that in order for justice to be both done and seen to be done, the decision should be set aside and remitted to be heard and decided again: ADT Act , s 118C(2)(b).
Appeal on merits 23As well as appealing on a question of the law, AAD sought leave to appeal against the merits of some of the Tribunal's findings. AAD pointed to evidence which could be seen as inconsistent with evidence that the Tribunal appeared to accept. AAD also said that the Tribunal did not put sufficient weight on certain evidence that was in her favour. 24The ADT Act does not contain any guidance as to the factors that should be taken into account in determining whether to grant leave to appeal against the merits (or factual findings). The Supreme Court has provided some guidance on this question in the cases of K v K [2000] NSWSC 1052; S v S [2001] NSWSC 146 and Re R [2000] NSWSC 886 (17 August 2000). Those cases interpret s 67 of the Guardianship Act which is the equivalent provision to s 118B of the ADT Act in relation to appeals from Tribunal decisions to the Supreme Court. In K v K , Young J observed at [10] that 'it has never been clearly decided what the circumstances are that should lead the Court to grant leave to appeal under s 67, but went on to make a number of observations on this point: see para [10]-[15]. 25In this case we have decided that the Tribunal made an error of law and have remitted the matter to be heard and decided again. Since the matter is to be heard and decided again, AAD has the opportunity to submit that certain evidence should be given more weight than the Tribunal previously gave it. In those circumstances, leave is refused for the appeal to extend to any grounds other than a question of law.
Order (4)The decision of the Guardianship Tribunal to dismiss AAD's application for a financial management order is set aside. (5)The matter is remitted to be heard and decided again with the hearing of further evidence from Dr Lucas.
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 06 June 2011
AAD
NSW Trustee and Guardian, AAE, AAF, AAG
(1986) 159 CLR 656
(1997) 48 NSWLR 430
(1991) 21 NSWLR 725
(1987) 10 NSWLR 247
(1995) 87 LGERA 435
The decision of the Guardianship Tribunal to dismiss AAD's application for a financial management order is set aside. The matter is remitted to be heard and decided again with the hearing of further evidence from Dr Lucas.