BTH v The Public Guardian

NCAT Appeal Panel|2015-07-14

their identification is prohibited (s 65, Civil and Administrative Tribunal Act 2013 (NSW)). Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Guardianship Division Citation: 2014/4667 Date of Decision: 21 November 2014 Before: D Thorley, Dr I Beale, and L Manns File Number(s): C/54466

Background

BTI is a 99-year-old woman of Italian background who resides in her own home in Regional NSW with her extended family living in the area. She has a son, BTJ, and a number of grandchildren. She is widowed. Her daughter, GBE, passed away in March 2013. GBE was married to DQE and there are three children from this marriage, including BTH.
On 25 July 2003, BTI appointed her son, BTJ, and her daughter, GBE, as her attorneys. On 16 March 2006, she appointed BTJ as her enduring guardian.
In 2013 and 2014, BTI was the subject of a number of applications made to both the predecessor of the Tribunal, the Guardianship Tribunal of NSW, and the Tribunal (which commenced on 1 January 2014), by her granddaughter, BTH, and her son, BTJ. These applications, made pursuant to the Guardianship Act 1987 (NSW) ("the Act"), included applications made on 18 September 2013 by BTH seeking the appointment of a guardian and a financial manager, an application to review the operation and effect of an instrument appointing a power of attorney, and a further application made on 11 February 2014, seeking a review of the enduring guardianship appointment. On 14 February 2014, BTJ also filed an application to review the instrument appointing a power of attorney and, in particular, sought orders to reinstate that instrument.

Notice of Appeal

On 20 January 2015, BTH lodged an application for an internal appeal with the Tribunal to appeal the decision made on 21 November 2014 in relation to the guardianship order. In the Notice of Appeal, BTH identified the order the subject of the appeal, as the order to allow to lapse the guardianship order made in relation to BTI on 27 May 2014.
At a directions hearing held on 10 February 2015, directions were made for the filing and service of documents, including an amended Notice of Appeal. Amended grounds of appeal were filed on 2 March 2015.
A further directions hearing was held on 10 March 2015 and directions were made for the filing and service of documents, including a (further) amended Notice of Appeal, following receipt by BTH of the transcript of the proceedings the subject of the appeal. Further amended grounds of appeal were filed on 24 March 2015.
On 6 May 2015, a hearing was conducted in Sydney to hear the appeal. Some parties, including BTI, sought to participate via telephone from Regional NSW. Because of difficulties with the telephone connection and engaging with BTI by telephone, the Appeal Panel decided to adjourn the proceedings so that the matter could be heard at a location in Regional NSW, to enable BTI who required the assistance of an interpreter, to participate in the proceedings.
The Appeal Panel made the following directions: 1. Leave to Ms Z Heger to represent [BTH]. 2. Leave to Mrs C Mahony to represent [BTI]. 3. Leave to Ms D Reid to represent [BTJ]. 4. [BTH] is to file and serve by 22 May 2015: a. an outline of written arguments and any further material to be relied on (including a transcript of the hearing below) in respect of the internal appeal and, b. in the event the Appeal Panel decides to deal with the internal appeal by way of a new hearing under s 80(3) of the Civil and Administrative Tribunal Act 2013, any material that [BTH] may wish to rely on at a new hearing. 5. The Respondent is to file and serve by 5 June 2015 an outline of written arguments and any further material to be relied on in response to the written arguments and material filed and served by the [appellant] as referred to in (4). 6. The proceedings to be listed for hearing in [Regional NSW] on a date to be advised by the Tribunal.

Hearing on 14 July 2015

A differently constituted Appeal Panel conducted a hearing in Regional NSW on 14 July 2015. The First Respondent, the Public Guardian of NSW, elected not to participate in the proceedings. All other parties to the appeal participated in the hearing and were legally represented. All parties except the Public Guardian provided written submissions in advance of the hearing.
BTI attended the hearing and was assisted by an interpreter.
The Appeal Panel proceeded to hear the appeal and then stood the matter down to engage in deliberations. In light of the directions made by the Appeal Panel on 6 May 2015 (order 4(b)) and having regard to the principles outlined in s 36 of the Civil and Administrative Tribunal Act 2013 (NSW) ("the CAT Act"), prior to standing the matter down, the Tribunal sought confirmation from the parties that they were in a position for the matter to proceed by way of a new hearing before the Appeal Panel, on that same day, if the Appeal Panel determined to uphold the appeal and take that course of action. All parties advised of their readiness if this was to eventuate.
After all parties had made oral submissions, the Appeal Panel was advised that during a break in proceedings, BTI and BTH had been in discussion and that there was some prospect of a resolution. However, all parties requested the Appeal Panel to give an indication of its decision on the appeal before settlement discussions resumed.
The Appeal Panel advised the parties that its preliminary view was to allow the appeal and to proceed to deal with the appeal by way of a new hearing pursuant to s 80(3) of the CAT Act.
At the request of the parties, the Appeal Panel gave the parties further time to pursue settlement options. At the end of the day, the parties advised that a resolution had been reached, and by agreement, requested that the Appeal Panel not make final orders in the appeal, but rather adjourn the proceedings for a period of approximately two months. BTH foreshadowed that once the terms of a written agreement was settled she would discontinue the appeal. Having regard to the provisions of s 37 of the CAT Act and the requests of the parties, including BTI , the Appeal Panel decided not to make any final orders in the appeal, to note the terms of the agreement between the parties, and to otherwise adjourn the matter for approximately two months. In addition, the Appeal Panel advised that if agreement between the parties was not reached, it would move to allow the appeal and make consequential orders.

Events since the Hearing of 14 July 2015

In August 2015, solicitors acting for BTI and BTH notified the Appeal Panel that they were unable to reach agreement. BTH requested that the matter be relisted.
By correspondence dated 24 August 2015, the solicitors for BTJ made an application seeking that the proceedings be permanently stayed. They wrote: The application of [BTH] is an abuse of process pursued for an improper purpose being outside the jurisdiction of the Tribunal and not for the benefit of the subject person the first respondent.
The Appeal Panel conducted a directions hearing on 31 August 2015 and made the following orders and notations: 1. [BTJ], by correspondence from his legal representative dated 24 August 2015, lodged an application with the Tribunal requesting a permanent stay of the proceedings being pursued by [BTH], seeking a limited guardianship order over [BTI]; 2. The Tribunal directed that [BTJ] file and serve an outline of the submissions and material to be relied upon in relation to the application for a permanent stay by 14 September 2015; 3. The Tribunal directed [BTH] and the [BTI] to file and serve an outline of their submissions and material to be relied upon by way of reply to the [BTJ]'s application by 29 September 2015; and 4. The proceedings are to be listed for further hearing before the Appeal Panel at a venue, and upon a date, to be fixed by the Principal Registrar.
The application for a permanent stay was listed for hearing before the Appeal Panel on 15 January 2016.

Application to revoke leave to BTI's solicitor to represent BTI

On 10 November 2015, BTH's solicitors wrote to the Tribunal seeking orders that leave granted to Ms C O'Mahoney to represent BTI be revoked, and that an order be made pursuant to s 45(4)(c) of the CAT Act that she be separately represented.
On 2 December 2015, solicitors for BTH wrote to the Tribunal requesting that the issue of BTI's representation be determined prior to continuation of proceedings before the Appeal Panel listed for 15 January 2016.
A hearing was conducted on 21 December 2015 to determine the representation application made by BTH. All parties and their representatives participated in the hearing by telephone. On 22 December 2015, the Appeal Panel dismissed the application to revoke leave for legal representation previously granted to BTI: BTH v NSW Public Guardian [2016] NSWCATAP 12.
Following advice that BTH intended to appeal to the Supreme Court of NSW, the Appeal Panel subsequently adjourned the hearing listed for 15 January 2016.
Following a hearing on 5 April 2016, the Supreme Court dismissed BTH's appeal: BTH v BTI, BTJ & Ors [2016] NSWSC 533.

Determination of the appeal

On 19 August 2016, the Appeal Panel issued the following directions in chambers: NOTING that the Supreme Court of NSW dismissed the appeal against the decision to revoke leave to allow [BTI] to be legally represented (BTH v BTI, BTJ & Ors [2016] NSWSC 533), the Appeal Panel proposes to proceed to determine the appeal against the decision made by the Guardianship Division of NCAT on 21 November 2014 (the decision under appeal). The Appeal Panel directs: 1. By 5 September 2016, [BTJ] must give to the Tribunal and all other parties to the appeal, a document setting out: (i) whether he wishes to proceed with his application for a "permanent stay" of the decision under appeal, and (ii) if so, any further submissions in support of that application. 2. If [BTJ] elects to proceed with the application for a "permanent stay", any party wishing to respond must give to the Tribunal and all other parties to the appeal, written submissions in response by 19 September 2016. If [BTJ] elects to proceed with the application for a "permanent stay", the Appeal Panel is of the opinion that it can probably be determined on the basis of any written submissions made by the parties without holding a further hearing (see s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW)). Any party wishing to comment on this proposed course must give to the Tribunal and all other parties, brief written submissions by 19 September 2016. If the Appeal Panel proceeds to consider the application for a "permanent stay" without holding a further hearing, and decides to dismiss that application, then as foreshadowed at the hearing of the appeal on 14 July 2015, the Appeal Panel will proceed to determine the appeal on the basis of the submissions made by the parties as at 14 July 2015.

Decision to determine the proceedings without further hearing

Section 50 of the CAT Act permits the Appeal Panel to dispense with a hearing if it is satisfied that the issues for determination can be adequately determined in the absence of the parties by considering any written submissions or any other documents or material lodged with or provided to the Appeal Panel: s 50 (2). An order to dispense with a hearing can only be made where the Appeal Panel has given the parties an opportunity to make submissions about whether the issues for determination can be adequately determined without a hearing and considered those submissions: s 50(2).
BTH supported the determination of the application for the stay without holding a further hearing. BTI objected to the Appeal Panel's course of action on the basis that a hearing in relation to the permanent stay application had previously been listed and that there had been no change in circumstances to justify the Appeal Panel dispensing with the hearing. No submissions on this point were filed by BTI or the Public Guardian.
The Appeal Panel decided that the application for a permanent stay could be adequately dealt with on the basis of the written submissions provided by the parties. For the reasons discussed below, the Appeal Panel dismissed that application.
Having dismissed the application for a stay, we proceeded to determine the substantive appeal on the basis of the written and oral submissions provided to the Appeal Panel at the hearing on 14 July 2015. It will be recalled that at that hearing all parties were given the opportunity to make final submissions about the appeal, however at the request of the parties, the Appeal Panel did not make final orders and gave the parties the opportunity to reach an agreement.
After BTJ made an application for a permanent stay of the proceedings, the parties were directed to provide written submissions. An opportunity was further provided to the parties to file further submissions as to this application by the directions made on 19 August 2016.
The outstanding matters for the Appeal Panel to attend to were to determine the application for a permanent stay, and, if such application were unsuccessful, proceed to issue orders disposing of the appeal.
Upon review of the written submissions addressing the permanent stay application, and noting that parties had already been afforded the opportunity to provide their views on the orders the Appeal Panel should make in disposing of the appeal at the hearing of 15 July 2015, the Appeal Panel formed the view that the matter could be determined on the written submissions without the need for a further hearing.
After advising the parties of this intended course of action, the only party to object was BTH. The Appeal Panel has taken into consideration the basis for BTH's objections. The only substantive basis for objection was that this was not the course of proceedings previously advised by the Appeal Panel.
Given the nature of the application to be determined, the history of the proceedings, and the fact that all parties were afforded an opportunity to file additional written submissions in relation to the outstanding application, the Appeal Panel remained of the view the proceedings could be concluded without a further hearing.

Application for a Permanent Stay

BTJ filed extensive submissions in support of the application for a permanent stay of the appeal proceedings. In short he argued that :

The initiating application by BTI was "an abuse of process" because it was beyond the scope of the Act to use a guardianship order as a mechanism to enforce family dispute resolution;
There was no proper purpose in seeking to reinstate the original guardianship order because among other things, there was no evidence to support the removal of the existing enduring guardian [BTJ] and the Public Guardian saw no need for the continuation of its own appointment; and
The appeal was not designed for the welfare of BTI but rather were "an attempt to persuade [BTI] to a point of view acceptable to [the appellant]".

Apart from outlining BTJ's arguments as to the factual basis in support of the proceedings being permanently stayed, the submissions also directed the Appeal Panel to Caselaw principles as to the circumstances in which a permanent stay could be ordered.
As to the matter of whether the Appeal Panel has the jurisdiction to grant a permanent stay, BTJ asserted that the principles (as to the granting of a permanent stay) apply equally to Tribunals as to Courts. The Appeal Panel was not directed to any authority to support this position.
In response, the appellant contends that the Appeal Panel lacks the power to grant a permanent stay of the proceedings. The appellant asserts that the power conferred by s 29(3) of the CAT Act to grant a stay is an interim procedural power and does not give the Appeal Panel the power to permanently stay proceedings.
BTJ's further submissions of 31 August 2016 contained additional argument as to why the proceedings should be permanently stayed. Despite these submissions being filed well after all parties were in receipt of BTI's submissions of 30 September 2015 challenging the Appeal Panel's authority to order a permanent stay, BTJ's further submissions did not address this issue.
No submissions were received from BTI or the Public Guardian addressing the application for a permanent stay.

Consideration

For the reasons that follow we have decided that we lack the authority to grant a permanent stay of the appeal proceedings.
Section 28 of the CAT Act provides that the Tribunal has such jurisdiction and functions as may be conferred or imposed on it by or under that Act or any other legislation. Similarly, s 32(2) of the CAT Act provides that in the exercise of its internal appeal jurisdiction, the Tribunal has the jurisdiction to exercise such other functions as are conferred or imposed on the Tribunal by or under the Act or enabling legislation in connection with the conduct or resolution of the proceedings. Neither the CAT Act nor the Guardianship Act confers on the Appeal Panel the power to order a permanent stay of these proceedings.
The Tribunal is a creature of statute and is not possessed of inherent jurisdiction: Tuffy v Chadban [2004] NSWADT 216 at [21]; Herbert v Workers Compensation Commission [2016] NSWCATAD 28 at [34]. It is a repository of limited statutory powers afforded to it by the NSW Parliament. The Tribunal's powers must be found to be expressly granted to it by legislation, or be implied from the powers granted to, or from the nature and functions of, the Tribunal itself: Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11 at [125] (Kirby J).
As pointed out by the appellant, the Tribunal in exercising its internal appeal jurisdiction has the jurisdiction to make ancillary and interlocutory decisions in proceedings (s 32(2)(a) CAT Act). The granting of a stay is defined in the CAT Act as an interlocutory decision (s 4(1)). Accordingly, one function that is open to the Appeal Panel in these proceedings is to grant a stay in the context of making an interlocutory decision.
The order we are asked to make by BTJ self-evidently however cannot be characterised as an interlocutory decision. On this point, the Appeal Panel accepts the submissions put by the appellant. The CAT Act prescribes to the Appeal Panel the function to order a stay as an interlocutory decision. By its nature, it is a function that goes to procedure, providing an interim power to prevent potential injustice between parties before a matter is finalised. The stay power conferred upon the Appeal Panel in these proceedings does not extend to ordering a stay which permanently ends the proceedings.
BTJ did not seek that the Appeal Panel make any orders under s 55(1)(b) of the CAT Act. The Appeal Panel notes that this provision confers the authority to dismiss proceedings if the Tribunal considers that the proceedings are frivolous or vexatious or otherwise misconceived or lacking substance.
The same authority to dismiss proceedings is provided to the Tribunal when exercising jurisdiction relating to complaints under the Anti-Discrimination Act 1977 (NSW): see s 102 and s 92(1)(a)(i). In the matter of Burns v Sunol [2015] NSWCATAD 178 at [6], the Tribunal stated as follows as to the exercise of such power: The discretion to dismiss a complaint summarily, i.e. without full hearing, under s 102 (formerly s 111(1) of the Act) must be exercised with exceptional caution and only if the circumstances clearly warrant such action. (See Obieta v Australian College of Professionals Pty Ltd [2014] NSWCATAP 38 at [27]; Alchin v Rail Corporation NSW [2012] NSWADT 142 at [20]; Rae v Commissioner of Police NSW (No 2) [2010] NSWADT 36 at [84]; Commissioner of Police, N0ew South Wales Police Service v Orr [2001] NSWADTAP 16; Prakash v Bobb Borg Enterprises Pty Limited [1999] NSWADT 73.)
We gave consideration as to whether an order under this provision could be made. BTJ's arguments did not address the exercise of this authority and we were not satisfied that the arguments made in support of a permanent stay of the proceedings could, in any event, warrant the summary dismissal of the proceedings under s 55(1)(b) of the CAT Act.

Statutory framework relating to the appeal

The decision under appeal in this matter is an "internally reviewable decision": ss 4 and 32(4) of the CAT Act. A party may appeal an internally reviewable decision on any question of law or with the leave of the Appeal Panel on any other ground: s 80(2)(b) of the CAT Act. An Appeal Panel can decide to deal with an internal appeal by way of a new hearing: s 80(3).
Section 81 of the CAT Act sets out the orders that may be made on appeal: 81 Determination of internal appeals (1) In determining an internal appeal, the Appeal Panel 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 appeal to be allowed or dismissed, (b) the decision under appeal to be confirmed, affirmed or varied, (c) the decision under appeal to be quashed or set aside, (d) the decision under appeal to be quashed or set aside and for another decision to be substituted for it, (e) the whole or any part of the case to be reconsidered by the Tribunal, either with or without further evidence, in accordance with the directions of the Appeal Panel. (2) The Appeal Panel may exercise all the functions that are conferred or imposed by this Act or other legislation on the Tribunal at first instance when varying, or making a decision in substitution for, the decision under appeal.

The grounds of appeal and the orders sought

The appellant's amended grounds of appeal are as follows: 1. The Tribunal erred in not making a further guardianship order and deciding that the previous guardianship order made on 27 May 2014 should lapse which had the effect of reinstating the appointment of [BTJ] as guardian. 2. The Tribunal erred in law by failing to provide reasons or adequate reasons for determining that the previous guardianship order made on 27 May 2014 should lapse (and [BTJ] be reinstated as enduring guardian) and no further guardianship order be made. 3. The Tribunal erred in finding that there no evidence to suggest that [BTJ] would not act in his mother's best interests when acting as her guardian. 4. The Tribunal erred in law by failing to provide reasons or adequate reasons for finding that there was no evidence to suggest that [BTJ] would not act in his mother's best interests when acting as her guardian, this is especially in light of the adverse findings about [BTJ]'s credibility that were made by the Tribunal on 21 November 2014 (the Tribunal was not "impressed" by his evidence and found it "simply not credible": see pages 4, 5 and 7 of the Tribunal's Reasons for Decision) and the findings made on 27 May 2014. 5. The Tribunal erred in finding that there were no other decisions that needed to be made by the guardian, and further it erred in accepting the Public Guardian's evidence that "there was little else they could do". 6. The Tribunal erred in law by failing to provide reasons or adequate reasons for not finding that there were no other decisions that needed to be made by a guardian, and failed to adequately consider [BTH]'s evidence, in particular that the guardian had given up on attempts to make physical contact with [BTI] after one or two visits. 7. The Tribunal erred in law on 17 November 2014 and 21 November 2014 by refusing leave to [BTH] to be legally represented at the review hearing. (deleted) 8. The Tribunal denied [BTH] procedural fairness by dismissing her applications to be legally represented. 9. The applicant seeks leave to further amend grounds once the transcripts of the previous proceedings are available. (deleted) 10. The Tribunal procedural fairness and erred in not ensuring that [BTI] understood the proceedings. Orders the NCAT Appeal Panel should make 1. the appeal be allowed. 2. the Tribunal's orders of 21 November 2014 be set aside insofar as they determined that the order of 27 May 2014 appointing the Public Guardian for a period of six months with the roles of access, advocacy and services (the guardianship order) should be allowed to lapse; and 3. renew the guardianship order of 27 May 2014 for a period of 12 Months, commencing from the date of the Appeal Panel's orders.
It is useful to adopt the grouping the appellant provided in her submissions as to the commonality between the various grounds of appeal.

Fresh evidence

As a result of the directions of 6 May 2015, there were documents filed with the Appeal Panel (other than submissions) which comprised evidence that was not before the Tribunal below. At the hearing conducted on 14 July 2015, the Appeal Panel did not proceed to deal with the proceedings as if it were a new hearing. Accordingly, the Appeal Panel has not taken into consideration any documentary evidence, or parts of documentary evidence, which was not available to the Tribunal below.

The parties' submissions

All of the parties to the proceedings, with the exception of the Public Guardian, filed submissions in relation to the grounds of appeal at various stages in the proceedings. Extensive submissions were filed by the appellant and BTJ. The Appeal Panel took account of these submissions which are summarised later where relevant. The Appeal Panel also took account of the submissions filed by BTI. These submissions could be summarised as mainly providing BTI's view on the proceedings as a whole, that she desired for them to come to an end, and that she supported the role played by her son, BTJ.

Grounds 2, 4, and 6 - "Inadequacy of reasons"

The appellant's grounds on this topic were that: the Tribunal failed to provide reasons or adequate reasons for: determining that the guardianship order should lapse (Ground 2); finding that there was no evidence to suggest that BTJ would not act in his mother's best interests when acting as her guardian (Ground 4); and finding that there was no other decision that needed to be made by a guardian (Ground 6).
Along with submissions as to the relevant case law, the appellant made the following submissions as to how the Tribunal erred:

the reasons for their decision did not comply with s 62(3) of the CAT Act
they failed to set out the relevant facts of their reasoning process
they accepted the evidence of the Public Guardian without questioning the role the Public Guardian had played during the order, particularly in relation to the requirement in the order of appointment that they take all reasonable steps to bring BTI to an understanding of the issues
they failed to provide reasons as to the suitability of BTJ to conduct the role of enduring guardian for BTI in light of adverse findings as to his independence and credibility, and
the issues of the actions of the Public Guardian and the ability of BTJ to perform the role as BTI's enduring guardian were central to the review proceedings. The Tribunal failed to make findings or explain its reasoning process as to matters central to the dispute which constitutes an error in respects of the obligation to provide reasons.

BTJ disputed these grounds of appeal. BTJ argued that the appellant's submissions were indicative that her focus was not on the well-being or wishes of BTI. The submissions did not address the legal principles as to the adequacy of the reasons in question and concluded as follows: The Tribunal in May 2014 made a limited guardianship order appointing the public guardian, apparently as a social experiment in the hope of some extended family therapy, no benefit can be seen to have flowed to [BTI] or for that matter the extended family relationships from that appointment. The Public Guardian acknowledged at the Review hearing of 21 November 2014 that it could not do more. What was expected of it: to override the wishes of a 97 year old and act in a didactic manner. Should they harass or bully her?

General principles - Reasons

A summary of the principles relevant to the giving of reasons is provided in the judgment of McColl J in Pollard v RRR Corp [2009] NSWCA 110 at [56]-[67] (Ipp JA, Bryson AJA agreeing): Obligation to give reasons 56 The Court is conscious of not picking over an ex tempore judgment and, too, of giving due allowance for the pressures under which judges of the District Court are placed by the volume of cases coming before them (Maviglia v Maviglia [1999] NSWCA 188 (at [1]) per Mason P). However a trial judge's reasons must, "as a minimum…be adequate for the exercise of a facility of appeal": Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247 (at 260) per Kirby P; (at 268 - 269) per Mahoney JA; Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430 (at 444) per Meagher JA. A superior court, "considering the decision of an inferior tribunal, should not be left to speculate from collateral observations as to the basis of a particular finding": Soulemezis (at 280) per McHugh JA applying Wright v Australian Broadcasting Commission [1977] 1 NSWLR 697 (at 701, 713). 57 The giving of adequate reasons lies at the heart of the judicial process. Failure to provide sufficient reasons promotes "a sense of grievance" and denies "both the fact and the appearance of justice having been done", thus working a miscarriage of justice: Mifsud v Campbell (1991) 21 NSWLR 725 (at 728); Beale (at 442) per Meagher JA. 58 The extent and content of reasons will depend upon the particular case under consideration and the matters in issue: Mifsud (at 728) per Samuels JA; Hull v Thompson [2001] NSWCA 359 (at [53]) per Rolfe AJA (Sheller JA and Davies AJA agreeing). While a judge is not obliged to spell out every detail of the process of reasoning to a finding (Yates Property Corporation Pty Limited (In Liq) v Darling Harbour Authority (1991) 24 NSWLR 156 (at 171) per Mahoney JA, (at 182) per Handley JA), it is essential to expose the reasons for resolving a point critical to the contest between the parties: North Sydney Council v Ligon 302 Pty Ltd (1995) 87 LGERA 435 (at 442) per Kirby ACJ; Soulemezis (at 259) per Kirby P, (at 270) per Mahoney JA, (at 280) per McHugh JA; applied in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme [2003] HCA 56; (2003) 216 CLR 212 (at [40]) per Gleeson CJ, Gummow and Heydon JJ. 59 The reasons must do justice to the issues posed by the parties' cases: see Moylan v Nutrasweet Co [2000] NSWCA 337 (at [61]) per Sheller JA (Beazley and Giles JJA agreeing). Discharge of this obligation is necessary to enable the parties to identify the basis of the judge's decision and the extent to which their arguments had been understood and accepted: Soulemezis (at 279) per McHugh JA. As Santow JA (with whom Meagher and Beazley JJA agreed) explained in Jones v Bradley [2003] NSWCA 81 (at [129]) it is necessary that the primary judge "'enter into' the issues canvassed and explain why one case is preferred over another"; see also Flannery v Halifax Estate Agencies Ltd t/as Colleys Professional Services [2000] 1 All ER 373 (at 377-378) per Henry, Laws LJJ and Hidden J. 60 Various observations have been made about the extent to which reasons should deal with the evidence. None is exhaustive; the test of adequacy, as I have earlier said, is relative. It is sufficient for the purposes of this case, to note the following. 61 The general proposition was stated by Samuels JA in Mifsud (at 728): "…[F]ailure to refer to some of the evidence does not necessarily, whenever it occurs, indicate that the judge has failed to discharge the duty which rests upon him or her. However, for 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' - to use the words which appear in the New Zealand case of Connell v Auckland City Council (1977) 1 NZLR 630 at 634." In similar vein, Gray J (with whom Fullagar and Tadgell JJ agreed) has said "[t]o have a strong body of evidence put aside without explanation is likely to give rise to a feeling of injustice in the mind of the most reasonable litigant": Sun Alliance Insurance Ltd v Massoud [1989] VR 8 (at 18). … 66 Because a primary judge is bound to state his or her reasons for arriving at the decision reached, the reasons actually stated are to be understood as recording the steps that were in fact taken in arriving at that result. Where it is apparent from a judgment that no analysis was made of evidence competing with evidence apparently accepted and no explanation is given in the judgment for rejecting it, it is apparent that the process of fact finding miscarried. This is because, so far as the reasons reveal, no examination was made of why the evidence which was accepted was to be preferred to that of other witnesses: Waterways Authority v Fitzgibbon; Mosman Municipal Council v Fitzgibbon; Middle Harbour Yacht Club v Fitzgibbon [2005] HCA 57; (2005) 79 ALJR 1816 (at [130] - [131]) per Hayne J (with whom McHugh J (at [26]) and Gummow J (at [27]) agreed)); see also Najdovski v Crnojlovic [2008] NSWCA 175 (at [21]) per Basten JA (Allsop P and Windeyer J agreeing).
In a recent discussion of the principles, Basten JA in Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33, noted at [48]: When an appellate court is invited to find that a trial judge provided inadequate reasons, it is important to understand the nature of the function being invoked. It is not the function of an appellate court to set standards as to the optimal, or even desirable, level of detail required to be revealed in reasons for judgment. Rather it is to determine whether the reasons provided have reached a minimum acceptable level to constitute a proper exercise of judicial power. Transparency in decision-making is an important value, but it is not cost free, and may involve separate parameters of quantity and quality.
Section 62(3) of the CAT Act states: 62 Tribunal to give notice of decision and provide written reasons on request … (3) A written statement of reasons for the purposes of this section must set out the following: (a) the findings on material questions of fact, referring to the evidence or other material on which those findings were based, (b) the Tribunal's understanding of the applicable law, (c) the reasoning processes that lead the Tribunal to the conclusions it made.
The nature and extent of the duty to give reasons in the Tribunal is set out in Collins v Urban [2014] NSWCATAP 17 at [48]-[57].

The applicable legislative test

The decision of the Tribunal, the subject of the appeal, was made pursuant to a review of the guardianship order made 27 May 2014, as required by s 25(2)(b) of the Act.
As clarified by an Appeal Panel of the former Administrative Decisions Tribunal in IF v IG & Ors [2004] NSWADTAP 3 (and recently confirmed by an Appeal Panel of the Tribunal in BZE v NSW Public Guardian [2015] NSWCATAP 64), in undertaking that review, the Tribunal was required to undertake a two-step process: First, the (former) Guardianship Tribunal must satisfy itself whether the person in respect of whom an application is made, or whose guardianship order is being reviewed, is a "person in need of a guardian". As we have already noted, that expression is defined in s 3 of the Guardianship Act 1987. In order to determine whether a person is a "person in need of a guardian" the Guardianship Tribunal must consider two things: (1) whether the person has a disability and (2) whether because of that disability the person is totally or partially incapable of managing his or her person. The determination of whether a person has a disability is governed by s 3(2) of the Guardianship Act 1987. The person must satisfy one or more of paragraphs (a) to (d) of s 3(2) and, by virtue of that fact (e.g. being a person who is intellectually disabled), be restricted in one or more major life activities to such an extent that he or she requires supervision or social habilitation. 25 If the Guardianship Tribunal is satisfied that a person meets the statutory definition of "a person in need of a guardian" it must undertake the second step in the process of determining whether to appoint a guardian. If the Guardianship Tribunal is not satisfied that a person meets the statutory definition of a "person in need of a guardian" there is no point in undertaking the second step in the process for the Tribunal cannot make a guardianship order in those circumstances. Thus, a finding by the Guardianship Tribunal that a person is a "person in need of a guardian" is a pre-condition to engaging in the second step in the process. 26 When undertaking the second step in the process required by s 14 of the Guardianship Act 1987 the Guardianship Tribunal is required to exercise a structured discretion. The Guardianship Tribunal must consider all of the matters set out in s 14(2) before exercising its discretion. The use of the words "shall have regard to" in s 14(2) is a clear indication of the legislative intent that the Guardianship Tribunal is obliged to consider all of the matters set out in that sub-section before exercising its discretionary power. Those matters have no hierarchy or weighting. Each is a mandatory consideration. The Guardianship Tribunal must determine in every case whether one or more of those considerations will be given greater weight than others. Whilst each is a mandatory consideration, in some cases there may be no evidence of one or more of them. In such circumstances it may be prudent for the Guardianship Tribunal to record that fact.

The first stage - "Person in need of a guardian"

In conducting the review of the existing guardianship order, the Tribunal was required to first make a determination as to whether BTI remained a "person in need of a guardian". In order to decide this, the Tribunal had to make a finding as to whether BTI had a disability, and if so, whether because of that disability BTI was totally or partially incapable of managing her person.
The Tribunal's reasons on this element of the statutory test commences as follows: When the previous order was made, the Tribunal found that [BTI] had a disability (being advanced age, her lack of comprehension of the [extended family]'s concern (a) for her ongoing relationship with them, and (b) that her assets and finances were being managed in her best interests) and was, at least partially, unable to make important life decisions. There is some new evidence before the Tribunal in relation to this issue, being the result of the RUDAS assessment administered by the subject person's GP, [Dr Z]. In her report to the Tribunal dated 13 Nov 14, [Dr Z] says the RUDAS score was 27/30 which did not indicate cognitive impairment. [Dr Z] went on to emphasise that the subject person was frustrated and angry about the continued proceedings, a position she had made clear in her evidence in the earlier hearing. However, the Tribunal had made it very clear in the earlier proceedings, that [BTI] had not related to [Dr Z] the full picture of her finances, and she had maintained to the doctor that the [extended family] had put pressure on her to sell her property, which allegation was against the body of evidence accepted by the Tribunal in those proceedings.
The report of Dr Z, as summarised in the reasons, stated that testing conducted upon BTI did not indicate cognitive impairment. The reasons then describe what the previous Tribunal's reasons (for the order of 27 May 2014) had concluded in relation to what BTI had informed or failed to inform Dr Z. This report however is dated 13 November 2014, after the previous Tribunal proceedings, and is described in the reasons subject of the appeal as "new evidence". The reasons do not explain the relevance of the previous Tribunal's reasons on the issue of BTI's interactions with Dr Z to a report which came into existence after those proceedings.
Then, somewhat incongruously, the reasons proceed as follows: [BTI] gave evidence in which she still maintained that the [extended family] were telling lies about [BTJ]'s management of her finances, without being able to particularise those alleged lies. It was apparent that she would have nothing said against her son [BTJ] or the way he was managing her assets. The Tribunal was not impressed by either [BTJ]'s or [OAN]'s evidence that they could not understand what was wrong with their management of the subject person's assets and finances, or liaison with Centrelink, respectively, which had resulted in a substantial over-payment of her Australian pension, apparently because false or misleading statements regarding [BTI]'s assets and other income had been made to Centrelink. Their evidence was simply not credible. Their shrugs in answer to the Tribunal's questions about the forensic accountant, [name removed for publication], exhibited a considerable naivety at best, and more likely an attempt to obfuscate the proceedings.
It is unclear as to how these paragraphs relate to determining whether BTI remained a "person in need of a guardian". It is possible that they are intended to suggest that BTI was in some way vulnerable or overborne by others, but this is not made clear.
The reasons then moved to concluding this element of the legislative test as follows: The Tribunal is satisfied that [BTI] continues to have a disability which, at least partially, prevents her making important life decisions. She is a person for whom the Tribunal could make a further guardianship order
It is clear that the Tribunal below concluded that BTI remained a "person in need of a guardian". It is not possible, however, to discern the reasoning that led to this finding of fact.
From the reasons provided, the only evidence stated to have been relied upon of relevance to the legislative test in question was the report of Dr Z. This report is summarised as concluding that testing performed did not indicate cognitive impairment on the part of BTI. Yet the Tribunal proceeded to determine that BTI had a disability and that such disability prevented her from "making important life decisions".
As quoted in [83] of these reasons, the Tribunal subsequently commented in their Reasons for Decision that they found BTI difficult to communicate with and formed the view that she did not appreciate the nature of the proceedings in which she was involved. From the reasons, it is unclear as to whether the Tribunal relied upon this conclusion in making the finding that BTI remained a "person in need of a guardian".
We conclude that the Tribunal below failed to expose the reasoning for making the finding that it did in relation to this critical point, namely, that BTI remained a "person in need of a guardian".

The second stage - the discretion to make an order and the mandatory considerations

At the time the Tribunal made the initial guardianship order for BTI, on 27 May 2014, the Public Guardian was appointed for a period of six months to make decisions for BTI about her services, access to others, and to advocate for her.
In the reasons for that order the Tribunal explained why it was persuaded to exercise the discretion under s 14(2) of the Act to make an order as follows: The Tribunal accepts that there is no need to make a guardianship order in respect of [BTI]'s accommodation, health care or medical treatment. [BTI] can make decisions for herself on these matters and a guardianship order is therefore not warranted. [Dr Z] uses a telephone interpreter service and was confident she could communicate with [BTI]. There is no evidence [BTI] has any serious medical problems that are being mistreated or ignored or that her health care is inadequate. Her accommodation is appropriate and there was no evidence to suggest otherwise. In contrast, there is evidence that [BTI] cannot make informed decisions about her access to, and relationship with, the [extended family]. While [GBE] was alive, it appears that the [extended family] and [BTI's] families were able to work together sufficiently closely to ensure that [BTI] had a good relationship with both families. After [GBE]'s death, this relationship quickly broke down, to the detriment of [BTI]. … [BTI] refuted any criticism of [BTJ] by the [extended family]. From the Tribunal's review of the evidence, it appears that some of these criticisms are justified. For the reasons outlined later, the Tribunal has concluded that [BTI]'s finances have not been managed appropriately or prudently for a number of years and this has been to her detriment. Notwithstanding this, the Tribunal is also satisfied that [BTJ] has a close and continuing relationship with his mother, he is concerned about her welfare and he has assisted her for many years. It is understandable that [BTI] is protective and supportive of him. Against this, [BTI] has had a long-standing and close relationship with members of the [extended family]. This relationship has deteriorated significantly and this has caused anguish and sadness not only for the members of the [extended family] but for [BTI] herself, who said she would like issues to be resolved. It is unlikely that the [extended family] and [BTI's] family will reconcile or that they will be able to agree on many of the matters that are currently the subject of dispute. For this reason, the Tribunal was satisfied that it would be in [BTI]'s best interests for an independent party to be appointed as guardian to make decisions about services, in particular an independent interpreting service or financial counsellor, so that [BTI] can be fully apprised of the real issues in dispute. The Tribunal is not satisfied that [BTI] is fully informed about these matters or about her potential financial exposure. The Tribunal is also satisfied that an independent party should be appointed to advocate for her in respect of her dealings with the [extended family] and [BTI's] families and consideration should be given to the appointment of an independent family mediator to assist [BTI] in making decisions about access to the [extended family]. … In this case, the Tribunal is not satisfied that [BTH] or [BTJ], both of whom were proposed as guardians, would be suitable to be appointed in respect of the decision-making functions identified. While [BTH] said that she could work with [BTJ], [BTJ] said that he could not work with [BTH]. This would make any joint appointment unworkable. There is still considerable conflict between the families and the Tribunal was accordingly of the view that it would not be in [BTI]'s interests for either or both to be appointed. This is likely to exacerbate family tension which would have a detrimental effect on [BTI] and existing family relationships. Moreover, any decision about access, services or advocacy would be likely to involve an inherent conflict if one side or the other is appointed. It is unlikely [BTH] or [BTJ] could be completely impartial or objective about these matters and this was reinforced by their respective oral and written submissions, which were adversarial in nature. As such, the Tribunal is not satisfied that [BTH] or [BTJ], while willing, would be able to properly and appropriately exercise the functions under the order. There was no other suitable private guardian identified by the parties who could undertake the role. The Tribunal therefore decided to appoint the Public Guardian. The Tribunal further decided to make the order for a period of six months, rather than a longer period, to give adequate opportunity for the Public Guardian to assist [BTI] on these matters. If these disputes cannot be resolved in this period, there may little benefit to [BTI] in lengthy orders. It is therefore appropriate to assess the utility and effectiveness of the order at the end of this period.
In those same proceedings, the Tribunal also had before it an application lodged by BTH seeking a review of the instrument appointing BTJ as BTI's enduring guardian. The Tribunal provided the following reasons for deciding to confirm that appointment: Based on all of the evidence, the Tribunal decided not to revoke the appointment of enduring guardian. There is evidence that [BTI] carefully considered the appointment of [BTJ] as her guardian, wants him to continue in this role and has a close relationship with him. The guardianship order suspends the appointment during the period of the order. If the key issue of concern, namely the perceived alienation of the [extended family] from [BTI]'s life, can be resolved or at least managed, there may be no need to disturb the appointment. As such, the Tribunal was not satisfied it would be in [BTI]'s best interests at this stage to revoke the appointment. Accordingly, the Tribunal decided to confirm the appointment, but notes that the appointment nonetheless remains suspended during the period of the guardianship order.
In the matter the subject of the appeal, having first decided that BTI remained a "person in need of a guardian", the Tribunal was then required to analyse the evidence and consider all of the mandatory considerations provided in s 14(2) of the Act to decide whether to exercise the discretion to renew or lapse the guardianship order: IF v IG & Ors [2004] NSWADTAP 3.
The Tribunal's reasons were as follows for concluding that it should not exercise the discretion to renew the order: The views of [BTI] [BTI] provided some views to the Tribunal. However, the Tribunal found it very difficult to communicate with her in any really meaningful way, as she kept repeating about the lies the other family members were telling about her son, but without being able to particularise what those lies were. She was unable, in any real sense, to appreciate the nature of the proceedings or give her views to the Tribunal. The Tribunal formed the view that she was simply parroting what someone else had told her, without being able to articulate any real concerns of her own. She either could not, or would not, answer questions from the Tribunal as to what she made of owning 33.3% of the block of units, but only receiving 14% of the net income. This confirmed for the Tribunal that she was not really taking part in the proceedings, and that what was being served up was similar to the "record of interview" produced by her solicitor on the previous occasion, namely putting her alleged concerns forward, rather than letting her respond to the Tribunal's questions. The views of [BTJ], [BTI]'s appointed enduring guardian under an Enduring Guardianship appointment in March 2006 (suspended by the guardianship order from 27 May 2014), were that his mother had her own views, it was her decision not to have contact with the [extended family], she was perfectly capable of making her own life decisions, and he had never had to make decisions for her under the appointment. He maintained that he had not tried to influence her in any way, and all he was doing was in accordance with her wishes. The Tribunal was not convinced about that evidence. It was not helped by his previous evidence that he was not prepared to act as guardian or financial manager for his mother jointly with any member of the [extended family]. The views of the Public Guardian's representative (PG) were that any access decisions the guardian would make for [BTI] would only be made with her consent, and that they would not make decisions that did not accord with her will and preferences, anyway. As to advocacy and access, the guardian had recommended to [BTH] that she should organise a family mediation through Relationships Australia in [Regional NSW], with everyone's consent, and preliminary conferences with each of the parties were about to proceed. [BTJ and OAN], however, denied ever having received a message from the [Public Guardian] to call back about anything, and said they were unaware of the recommendation to attend a family mediation. However, the guardian noted that no-one can force members of families to get on with one another, and that this still relies upon the goodwill of the parties. As to each of the access, advocacy and services functions of the Order, the guardian recommended that the Order should lapse, as there was little else they could do. The views of the original applicant for the guardianship order. [BTH] asked a pertinent question of the guardian, as to what the condition in paragraph 6 in the Order meant, as the guardian had apparently given up on attempts to make physical contact with [BTI] after one or two visits. Paragraph 6 of the Order provided: "6. The condition of this order is: In exercising this role the guardian shall take all reasonable steps to bring [BTI] to an understanding of the issues and to obtain and consider her views before making significant decisions." [BTH] was concerned that she had received nothing from the Public Guardian (PG), and maintained that it was for the PG to decide what access, and under what conditions access should be granted, to their grandmother. Until the issues in the proceedings and the allegations were properly explained to [BTI], how can the PG make a decision that they can do nothing about access by the [extended family]? The guardian reiterated that they would not make such a decision without it being what [BTI] wanted, and that the issue was a family dispute, and was not really suitable for a guardianship order. They were not in a position to make [BTI] agree to anything. Are there decisions which need to be made by a guardian? The Tribunal was satisfied that [BTJ] was an enduring guardian under his mother's appointment of him in March 2006, may be the "person responsible" for [BTI] under the Guardianship Act and may give a valid consent for any major or minor medical or dental treatment that she may require. The Tribunal was satisfied that there was no evidence to suggest that [BTJ] would not act in his mother's best interests when acting as her guardian or "person responsible" in matters affecting her healthcare and other needs. Further, the Tribunal accepted the PG's evidence and recommendation, and was satisfied that there were no other decisions that needed to be made by a guardian. The Tribunal decided on the basis of all of this evidence that a further guardianship order should not be made.
The appellant submitted that the Tribunal failed to provide reasons or adequate reasons for determining that the guardianship order should lapse (Ground 2).
The manner in which the reasons elaborate upon the respective parties' views illustrate the Tribunal was appraised of the views of the parties. These views were divergent in critical areas. However, the reasons do not then proceed to engage in a process of balancing these views to explain how they did, or not, influence the Tribunal to conclude, as they ultimately did, that the order should lapse.
The Tribunal states that it accepted the evidence and the recommendations of the Public Guardian. The reasons do not, however, provide any analysis of that evidence on the part of the Tribunal.
A critical issue in dispute in the review proceedings was whether the Public Guardian had in fact taken appropriate steps during the term of the order to comply with the order. The findings at the time the original order was made were that BTI could not make informed decisions about her access to, and relationship with, the appellant and her family, and as a result, that the appointment of an independent guardian was in her best interests to facilitate requisite services to allow BTI to be fully apprised of the issues in dispute within the family. It was therefore incumbent on the Tribunal, in conducting the review, to make an assessment of the activities of the appointed guardian during the term of the order. No such assessment is provided in the reasons. Such an assessment was required to allow transparency as to why the Tribunal elected to lapse the order as opposed to other options, such as the possibility of renewing the order, or renewing and varying the order.
The reasons acknowledged the pertinence of matters raised by the appellant as to the role the appointed guardian played and whether the role was in compliance with the orders and conditions made on 27 May 2014. Despite this acknowledgment, the reasons do not explore the adequacy or otherwise of the appointed guardian's activities. This was pivotal to explain the reasoning process behind the decision to allow the order to lapse.
Apart from the evidence of the Public Guardian, other findings outlined in the reasons could be viewed as leading the Tribunal to conclude to exercise their discretion to renew the order. The Tribunal made findings that BTI was not expressing her own views in the hearing, but rather was "parroting what someone else had told her". It also made a finding that BTJ's evidence that he did not influence his mother's decision making was not credible. However, the reasons then state that there was no evidence to suggest BTJ would not act in his mother's best interests and concludes that "on the basis of all of this evidence that a further guardianship order should not be made".
The appellant also submitted that the Tribunal failed to provide reasons or adequate reasons for finding that there was no evidence to suggest that BTJ would not act in his mother's best interests when acting as her guardian (Ground 4) and finding that there were no other decision that needed to be made by a guardian (Ground 6).
We saw these two grounds as challenging the adequacy of the reasons in relation to the mandatory requirement that the Tribunal consider the practicability of services being provided to BTI (s 14(2)(d) of the Act), or in other words, whether BTI needed a guardian because she may be able to receive all necessary services without a Guardian: IF v IG & Ors [2004] NSWADTAP 3.
On 27 May 2014, the Tribunal ordered that the instrument which appointed BTJ as BTI's enduring guardian be confirmed. In doing so, the Tribunal explained in it is reasons that: The guardianship order suspends the appointment during the period of the order. If the key issue of concern, namely the perceived alienation of the [appellant's extended family] from [BTI]'s life, can be resolved or at least managed, there may be no need to disturb the appointment.
Such reasons effectively placed the Tribunal conducting the review of the order on notice that a live factor for consideration would be whether matters of family dispute had been resolved or managed, and if not, given lapsing the order would remove the suspension of the instrument appointing BTJ as his mother's enduring guardian, what impact this would have upon BTI?
The order that the Tribunal was tasked to review provided authority to BTI's appointed guardian to make decisions as to her services, access to others, and to advocate for her.
The Tribunal's reasoning provides no conclusion that BTI was now in a position to make decisions for herself in these domains, but concludes that BTJ was his mother's enduring guardian and may be her "person responsible" as defined in the Act. The reasons do not, however, provide any examination as to the powers of BTJ as enduring guardian under the terms of the instrument. The reasons do not provide any analysis of how BTJ might conduct the role as his mother's guardian. Given the basis for the previous appointment of an independent guardian, it was incumbent upon the Tribunal to provide its reasoning as to why it was satisfied that BTI could receive all services in question without renewal of the order. If the Tribunal was satisfied that to lapse the order was in BTI's best interests and would otherwise accord with the Tribunal's duties to observe the principles in s 4 of the Act, it needed to explain the evidence upon which it relied to reach a point of such satisfaction.
We are satisfied that Grounds 2, 4, and 6 are made out. Whilst the Tribunal below was not obliged to spell out every detail of the process of reasoning of reaching each finding, it was essential to expose the reasons for resolving points critical to the contest between parties. The Tribunal's reasons for deciding to lapse the guardianship order were inadequate. Whilst some relevant findings were made, the reasons do no explain how the findings led the Tribunal to conclude that the order should lapse. There was insufficient engagement by the Panel to examine and evaluate the evidence in light of the task it had to perform in conducting a review of the order: Lafu v Minister for Immigration and Citizenship [2009] FCAFC 140, [47]-[49]

Grounds 1, 3, and 5 - "Errors in the application of the law and errors in findings"

The appellant argued that the Tribunal erred in applying the law in making its determination to lapse the guardianship order because it failed to apply the mandatory factors required under s 14 of the Act. It was also argued that the Tribunal made errors in its fact finding, illustrating that it had gone about its fact finding in an unorthodox manner or in a way to produce an unfair result.
The submissions filed by the appellant in support of these grounds of appeal were largely one in the same as the submissions made in relation to grounds 2, 4, and 6 relating to inadequacy of reasons.
We have examined the submissions which focus on the grounds relating to inadequacy of reasons and have concluded that those grounds are made out. It is therefore unnecessary for us to conclude grounds 1, 3, and 5 which are framed on the same subject matter upon which we have concluded the Tribunal below fell into error.

Grounds 8 and 10 - "Lack of procedural fairness"

The appellant submitted that the Tribunal erred in denying the appellant procedural fairness by dismissing her application to be legally represented, and that the Tribunal erred in not ensuring that BTI understood the proceedings.
Counsel for the appellant conceded that these grounds of appeal were secondary grounds and did not elaborate upon the written submissions provided in advance of the hearing.
Apart from citing Caselaw as to the Tribunal's duties to accord procedural fairness to parties to proceedings, the only submissions on these grounds from the appellant were: It is submitted that the transcript of the hearing reveals that [BTI] does not fully understand the proceedings. The Tribunal did not discharge its obligation under s 38(5)(a). This is also in a setting where [BTI] is represented by Walsh & Blair Lawyers. It is a matter of record that Walsh & Blair Lawyers have acted for both [BTI] and [BTJ]. There was also a lack of procedural fairness afforded to the appellant as she had not read at the hearing, and still has not read, the report of the Public guardian.
BTJ disputed these grounds noting that: none of the parties to the proceedings, the subject of the appeal, were granted leave to be legally represented; BTI did not support the ground of appeal relating to whether she was accorded procedural fairness; and submitting there was no evidence before the Appeal Panel one way or the other as to whether BTI had read the report of the Public Guardian.
From the lack of submissions made in support of these grounds, the Appeal Panel did not consider that they were seriously pursued by the appellant and we were not satisfied that these grounds were made out.

Disposal of appeal

We have concluded that the Tribunal below provided inadequate reasons for the decision to lapse the guardianship order pertaining to BTI. The authorities note that where an appellate body concludes that the primary decision maker has failed to give adequate reasons, the appellate body has discretion whether or not to direct a new hearing. If, despite the inadequate reasons, only one conclusion is available, a new hearing may not be necessary (Pollard v RRR at [67], and citations therein).
In our view, the evidence that was before the Tribunal below cannot be characterised as only permitting one conclusion. There was contradictory evidence and views before the Tribunal in relation to whether BTI was a "person in need of a guardian" and also in respect of the mandatory considerations in s 14 of the Act. This evidence required transparent evaluation in the reasons. Such evaluation could have led the Tribunal to conclude that the order should lapse, as it did. However, it could also have led to a determination to renew the order, either in the terms expressed, or with variations.
Accordingly, the appeal is allowed.
We note that we had indicated at the hearing conducted on 14 July 2015 that we were minded to allow the appeal and proceed to determine the appeal by way of a new hearing as permitted by s 80(3)(a) of the CAT Act. We were minded to take that course of action at that time because we were sitting in a regional NSW location which meant BTI was present and able to participate.
However, at the request of the parties, we made no orders on the appeal on that day other than to adjourn the proceedings. As a result of a number of intervening factors, unfortunately nearly 18 months have gone by since that hearing. We are of the view that there is no longer any efficacy in the Appeal Panel proceeding to deal with the matter by way of a new hearing. It is appropriate that the matter be remitted to the Guardianship Division of the Tribunal to be determined with the availability of contemporaneous evidence.

Orders

We make the following orders: 1. The application by BTJ seeking an order that the proceedings be permanently stayed is dismissed. 2. In proceedings BTH v The Public Guardian (AP 15/05027), the appeal is allowed. 3. The following orders of the Guardianship Division of the Tribunal made on 21 November 2014 are set aside but not until such time as the Guardianship Division re-determines the review of the guardianship order made by the Tribunal on 27 May 2014 appointing the Public Guardian of NSW as BTI's guardian: 1. The Guardianship Order concerning BTI made on 27 May 2014 (Matter No: 2013/7807) is to lapse; and 2. The Guardianship Order is revoked for any remaining period of the order. 1. The review of the order made by the Tribunal on 27 May 2014 appointing the Public Guardian of NSW as BTI's guardian is remitted to the Guardianship Division of the Tribunal for determination in accordance with law with parties permitted to file new and contemporaneous evidence.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar 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: 16 January 2017

At a glance

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Judgment (24 paragraphs)

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Legislation Cited (4)

Cases Cited (26)

Cited By (7)