AW v WW

Nature of Appeal

1. The appeal was governed by clause 14(1)(b) of schedule 6, part 6 to the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act): 14(1) A party to proceedings in which an appealable Division decision is made may appeal to the Supreme Court against the decision - (a) in the case of an interlocutory decision of the Tribunal - with the leave of the Court, or (b) in the case of any other kind of decision - as of right on any question of law, or with the leave of the Court, on any other grounds.
2. In AW v WW [2023] NSWSC 724, Lindsay J dismissed AW's application in these proceedings for leave to appeal on grounds other than a question of law.
3. It was submitted for AW that a question of law was raised by these paragraphs of AW's amended summons (being the only paragraphs that were pressed at the hearing of the appeal): Contrary to that expressed at D[154], there was evidence to support a finding that there was a need for a guardian to make medical decisions for Mrs W, particularly in circumstances where: the evidence of Professor Rosenfeld was to the effect that Mrs W had significant medical problems which would require on-going care; the contemporaneous medical records recorded: episodes of delusions and dementia, such that Quetiapine (an antipsychotic, mind affecting medication) was prescribed; other evidence of cognitive impairment, manifested by confusion and a sense of longstanding persecutions; evidence - including medical records - indicated that Mrs W was unable to comprehend advice from social workers and the seriousness of her medical condition; contrary to the Tribunal's findings at D [150(d)] and [152], there was no evidence that Mrs W was socially active and was accessing services and the evidence was the effect that Mrs W was reliant on Ms B, who could not provide all the necessary assistance. 1A Whilst the Tribunal found (at D [142]) that the defendant did not suffer from dementia that resulted in a cognitive defect which prevented her from managing her person, the Tribunal failed to make findings about whether the defendant suffered from conditions other than anxiety and depression - despite there being evidence that showed she suffered serious problems caused by cognitive impairment. 1B The Tribunal also failed to make any findings about the defendant's medical condition and her capacity to make important lifestyle decisions and to manage her own financial affairs by reference to the evidence of the plaintiff, MW and other lay witnesses- in circumstances where that evidence indicated that the defendant suffered from medical problems which impacted on her capacity. .… 1E In the premises, a question of law arises as to whether the Tribunal, in determining that there was no current [this word was added in the course of argument] need for a guardian to make medical decisions for Mrs W, or for there to be a financial manager: a. failed to give proper and realistic consideration to the issue of whether the defendant suffered from medical problems which impacted on her capacity; b. failed to take into account considerations relevant to determining the defendant's capacity.

The Decision

1. The hearing before the Tribunal extended over two days. AW and Mrs W were each represented by senior counsel. The Tribunal received evidence from eleven witnesses, including AW and Mrs W, other lay witnesses, and four experts with expertise variously in geriatrics, neuropsychology and psychology. There was cross-examination.
2. The Tribunal also had extensive documentary evidence before it. The material before the Tribunal was tendered in the appeal hearing before me and comprised 10 volumes totalling 3100 pages.
3. The Decision is 89 pages long in 206 paragraphs. It is, on its face, detailed and thorough. It includes: 11 There were voluminous documents provided in evidence in these matters and substantial oral evidence. These Reasons for Decision do not seek to summarise the evidence, but to explain the reasons for the for the Tribunal's decision with reference to relevant evidence.
4. After setting out the evidence and submissions at length, the Tribunal turned to the application for guardianship and identified the questions which the Tribunal had to decide: 134 The questions which had to be decided by the Tribunal were: • Is Mrs W someone for whom the Tribunal could make an order because she has a disability which prevents her from being able to make important life decisions? • Should the Tribunal make a guardianship order and if so, what order should be made? • Who should be the guardian? • How long should the order last?
5. There is no suggestion that the Tribunal addressed or asked itself the wrong questions. The primary focus of the Tribunal was, with respect correctly, whether Mrs W was "a person in need of a guardian" for the purposes of GA s 14, being "a person who because of a disability is totally or partially incapable of managing his or her person" (GA s 3(1)).
6. The Decision then identifies that the Tribunal had been provided with conflicting evidence regarding whether Mrs W could be considered to have dementia. Having considered that evidence, the Tribunal concluded (at [141]): "we are not able to be satisfied that [Mrs W] has dementia that results in a cognitive deficit that prevents her managing her person".
7. However, the Tribunal did go on to find, by reference to other medical and psychiatric evidence, that Mrs W had anxiety and depression. This lead to these findings: 143 In our view, lifestyle decisions such as those about accommodation and medical treatment are likely to generate stress and anxiety and when faced with those decisions, Mrs Ws' diagnosed conditions of anxiety and depression are likely to impede her ability to manage those aspects of her lifestyle such that she would need the support and assistance of others. 144 Having reached the conclusion noted in the preceding paragraph, we were satisfied that Mrs W is a person for whom the Tribunal could make a guardianship order.
8. Turning to that issue, the Tribunal noted that Mrs W had appointed KB and KS as her enduring guardians, in which capacity they were appointed to make decisions where necessary about her accommodation, access to services, health care and medical/dental treatment.
9. The Tribunal found: "150 ….. (2) We can see no current need to appoint a guardian to make an accommodation decision for Mrs W. If one were required, she has enduring guardians who can make that decision. (3) As noted above, we are satisfied that Mrs W is accessing services to assist her at her retirement village and in our view there is no evidence that the enduring guardians have failed to make necessary decisions about Mrs Ws' access to services."
10. The Tribunal went on to express the view that there was no evidence of a current need for a guardian to make medical decisions for Mrs W or that if such a need arose, the enduring guardians would fail to act in her best interests in relation to such matters.
11. The Decision reveals that the Tribunal then went on to consider expressly AW's submission that her solicitor, KS, was "in a position to exert undue influence on her and that where there is a solicitor/client relationship, undue influence needs to be disproved". The Decision discloses a reasoned basis for the Tribunal's rejection of that submission.
12. In relation to the guardianship application, the Tribunal concluded 170 Having considered Mrs W's circumstances and consistently with the matters canvassed in the preceding paragraphs of these Reasons, it is our view that: (1) There is no evidence that the enduring guardians have acted contrary to Mrs W's best interests or welfare. (2) There are no decisions to be made for Mrs W that could not be made by the enduring guardians. (3) We are not satisfied that the evidence supports a conclusion that the current enduring guardians have failed or would fail to act in the best interests of Mrs W in respect of her future needs. (4) There are no decisions that require the appointment of a guardian by this Tribunal. (5) The principles set out in s 4 of the Guardianship Act require that as far as possible, Mrs W's freedom of decision and freedom of action should be restricted as little as possible, that she be encouraged, as far as possible, to live a normal life in the community and to be self-reliant in matters relating to her personal, domestic and financial affairs. In our view, those principles are fulfilled under the current arrangements whereby her decisions have been endorsed by her enduring guardians who are available to intervene if and when needed. (6) The s 4 principles also require that Mrs W's views be taken into account. We are satisfied that the enduring guardians are complying with this requirement. We are also satisfied that Mrs W' views are expressed in the enduring guardianship appointment and that she does not support the making of a guardianship order. (7) It is of great sadness to Mrs W that her family relationships have been severed as a result of the circumstances including the protracted legal disputes with her son and daughter in law. She has indicated that she would seek to repair that relationship. In our view there is no need to appoint a guardian to effect improved family relationships. 171 It is our conclusion that having regard to Mrs W's best interests and welfare and taking into account her views, and the s 4 principles there is no need for this Tribunal to appoint a guardian. Accordingly we dismissed the application for guardianship.
13. The Tribunal followed a similarly structured approach in considering AW's financial management application, by reference to GA s 25G: 25G Grounds for making financial management order The Tribunal may make a financial management order in respect of a person only if the Tribunal has considered the person's capability to manage his or her own affairs and is 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.
14. The Tribunal noted: 172 The questions to be considered by the Tribunal are: • Is Mrs W incapable of managing her affairs? • Is there a need for another person to manage Mrs W's affairs and is it in her best interests for a financial management order to be made? • If so, who should be appointed financial manager?
15. After considering the evidence, the Tribunal concluded: 184 The conclusion reached by Dr van den Berg is consistent with the view of the legal practitioners instructed by Mrs W in recent years and is to the effect that there was no disability evidenced upon testing that would prevent Mrs W from managing her affairs in a general sense. 185 In our view, as noted in the section of these Reasons dealing with guardianship, Mrs W's anxiety and depression could affect her ability to access, evaluate and utilise information from time to time where decisions are to be made about personal lifestyle matters such as accommodation and medical treatment. However we are satisfied on the evidence that Mrs W has successfully confronted a number of highly stressful financial and legal matters.
16. The Decision goes on to record consideration of the allegation that KS had taken financial advantage of Mrs W. The Tribunal gave several reasons for rejecting that submission, including in relation to allegations about professional charges levied by KS. The Tribunal concluded: 193 Having considered the matters canvassed in the preceding matters [sic] we are satisfied that Mrs W does not lack the capacity to manage her affairs as those affairs are now constituted. Accordingly we are not satisfied that we should make a financial management order.
17. Having reached that conclusion, while it was not necessary for the Tribunal to go on to consider the question of whether there was a need for a financial management order, the Tribunal did so, in its words "for greater certainty". As to this, the Tribunal concluded: 197 In our view there is no need for make a financial management order because Mrs Ws' affairs are adequately managed under the structure described. On her evidence she continues to review her accounts as they come in and where she chooses to do so, so instructs [JM] to process payments on her behalf.
18. Similarly, while it was not necessary to do so, again "for greater certainty" the Tribunal considered whether a financial management order would be in Mrs W's best interests. The Tribunal concluded : 202 In our view, Mrs W has instructed her accountant to arrange her affairs so that she receives an income during her lifetime and so that her grandsons benefit upon her death. In our view there is no evidence that this arrangement is not in her best interests. We are not satisfied that it is in her best interests to make a financial management order that would provide for a manager to intervene in respect of the trust arrangement … 204 We are also of the view that as an 88 years old woman who has undergone a number of serious medical procedures over the past 12 months and who has diagnosed conditions of anxiety and depression, ongoing intervention in her affairs, and possible further litigation is not in her best interests. She has managed to arrange her affairs in a manner that is in accordance with her wishes and that provides for her needs, and in our view it is not in her best interests that those arrangements be the subject of further legal processes.

AW's submissions

1. Mr Wood SC encapsulated his client's case in this submission (Tcpt, 16 October 2023, p 6(50) - p 7(21)): WOOD: Your Honour, the narrow basis upon which this appeal is pressed is essentially a failure by the tribunal to consider the conditions of delirium, delusion, paranoia and confusion. That is to say, something affecting cognitive function but not amounting to dementia. I should pause to put that in context. Your Honour may recall, from hearing various protective and family provision matters, that dementia is not a binary thing. A person may suffer from dementia but have particularly good days, in which they are quite lucid, and they may have very mild or early onset dementia, in which there would be odd occasions where they are noticeably impaired but those occasions may be rare, particularly if, say, the condition is in its early phases. The vice, we say, in the approach of the tribunal below is to approach the question of dementia or not dementia as if it was a binary matter, and in doing so failed to address a body of evidence that suggested that Mrs W suffered from these other conditions. The importance of that to the result is that those conditions falling short of dementia were still capable of making Mrs W vulnerable to the people that she trusted. In that connection, it is of concern to her son that a professional person with the capacity to charge professional fees is assisting her and she reposes, we say, too much trust in [JS].
2. Mr Wood SC eschewed reliance on 'Wednesbury unreasonableness' or any other basis that went so far as to say that there had been an actual or constructive failure on the part of the Tribunal to exercise its statutory function. In exploring the submission being put on behalf of AW, this exchange took place between bar and bench (Tcpt, 16 October 2023, p 18(3)-(26)) (emphasis added): WOOD: I am saying, as a separate submission, that it is wider than what your Honour has put because if the decision‑maker turns their mind to point C, the question, turn their mind to it but ignored a folder of evidence that was central to the determination of point C, then that can be an error of law. If they looked at it and said I'm going to prefer the evidence of the articled clerk over the Nobel laureate, then that is not an error of law because they have weighed the evidence and made a decision. It might be perverse but unless it is in Wednesbury unreasonableness territory we don't come close to an error of law. So what I am putting is a discrete creature. It is the ignoring of evidence. And my proposition is that provided that evidence goes to a necessary consideration, the ignoring of the evidence is an error of law. That is my proposition. HIS HONOUR: You can live with the fact that the mandatory consideration has been looked at, but what you say is the error of law is that if you assume that there were two things that were relevant to that mandatory consideration, the tribunal has only looked at one of them and therefore come to a view on the mandatory consideration, but there was another thing over here that they completely ignored, it is that that you say is the error of law, that they failed to take into account a relevant consideration. WOOD: That is precisely how I put it, respectfully.
3. The matters which it was submitted the Tribunal did not consider were specified in Mr AW's written submissions: 17. The nub of this appeal is that the Tribunal did not consider the following matters: a. on 19 August 2016 Mrs W had scored only 21/30 when undertaking a MocA; b. post-operatively, hospital notes dated 23 November 2021 record: "Thought she saw a cat on another patients (sic) bed. Wanted staff to locate her book from her recliner (at home) and got angry when she explained she's not at home." c. on the same day a hospital registrar noted: Likely background cognitive impairment has longstanding persecutions about all sorts of beliefs including affairs. d. in late 2021 Mrs W was prescribed Quetiapine, which is an anti-psychotic mediation used in the treatment of psychotic illness (similar to that occurring in the context of a diagnosis of schizophrenia) or when delusions, hallucinations, paranoid or disordered thinking occur. [JS] was indistinct about what he had been told of its possible side-effects; as best he could remember, he was informed that it was "very beneficial for her". A hospital note recorded: Pt remains agitated and paranoid at times." e. Prof Rosenfeld had noted instances where Mrs W had not been able to comprehend advice from social workers and where she was unable to say whether all of her breast cancer had been removed. In relation to that last matter, Prof Rosenfeld opined: "That Mrs W, having been under the care of a range of specialist doctors, had undergone major surgery and presumably involved in decisions about her ongoing treatment, then expressed her anxiety to […] regarding her lack of awareness of these issues may have, in my view, prompted considerable concerning comment. Her lack of clarity, recall and understanding of these key issues, affecting her life and end-of-life planning would in my view raise considerable concern." f. The treating notes contain examples of occasion where Mrs W appeared confused, anxious, or subject to delirium, or suffered the consequences thereof. g. The progress notes for 12 January 2022 recorded the attendance of a social worker, who notes: "SW let that Pt no about STACS, and fee ect [sic] regarding plan to assist Pt to get home. Pt responded saying that she is not able to process this information, and that SW should contact her friend [KB]."
4. Mr Wood SC accepted that the first of these matters was not particularly persuasive because this matter was expressly referred to by the Tribunal in its summary of medical evidence at [32] of the Decision.
5. Mr Wood SC further submitted that the failure to take into account a consideration that was made mandatory, or in his submission even necessary, by the relevant legislation could amount to an error of law. The failure to address relevant evidence going to a point that was necessary to decide was a subset of that error of law. Mr Wood accepted that it was not open to his client to contend that an error of law had occurred if the Tribunal reached a conclusion that was said to be against the weight of the evidence if it had weighed up competing evidence and accepted the evidence of one person over another. However, in his submission, provided that evidence went to what he called a necessary consideration, the ignoring of that evidence was an error of law. He also submitted that the Tribunal having decided that Mrs W was a person in respect of whom a guardianship order could be made, had overlooked the matters referred to in [34] above in its consideration of whether a guardianship order should be made.
6. Mr Wood SC laid considerable emphasis on written submissions in reply to the Tribunal dated 9 October 2022 prepared by a senior counsel then appearing for Mr AW. Those submissions attached a number of documents which it was submitted supported the orders which Mr AW sought from the Tribunal. These documents form the basis of the list set out in [34] above. The submissions referred to the evidence in relation to Mrs W being prescribed Quetiapine. They went on to refer to various parts of an expert report from Professor Rosenfeld (a highly experienced geriatrician whose evidence was ultimately not preferred by the Tribunal) which it was submitted identified "numerous and complex medical problems affecting Mrs W". However, importantly for present purposes, that part of the submission then focuses on the issue of dementia by concluding "that failure [JS's view that Mrs W did not require psychological assessment] is all the more significant if, as Professor Rosenfeld opines Mrs W is more likely than not to be suffering from still more serious conditions - namely, progressive neuropsychological impairments and the dementia syndrome associated with brain vascular diseases".
7. Mr Wood SC placed particular emphasis on paragraphs 9 and 10 of those submissions in reply: 9 At paragraph 6.3.4 of his report dated 3 February 2022, Prof Rosenfeld stated: "In my opinion while she suffers from post-operative delirium and fluctuating cognition Mrs W is more likely than not unable to provide informed consent nor have capacity in decision making or consent regarding her medical care, medication management, surgical interventions all resuscitation measures." If Prof Rosenfeld is correct in this respect, it is significant that neither of her guardians has consented to Mrs W undertaking appropriate medical treatment in this regard; and she herself is the only person who has apparently provided consent, including in relation to the prescription of Quetiapine… I0. However, that submission is not contingent upon the acceptance of Prof Rosenfeld's opinion. The treating notes contain many examples of occasion where Mrs W appeared confused, anxious, or subject to delirium, or suffered the consequences thereof: sec, for example (i) paragraph 7.3 of Prof Rosenfeld's report of 30 November 2021; and (ii) paragraphs 6.2-6.4 of his report of 21 April 2021; and also the clinical notes at pages 31-32, 43, 53, 55, 60, 63, 66, 67, 73, 75, 84, 86, 88, 101,200,209,233,234,238,239,247,248,250,260,265,275.310. 380,400 and 410-411 … Further still, Dr Pratten noted that Mrs W suffered from anxiety and depression "and during times of acute stress she can become so upset that she is not able to clearly talk about what her concerns are and in the moment can find it difficult to concentrate on complicated matters" (as extracted from paragraph 7.3.3.3 of Prof Rosenfeld's report of 30 November 2021). That conclusion is consistent with what Dr van den Berg experienced when she first interviewed Mrs W.
8. He submitted that the Tribunal did not take into account the matters referred to in those paragraphs. Furthermore, by reference to the clinical notes referred to, it was contended that there was "a clear basis for the Tribunal to reach a conclusion that [Mrs W] suffered from conditions that made her vulnerable and the Tribunal did not address that point" (Tcpt, 16 October 2023, p 29(37)-(40)). He submitted that by reference to the submissions in reply and those paragraphs in particular, it had been put to the Tribunal that Mrs W suffered from those ailments. The Tribunal, on AW's case, ought to have directed itself to whether there was any condition other than anxiety or depression (which it did find Mrs W suffered) that was a lesser condition than dementia, which should have informed the exercise of its discretion as to what steps ought to have been taken to protect Mrs W's interests.
9. It was also submitted that senior counsel then appearing, through these submissions, was inviting the Tribunal (which included a medical member) to consider the clinical notes and to assess the conditions which were referred to in them. That being said, however, Mr Wood SC accepted that nowhere in the submissions had the Tribunal been invited to make specific findings about, for example, delirium as a matter to be taken into account in determining the ultimate question of Mrs W's capacity. Nevertheless, it was essential for the Tribunal to consider all conditions that might bear upon that question, whereas the contention was that they had only considered anxiety, depression and stress.
10. Having set out the emphasised paragraphs from the submissions in reply in [38] above, it convenient at this point to record the Court's acceptance of Ms Seiden SC's submission that it is apparent from the Decision that the Tribunal had not overlooked the matters to which those paragraphs had referred. So much appears from these parts of the Decision: 56 A/Professor Rosenfeld indicates that in his view, so long as they were present, the post operative delirium and fluctuating cognition exhibited by Mrs W after her diagnosis with breast cancer and surgery would prevent her being able to make decisions about her medical care. He also comments that Mrs W's anxiety and depression are likely to affect her decision making ability. … 61 Notes from Sutherland Hospital on 21 November 2021 indicate that Mrs W was commenced in Quetiapine. In [A/Professor Rosenfeld's] view, in a person with recent falls and reduced mobility and functioning and with reduced cognitive reserve, that medication could have significant adverse effects and would require close monitoring. 62 Notes from Sutherland Hospital include that on 12 January 2022 Mrs W told the social worker that she was not able process information regarding future planning and that the social worker should contact her friend. In the view of A/Professor Rosenfeld, Mrs W's involvement in her treatment has been limited.
11. Finally, it was submitted that in declining to make a financial management order, the Tribunal had again failed to take into account precisely the other medical conditions of which there was evidence (other than anxiety and depression) which should have led to the finding that she was incapable of managing her financial affairs.

Mrs W's Response

1. Ms Seiden SC's submissions for Mrs W included close reference to a number of authorities. I shall return to some of these in [49] and following below. With no disrespect intended to what were very thorough submissions, they may be summarised in five essential propositions.
2. First, "the question of law" in the NCAT Act schedule 6 part 6 clause 14 (1)(b) is a "pure question of law".
3. Second, that question of law must be apparent on the face of the question. That was not the case here. The claim disclosed by the amended summons (see [13] above) was that the Tribunal had failed to make certain findings of fact and that complaint raises a question of fact rather than a pure question of law.
4. Third, it was not open to AW to raise a question of fact by no more than the recitation of the formula that a question of law arose. What AW was really raising was an issue of sufficiency of evidence and what weight the Tribunal should have given to that evidence. That is not a question of law.
5. Fourth, there was no suggestion that the Tribunal had failed to take into account a mandatory consideration in the sense considered by the High Court in Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24.
6. Fifth, in any event, it was evident from the Decision that the Tribunal did consider whether Mrs W suffered from delirium, delusions, paranoia or confusion.

Consideration

1. The first question for determination is what is the proper construction of "question of law" in clause 14(1) of part 6 schedule 6 of the NCAT Act. I set it out again here for convenience: 14(1) A party to proceedings in which an appealable Division decision is made may appeal to the Supreme Court against the decision - (a) in the case of an interlocutory decision of the Tribunal - with the leave of the Court, or (b) in the case of any other kind of decision - as of right on any question of law, or with the leave of the Court, on any other grounds.
2. In Orr (at [40] per Bathurst CJ and Bell P; Johnson, Garling and Lonergan JJ agreeing) it was said of the expression "question of law" that: Like any statutory expression, its meaning is ultimately to be derived from its statutory context and by reference to the purpose of the provision and statute in which it appears.
3. While Orr concerned the meaning of "question of law" in the context of a referral to the Court of Criminal Appeal under section 5AE of the Criminal Appeal Act 1912 (NSW), the following passages from the judgment of the Chief Justice and President (as Bell CJ then was) are equally applicable to the case at bar: 60 It is well established that a question of mixed fact and law is to be differentiated from, and is not, a "question of law". In Thomas v R (1937) 59 CLR 279 at 306; [1937] HCA 83 (Thomas), Dixon J noted that a "mistake as to the existence of a compound event consisting of law and fact is in general one of fact and not a mistake of law". Thomas was cited with approval in Iannella v French (1968) 119 CLR 84 at 114-115; [1968] HCA 14; see also W v R (1986) 161 CLR 278 at 287 and 314; [1986] HCA 88; cf. Lavorato v R (2012) 82 NSWLR 568; [2012] NSWCCA 61 at [13]. 61 In Australian Telecommunications Corporation v Lambroglou (1990) 12 AAR 515 at 527; [1990] FCA 689, Ryan J observed that "if the question, properly analysed is not a question of law, no amount of formulary like 'erred in law' or 'was open as a matter of law' can make it into a question of law." … 108 In keeping with the observations of Simpson J in Goulburn Wool, the evident purpose of the procedure provided by s 5AE is to provide a facility whereby, if there is a difficult or unsettled question of law or a question of law as to which there are conflicting authorities or no clear authority, the judge hearing the matter may or, if the Crown requires, must submit such questions to the Court of Criminal Appeal. 109 Those questions of law should be, in our opinion, what are sometimes described as "pure questions of law". They should not draw the Court of Criminal Appeal into questions of fact. Moreover, they must be questions whose character as a question of law can be recognised on the face of the question, and not depend upon the answer given to the question. This does not include a question which may ultimately disclose an error of law depending on an analysis of the facts but where this cannot be known without scrutiny of the facts. The construction accords with the cases we have referred to at [48] and [70] above.
4. Their Honour's exclusion at [109] of "a question which may ultimately disclose an error of law depending on an analysis of the facts but where this cannot be known without scrutiny of the facts" is a reminder of one source of complication in this area of discourse, being that some questions of law, properly framed and understood as such, will require an examination of the facts. However, in my respectful opinion, this latter category is generally and necessarily confined to submissions of jurisdictional error on grounds such as 'Wednesbury unreasonableness' or constructive failure to exercise jurisdiction. This reflects the nature of such challenges which the High Court summarised in its recent judgment of Mounib Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2 (emphasis added): 25 The making of a decision, the decision-maker having failed to inquire about a relevant fact or matter, may involve jurisdictional error capable of characterisation as either a constructive failure to exercise jurisdiction or a legally unreasonable exercise of a particular duty or power. While decisions have expressed the criteria for an error of this kind as including that the potential fact was readily ascertainable and was critical or central to the decision, these criteria merely reflect the usually high threshold for a conclusion that a power has been unreasonably exercised as a matter of law.
5. The Court accepts Ms Seiden SC's submission that in the context of the present appeal, a "question of law" means a pure question of law, that is to say not a mixed question of law and fact or anything else. This conclusion derives from the terms of clause 14(1) itself, fortified by the context that it concerns appeals from a specialist division of the Tribunal (schedule 6 being concerned with the Guardianship Division of the Tribunal). The language of clause 14(1) is consistent with a statutory purpose of recognising that specialisation by affording what might be termed an assumption (not presumption) of finality to the decisions of the Tribunal. This is done, first, by making appeals from interlocutory decisions of the Tribunal subject to a grant of leave. The clause then goes on to "any other kind of decision" (that is to say, any decision other than an interlocutory decision) by providing for an appeal as of right "on any question of law" as opposed to requiring the leave of the Court for an appeal "on any other grounds". The overall scheme of clause 14 is clear from its terms that the path to an appeal to this Court is a narrow one, largely controlled by the requirement for leave, save for an appeal as of right on a question of law. This bespeaks the most confined construction of the words "question of law", being a pure question of law. The repeated use of the word "any" does not derogate from that conclusion.
6. For the sake of completeness, I should record that one of the arguments advanced for Mrs W was that in construing what may be a "question of law" within a particular statute, the words usually carry the same meaning as they do when used elsewhere in the statute. I express no view on that proposition. This argument then led to the submission that this Court has already confined an appeal under GA s 83 Act (being appeals to this Court from, broadly, appeals internal to the Tribunal) with leave on a "question of law" to a pure question of law. While I accept that the two decisions relied upon for that proposition (Wilson v Chan & Naylor Parramatta Pty Ltd atf Chan & Naylor Parramatta Trust [2020] NSWCA 62 and Thomas and Naaz Pty Ltd v Chief Commissioner of State Revenue [2023] NSWCA 40 are consistent with that proposition, I do not think it strictly forms part of the ratio in either case. However, for present purposes nothing turns on that reservation.
7. The second and dispositive question is, therefore, whether the relevant parts of the amended summons (set out in [13] above) disclose a pure question of law. It is the question itself which is the subject matter of the appeal and the question of law must be identified with precision: Ferella v Chief Commissioner of State Revenue [2014] NSWCA 378 and [22] per White J (Barrett and Leeming JJA agreeing). In approaching this question, I express my respectful agreement with and apply these observations of Young J (as his Honour then was) in Re R [2000] NSWSC 886 (which concerned a predecessor of clause 14(1)): 24 The appeal is an appeal on a question of law only. It is sometimes quite difficult to separate out what are matters of fact and what are matters of law. In dealing with an appeal from a Tribunal of this nature, as is said in Wade and Forsyth, Administrative Law, (Oxford University Press, 1994) 7th Edition at page 945: "It is of great importance that it [the right of appeal on a point of law] should be generally available, so that the courts may give guidance on the proper interpretation of the law and so that there may not be inconsistent rulings by tribunals in different localities. It is through appeals that the courts and the tribunals are kept in touch, so that the tribunals are integrated into the machinery of justice." This is the prime reason why there is an appeal as of right. 25 Just what is in the category of a question of law is sometimes hard to decide. However, generally speaking the matter is quite clear. If there is a question as to the meaning of an Act in the circumstances, if there are other questions of construction of the law or vital agreements, if there is a finding of fact made of which there is no evidence to support it or perhaps if so much irrelevant material enters into the decision making process that it is a nullity, then one has a question of law. Outside that field, normally one has a question of fact. This is so even if there is a finding of fact which is against the evidence and the weight of the evidence: Haines v Leves (1987) 8 NSWLR 442, 469 and 470. This is an oversimplification, but, generally speaking, is the way in which the distinction operates.
8. For the reasons which follow, and applying the overview of principle provided by Young J in Re R at [25], the Court finds that the question posed in the amended summons does not disclose a question of law.
9. Authority to which I have already referred (see [51] above) makes clear that something which is not a question of law cannot be converted into one by the formulaic assertion that it is a question of law. While clause 1E of the amended summons asserts that "a question of law arises", it cannot rise higher than "the premises" upon which it relies. Those premises, being paragraphs 1, 1A and 1B of the amended summons when read as a whole constitute, in my respectful opinion, a fact based challenge to the effect that there was other evidence before the Tribunal that could or should have led to the conclusions for which Mr AW had contended before the Tribunal. As such, no pure question of law is disclosed.
10. The difficulty for AW in the present case is that the appeal does not rely on any of the kinds of grounds such as those adverted to by the High Court in Ismail which it may be accepted would give rise to a question of law. Such grounds were expressly disavowed by Mr Wood SC in pressing the narrow basis for which he contended. That narrow basis requires an examination of the facts for something quite different from, and in a sense less demanding than, the "high threshold" referred to by the High Court in Ismail. As such, it cannot be described as a pure question of law. Properly understood, it invites a review of the merits. This is because the references in paragraph 1E of the question posed to failure "to give proper and realistic consideration" or failure "to take into account considerations relevant" suffer from the difficulty identified by Spigelman CJ in Bruce v Cole (1998) 45 NSWLR 163 at 186 (Mason P, Sheller and Powell JJA agreeing) about such expressions: These particular formulations must be treated with care, so that the relevant/irrelevant considerations ground is not expanded to permit review of the merits. That ground is restricted in accordance with the now classic judgment of Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-42, to matters which the decision maker was obliged to take into account.
11. Mr Wood SC was correct to describe the challenge as being brought on a narrow basis. Having eschewed claims of the kind referred to in Ismail, it was necessary for AW to bring his challenge within the rubric of failure to take into account a material consideration. However, I accept Ms Seiden SC's submission that, in reality, the challenge was closer to one based on a complaint about the sufficiency of evidence (which does not raise a question of law), or in this case to the effect that there was sufficient other evidence to have found that a new guardian should have been appointed and a financial management order made. It is the combination of an acceptance that the Tribunal had exercised its jurisdiction with the emphasis on an alternative factual analysis of the evidence that was before the Tribunal that leads to the conclusion that the matters advanced for AW, while put with skill and precision, really amounted to a submission that the Tribunal had come to the wrong conclusion on the facts.
12. One aspect of the difficulty with AW's case was manifested by describing attention to the specified medical conditions as being "necessary". That was a term apt to confuse, not least because of its similarity to "mandatory". However, AW's case was not that that the Tribunal had failed to take into account a consideration that was mandatory in the Peko-Wallsend sense. Mr Wood SC did not attempt to demonstrate that the specific medical conditions said not to have been taken into account were required to have been taken into consideration by reference to the subject matter, scope and purpose of the GA (see Peko-Wallsend per Mason J (as his Honour then was) at 40).
13. Finally, there are two other reasons why the Court is not satisfied that a question of law as either set out in the amended summons or as explicated by Mr Wood SC during the course of argument has been made out in the present case.
14. First, by reason of the matters set out in [14], [15], [16] and [41] above, the Court is not prepared to infer that the considerations identified on behalf of AW as not having been taken into account were in fact not taken into account. The Tribunal records those pieces of evidence specifically or as to their effect in the course of the Decision. In any event, a decisionmaker such as the Tribunal "is not bound to refer to every item of evidence in framing its reasons….The Tribunal is required to set out its findings about essential facts, to indicate the legal principles it is applying and the chain of reasoning it has adopted": Castro v Minister for Immigration and Ethnic Affairs [1997] FCA 40 at p 8 per Wilcox J.
15. Second, and related to the preceding point, an assessment of whether a question of law is raised where this Court is required to examine the evidence before the Tribunal cannot be undertaken without considering how the case was run before the Tribunal. Mr Wood SC fairly accepted that his client's case below was not run on the basis that the Tribunal should make findings as to specified medical conditions which alone or in combination would support the orders sought by AW. On the contrary, it is clear from the detailed exposition in the Decision of the evidence that was put before the Tribunal that Mrs W's conditions were presented to it in an undifferentiated or cumulative way, with the expert evidence which suggested Mrs W may be suffering from dementia being deployed as the tip of the forensic spear. The Court will be slow to find that a tribunal has erred for failing to consider a specific circumstance or reach a specific conclusion which it does not appear clearly to have been invited to consider or reach when the tribunal's reasons appear to be comprehensive.

Conclusion

1. The parties will be given an opportunity to address both as to the form of orders to give effect to these reasons and as to costs.
2. In relation to the orders it may be sufficient for the amended summons to be dismissed. However, clause 14(4) of the NCAT Act provides: (4) In determining an appeal, the Supreme Court may make such orders as it considers appropriate in light of its decision on the appeal, including (but not limited to) orders that provide for any one or more of the following - (a) the decision under appeal to be confirmed, affirmed or varied, (b) the decision under appeal to be quashed or set aside, (c) the decision under appeal to be quashed or set aside and for another decision to be substituted for it, (d) the whole or any part of the case to be reconsidered by the Tribunal at first instance, either with or without further evidence, in accordance with the directions of the Supreme Court.
3. There may be some reason of which the Court is presently unaware that would warrant an order that the Tribunal's decision should be "confirmed" or "affirmed".
4. As to costs, it may be necessary for the Court to hear argument about more than just the hearing before me. I note that at [28] of his judgment in AW v WW [2023] NSWSC 724, Lindsay J reserved the costs of the application before him for further consideration upon determination of the appeal.

Endnote

1. Associated Provincial Picture Houses Ltd v Wednesbury Corp [1947] 2 All ER 680. 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: 26 February 2024