NSW Land and Housing Corporation v Diab

NCAT Guardianship|2014-05-14|Before: Redfern J

WHAT THE TRIBUNAL DECIDED 1The Tribunal dismissed the application by Mrs KLC to set aside/vary the decision of the Tribunal made on 29 January 2014.

BACKGROUND 2Mrs CMT is a 91-year-old widow with Alzheimer's disease, who has been a permanent resident of a nursing home in South-Eastern Sydney for a number of years. Prior to this Mrs CMT was living with her husband of over 40 years, Mr IMT, in their home in Eastern Sydney. Mrs CMT has three grandchildren: Mrs KLC, Ms LQT and Mrs NNT. Mr IMT died on 15 May 2013. Mrs KLC is a beneficiary of his estate and her husband, Mr BOC, is the executor. 3The estate of Mrs CMT has been under financial management since 23 September 2009. It is common ground that there has been a long-standing conflict between Mrs KLC and Mrs NNT, evidenced in part by the competing applications made by them in 2009 for the appointment of a guardian and financial manager for Mrs CMT. These applications resulted in Mrs CMT's estate being committed to the NSW Trustee and Guardian for management. 4On application made by Mrs KLC, the Tribunal reviewed the financial management order on 14 January 2011 and revoked the appointment of the NSW Trustee and Guardian, appointing Mrs KLC as Mrs CMT's private financial manager. 5On 26 July 2013, Mrs NNT made an application to the New South Wales Guardianship Tribunal to revoke Mrs KLC's appointment on the grounds, amongst other things, that Mrs KLC had a conflict of interest in acting as financial manager by reason of her interest as a beneficiary of Mrs CMT's estate. 6Pursuant to the Civil and Administrative Tribunal Act 2013 (NSW) (the CAT Act), on 1 January 2014 the New South Wales Guardianship Tribunal was abolished and the Civil and Administrative Tribunal of New South Wales (the Tribunal) was established. The Tribunal comprises a number of Divisions, including the Guardianship Division. In summary, the power and functions of the former Guardianship Tribunal under enabling legislation in existence at the time it was abolished have been conferred on the Tribunal and allocated to the Guardianship Division. While the application to revoke Mrs KLC's appointment was commenced in the Guardianship Tribunal, it was heard in the Guardianship Division of this Tribunal on 29 January 2014 under the transitional provisions of the CAT Act. 7The Tribunal revoked the appointment of Mrs KLC as financial manager on the day of the hearing and committed Mrs CMT's estate to the NSW Trustee and Guardian. Mrs KLC did not attend the hearing. 8In its Reasons for Decision, the Tribunal noted that Mrs CMT owed $195,000 in respect of the unpaid portion of an accommodation bond and interest was accruing on this debt. Mr IMT had been paying the interest on the debt until his death but had made no provision for the ongoing payment of the interest, or for Mrs CMT more generally, under the terms of his Will. While Mrs KLC had proposed an 'interest-free loan' from Mr IMT's estate to pay the debt, this did not proceed and interest was being paid from Mrs CMT's savings. While the Tribunal accepted Mrs KLC had been proactive in investigating the possibility of an interest free loan in order to meet Mrs CMT's financial commitments, it found Mrs KLC had not taken "what would be regarded as reasonable steps to investigate other avenues such as a claim under the Family Provisions Act," seeking further provision for Mrs CMT. The Tribunal was satisfied that "the conflict Mrs KLC has a beneficiary until under her late grandfather's Will precludes her from continuing as her grandmother's financial manager." 9On 4 February 2014, Mrs KLC applied to have the decision of 29 January 2014 set aside. The application was opposed by Mrs NNT. 10The application was heard on 14 May 2014 and the parties and persons who participated in the hearing are set out in Appendix A. [appendix removed for publication]

STATUTORY FRAMEWORK AND ISSUES FOR DETERMINATION 11Section 90 of CAT Act provides that the Governor may make regulations for or with respect to any matter "that is necessary or convenient to be prescribed for carrying out or giving effect to this Act". 12The Civil and Administrative Tribunal Regulation 2013 (the CAT Regulation) was made on 20 December 2013 with effect from 1 January 2014, amended on 7 February 2014. Relevantly, subcl 9(1) provides as follows: In addition to any power that is expressly conferred on the Tribunal by the Act or enabling legislation to set aside or vary its decisions, the Tribunal may order that a decision it has made that determines proceedings be set aside or varied in either of the following circumstances: (a) if all of the parties to the proceedings have consented to the making of the order to set aside or vary the decision; (b) if the decision was made in the absence of a party and the Tribunal is satisfied that the party's absence has resulted in the party's case not being adequately put to the Tribunal. 13The Tribunal must not make an order under subcl 9(1) unless the Tribunal has "first afforded the parties an opportunity to make submissions about the proposed order and taken any such submissions into account" (subcl 9(4)). 14As the proceedings which are the subject of this application for set aside were commenced in the Guardianship Tribunal prior to 1 January 2014, it is necessary and relevant to consider the effect of the transitional provisions of the CAT Act to determine whether there is jurisdiction to deal with this application. 15The savings and transitional provisions are contained in Schedule 1 of the CAT Act (the transitional provisions). Division 3 deals with "Proceedings concerning the abolished existing Tribunals." 16The application to revoke the appointment of Mrs KLC as financial manager is a "pending proceeding" within the meaning of Division 3 of Schedule 1 because it was commenced before 1 January 2014 but was not finally determined before the Tribunal was established (subcl 6(1) of Schedule 1). Where proceedings had been commenced and the hearing begun but not determined prior to the commencement of the establishment of the Tribunal, the proceedings are "part heard." Where the hearing of such proceedings has not begun, the proceedings are "unheard." There is no contest that the application to revoke the appointment of Mrs KLC was an "unheard proceeding." 17Clause 7 of Schedule 1 provides that unheard proceedings in an existing Tribunal are taken to have been commenced in the Tribunal and may be heard and determined instead by this Tribunal. Subclause 7(3) provides: For the purposes of subclauses (1) and (2): (a) NCAT has and may exercise all the functions that the relevant existing Tribunal had immediately before its abolition; and (b) the provisions of any Act, statutory rule or other law that would have applied to or in respect of the proceedings had this Act and the relevant amending Acts not been enacted continue to apply. 18Given Mrs KLC is seeking to set aside a decision made in respect of pending proceedings, the question arises as to whether the rights created by cl 9, which are essentially 'review' rights after proceedings have been determined, are available to Mrs KLC. 19To resolve the issue of whether the Tribunal has jurisdiction to hear this application, it is necessary to determine the legislation that governs the review rights of pending proceedings. If the review rights are governed by the legislation in operation before the CAT Act, the Tribunal would not have jurisdiction to entertain an application to set aside a pending proceeding. If the review rights are governed by the CAT Act, Mrs KLC would be entitled to make an application to set aside or vary the decision made on 29 January 2014 and the Tribunal would therefore have jurisdiction to consider this application. 20If the Tribunal does have jurisdiction to determine this application, the discretion under cl 9 of the CAT Regulation can only be enlivened and orders made if all of the parties consent to the decision the subject of the application being set aside or varied or if the decision was made in the absence of a party and the Tribunal is satisfied that the party's absence resulted in their case not being adequately put to the Tribunal. In this matter, all of the parties do not consent. Mrs NNT opposes, Mrs CMT does not consent, nor does she have capacity to do so. The NSW Trustee and Guardian neither opposes nor consents. The decision cannot be set aside or varied on this basis and the only ground available is under subcl 9(1)(b), namely, the absence of Mrs KLC. 21Thus, the issues for determination in this application are as follows: (a)Does the Tribunal have jurisdiction to hear and determine the application to set aside or vary the decision made on 29 January 2014 revoking Mrs KLC's appointment and appointing the NSW Trustee and Guardian? (b)Was the decision made in the absence of Mrs KLC? (c)Did Mrs KLC's absence result in her case not being adequately put to the Tribunal? (d)Should the discretion under cl 9 be exercised in the circumstances of the case and, if so, should be decision be set aside or varied? 22The questions referred to in (b) to (d) will only arise if the Tribunal has jurisdiction. The issue in (d) will only be relevant if the threshold issues set out in (b) and (c) have been established. 23Mrs KLC did not attend the hearing but participated by telephone. Mrs NNT did not attend the hearing nor did she participate by telephone but provided written submissions to the Tribunal prior to the hearing. Mrs NNT was contacted at the commencement the hearing to facilitate her involvement but said she did not wish to be further involved and would rely on her written submissions. She nonetheless confirmed that she opposed the application and would leave the matter to the Tribunal to determine. Mr BOC attended the hearing in person. The representative from the NSW Trustee and Guardian, participated by telephone. 24Notices were served on the parties notifying of the hearing by letter dated 29 April 2014. 25 Prior to the hearing, Tribunal officers attempted to contact Mrs CMT to obtain her views about the application. It was reported that Mrs CMT was unable to express her views and had difficulties in communicating. The parties agreed Mrs CMT would be unable to participate because of her disabilities. As such, the hearing proceeded in the absence of Mrs CMT and Mrs NNT.

SUBMISSIONS OF THE PARTIES 26Mrs KLC is the applicant and was a party to the application for the revocation of her appointment as financial manager. The other parties to this application, who were parties to application for revocation, are Mrs CMT, the NSW Trustee and Guardian and Mrs NNT, being the person who requested the revocation. 27At the commencement of the hearing, the Tribunal raised with Mrs KLC the issue about whether the Tribunal had jurisdiction to hear her application. It was indicated that, unless Mrs KLC wished to make submissions to address the issue, the Tribunal would hear the application, subject to its determination about jurisdiction. Mrs KLC was in agreement with this approach. The Tribunal did not receive any submissions from Mrs NNT on question of jurisdiction. 28The NSW Trustee and Guardian provided a report to the Tribunal dated 8 May 2014 but it did not make submissions on the application. The Tribunal did not receive any submissions from Mrs CMT and, for the reasons previously outlined, Mrs CMT did not take an active role in the proceedings. 29In her email application dated 4 February 2014, Mrs KLC submitted that the representative of the NSW Trustee and Guardian who participated in the hearing on 29 January 2014 did not have all relevant documentation sent to him before the hearing, could therefore not fairly express a view on the application and had subsequently expressed the view that the outcome may have been different if he had received the information. It was in the best interests of Mrs CMT to have the decision set aside so that the NSW Trustee and Guardian could have the opportunity to review accounts submitted by her. 30After reviewing the Tribunal's Reasons for Decision in respect of the order made on 29 January 2014, Mrs KLC made a submission dated 6 April 2014 to the effect that she had sought advice about making a claim for Mrs CMT against the estate of Mr IMT and while she "had no objection to now ceasing this role as the FM," she wanted to "clear her name as having a conflict of interest in this role." 31In a further email submission to the Tribunal dated 6 May 2014, Mrs KLC advised that she was "not challenging the revocation of her appointment as financial manager for Mrs CMT" and stated that "the sole purpose of asking for the decision to be set aside is to clear my name." Mrs KLC submitted that she had attempted to make enquiries of her lawyer about the option of making a claim for Mrs CMT and she had been advised there would be little utility and such a claim would be costly. Mrs KLC stated that she did not attend the hearing on 29 January 2014 because she was "very concerned about potential animosity" from Mrs NNT and her husband. Mrs NNT was acting in her own self-interest by wanting a claim to be made against Mr IMT's estate on behalf of Mrs CMT because she had an acrimonious relationship with Mr IMT, was not a beneficiary of Mr IMT's estate and, given she was probably a beneficiary of Mrs CMT's estate, was seeking to advance her own position. It should be noted that the submissions made by Mrs KLC in her email dated 4 February 2014 did not address or satisfy the grounds to set aside or vary a decision under cl 9. As such, Mrs KLC did not press those submissions at the hearing of her application. 32Given Mrs KLC had stated in her written submissions she was not challenging the revocation of her appointment and simply want to clear her name, the Tribunal sought to clarify at the outset of the hearing the orders she sought. In particular, it was noted it was not open to the Tribunal to amend the previous Tribunal's findings. Mrs KLC nonetheless stated she wished to proceed with her application. She said she wanted the decision to be set aside so there could be a rehearing, at which she may request to be allowed to step down. 33Mrs NNT provided written submissions to the Tribunal by email dated 5 May 2014. Mrs NNT submitted that Mrs KLC had ample opportunity to prepare for the last hearing, Mr BOC attended the hearing to represent Mrs KLC and there was no valid reason why Mrs KLC had not attended the hearing. She and her husband had attended the hearing, which had been three hours in duration. The hearing was extremely stressful but the decision had been made and she opposed any attempt by Mrs KLC for a "rehashing of the issues at another hearing." 34As already noted, the NSW Trustee and Guardian made no submissions in respect of the application but lodged a report shortly before the hearing. The report noted that the NSW Trustee and Guardian had made a referral to its legal branch to consider whether an application should be made on behalf of Mrs CMT against the estate of the late Mr IMT. At the hearing, the representative of the NSW Trustee and Guardian advised that the limitation period for filing such an application was 15 May 2014 and an application had in fact been filed on Mrs CMT's behalf.

Does the Tribunal have jurisdiction to determine the application? 35Mrs NNT's application to revoke the appointment of Mrs KLC as financial manager was commenced in the Guardianship Tribunal. By reason of the subcl 7(1) of Schedule 1 of the CAT Act this application was taken to be commenced in the Tribunal and under subcl 7(3)(a), the Tribunal was empowered to exercise all the functions the Guardianship Tribunal had before its abolition. Relevantly, the Guardianship Tribunal did not have the power to set aside or vary its decisions prior to its abolition. This right was created by regulation made under the CAT Act. 36The jurisdiction of the Tribunal is not at large and is set out in s 28 of the CAT Act. Section 28 provides that the Tribunal has "such jurisdiction and functions as may be conferred or imposed on it by under the Act or any other legislation." The Tribunal has four heads of jurisdiction, including "general jurisdiction," which is defined in s 28 of the CAT Act. The other three heads of jurisdiction are not relevant to this application. Section 29 provides that the Tribunal has general jurisdiction over a matter if legislation, other than the CAT Act, enables the Tribunal to make a decision or exercise other functions. 37The Tribunal is only able to make decisions or exercise the functions in respect of pending proceedings because of the provisions of Schedule 1 of the CAT Act. There is an argument the Tribunal does not have power to exercise functions under the CAT Act, and thereby under cl 9 to set aside or vary the decision to revoke Mrs KLC's appointment, because the decision was made under the transitional provisions. As such, the Tribunal would be confined to the exercise of powers and functions authorised by those provisions, namely, the functions that the Guardianship Tribunal had immediately before its abolition, which did not include the power to set aside or vary its decisions. 38To determine this question, it is necessary to consider the operation and effect of cl 7 of Schedule 1 and the nature of the Tribunal's jurisdiction in respect of pending proceedings. These issues were considered by the Appeal Panel of the Tribunal in NSW Land and Housing Corporation v Diab [2014] NSWCATAP 8 (Diab), and applied in Owners Corporation SP 76269 v Draybi Bros Pty Ltd [2014] NSWCATAP 9. 39Diab concerned an application to the Appeal Panel of this Tribunal against a decision of the Consumer and Commercial Division made under the transitional provisions of the CAT Act. The question for determination was whether subcl 7(3) applied only to the determination of proceedings or whether it also governed appeal rights in relation to any decision in those proceedings. If it did not govern appeal rights, a further question arose as to whether the Appeal Panel had jurisdiction to hear and determine the appeal under the CAT Act. 40The Appeal Panel (Wright J, President, Hennessy LCM, Deputy President and Senior Member Meadows) concluded that subcl 7(3)(b) did not govern the appeal rights of pending proceedings and at [31] "the preferable construction of subcl 7(3) is that it is limited in its operation to the determination of the part heard and unheard proceedings." Subclause 7(3) was concerned with the operation of subcll 7(1) and (2), which provided the mechanism by which proceedings commenced in an abolished Tribunal can be determined by the Tribunal if they have not been determined by the abolished Tribunal before its abolition. According to the Appeal Panel, when proceedings had been determined under subcll 7(1) or (2), subcl 7(3) should have "no further role to play." Subclause 7(3) therefore did not limit the Tribunal to the functions that could be exercised by the abolished Tribunal immediately before it was abolished once the proceedings have been determined. 41Furthermore, the Appeal Panel held it had jurisdiction to determine the matter because the first instance decision was an "internally appealable decision" under s 32 of the CAT Act, being an appeal from a general decision within the meaning of s 29 in respect of which the Tribunal had general jurisdiction. While the decision depended on the transitional provisions, the Residential Tenancies Act 2010 (NSW) enabled the Tribunal to make the decision or exercise the functions. The first instance decision was therefore a general decision made in exercise of the Tribunal's general jurisdiction. The following finding of the Appeal Panel at [50] is apposite: ....... s 29 should not be construed as establishing that a decision in a matter would be a "general decision" only if no provisions in the Act or the procedural rules were necessary ingredients in NCAT's being able to make decisions or exercise other functions in respect of the matter. Such a construction would have the unsatisfactory consequence that very few if any decisions of NCAT could be "general decisions." This would be inconsistent with the scope and purpose of s 29 in particular and the Act as a whole. 42We are bound by the decision of the Appeal Panel in Diab. In our view, the reasoning in Diab applies equally to an application to set aside or vary a decision, which has already been determined by the Tribunal under the transitional provisions. We therefore find that the Tribunal has general jurisdiction to hear this application under cl 9 of the CAT Regulation and is not confined to exercising the functions of the Guardianship Tribunal had immediately before its abolition.

Was the decision made in the absence of Mrs KLC? 43Mrs KLC was sent written notice of the hearing listed on 29 January 2014 but declined to attend, either in person or by telephone. This is not in contest. By letter dated 6 December 2013, Mrs KLC notified the Tribunal she would not be attending the hearing and further stated she would "not be contesting the replacement of me as manager by a NSW Trustee and Guardian." By letter dated 9 January 2014, received by the Tribunal on 14 January 2014, Mrs KLC provided a final submission, which she noted Mr BOC would bring to the hearing. 44Mr BOC attended the hearing on 29 January 2014. He was not attending as Mrs KLC's agent or representative. There were no formal orders to this effect, although it is apparent from the reasons that Mr BOC made representations and gave evidence in support of Mrs KLC's submissions. 45Notwithstanding Mr BOC's attendance, it could not be said that Mrs KLC was 'present' through the representation of Mr BOC. He attended as a witness, not as a representative, and according to evidence he gave in this application, he had a limited role. We accept this evidence. As such, we are satisfied Mrs KLC was absent from the hearing on 29 January 2014.

Did the absence of Mrs KLC result in her case not being adequately put to the Tribunal? 46To enliven the discretion to set aside or vary a decision under cl 9, the Tribunal must first be satisfied that the party's absence from the hearing resulted in the party's case not being adequately put to the Tribunal. As such, there are two threshold matters to be satisfied. First, it must be established that the party's case was not adequately put to the Tribunal and secondly it must be established that this resulted from the party's absence. There must be a direct causal connection between the party's absence and the party's case not being adequately put. 47In this case, Mrs KLC's absence was intentional. There was no denial of procedural fairness. She was given the opportunity to participate in the hearing on 29 January 2014 and provided detailed written submissions to the Tribunal before the hearing. Mrs KLC could have participated in the hearing by telephone if she was concerned about attending in person. She conceded this at the hearing. 48A question therefore arises as to whether the fact Mrs KLC was afforded procedural fairness is relevant to, or impacts on, the threshold issue of whether her absence resulted in her case not being adequately put. 49In our view, it does not. While this may be a relevant consideration in the exercise of the discretion for the reasons we later explain in more detail, the terms of cl 9 are clear. This provision is to be contrasted to the rehearing rights previously available to parties under the provisions of s 68 of the Consumer, Trader and Tenancy Tribunal Act 2001 (NSW), now repealed, which were in place prior to 1 January 2014. It is useful to analyse the distinction to understand the scope of cl 9. Section 68 was in broad terms. As noted by White J in Kyriakou v Long [2013] NSWSC 1890 at [23], s 68 provided a procedure by which the chairperson of the Consumer Trader and Tenancy Tribunal could order a rehearing of proceedings if satisfied that the applicant for a rehearing may have suffered a "substantial injustice on the grounds, amongst others, that the decision of the Tribunal in the completed proceedings was not fair and equitable." Determination of this issue necessarily involved consideration of whether there had been procedural fairness, although this was not found to be determinative in Kyriakou. 50Clause 9 of the CAT Regulation is drafted differently, we assume intentionally so, to direct attention to the narrow threshold issue of whether the absence of the party resulted in the party's case not being adequately put. It does not expressly invite consideration of whether there has been procedural fairness, although if the party's absence has been caused by a failure of the Tribunal to afford procedural fairness, it would generally follow that this failure, resulting in the absence, will also result in the party's case not being adequately put. While this may ultimately be relevant to the issue of whether the discretion should be exercised in favour of an applicant, it does not limit the threshold consideration. The question of whether a party's case was "adequately put" is similarly not affected by whether or not the party was given the opportunity to put their case. 51As such, the question before the Tribunal was whether Mrs KLC's absence resulted in her case not being adequately put to the Tribunal on 29 January 2014, not whether she was afforded procedural fairness. 52Mrs KLC contended that her absence did result in her case not being adequately put before the Tribunal on 29 January 2014 because of two issues, which were raised in the Tribunal's Reasons for Decision. The first issue was the finding of the Tribunal (at page 10) based on the letter dated 30 July 2013 and evidence from Mr Avery of the NSW Trustee and Guardian that the interest-free loan had been approved. The second was the finding (at page 11) that Mrs KLC had not taken what the Tribunal regarded as "reasonable steps" to investigate other avenues to make provision for Mrs CMT given the loan had not proceeded, such as a claim against the estate of Mr IMT. Mrs KLC contended that if these matters had been discussed with her at the hearing, she would have provided evidence to the Tribunal to correct these matters so that the findings would not have been made and "we wouldn't be here." 53On the first issue, Mrs KLC contended that the NSW Trustee and Guardian's approval of the loan was conditional on obtaining the views of any living beneficiaries of Mrs CMT. Had this issue been raised with her, she would have advised the Tribunal this could not be obtained because she could not locate Mrs CMT's last known Will. The Tribunal would have thereby been aware that the loan did not proceed for reasons outside her control. 54On the second issue, Mrs KLC said she would have advised the Tribunal about the enquiries she had made of her lawyer about whether there was a claim that could be made for Mrs CMT against the estate of her late husband. This may have impacted on the finding of conflict. 55To assess whether Mrs KLC's case was "adequately put" it is necessary to identify what her case was at the time, not a rearticulated or different case having the benefit of the previous Tribunal's Reasons for Decision. Mrs KLC's case was set out in her submissions of 6 and 10 December 2103 and 9 January 2014. In summary, her case was that had she provided information to Mrs NNT, there was no conflict of interest because she attempted to arrange an interest-free loan, Mrs CMT's financial estate was "solid" and there was no evidence of mismanagement, she had no improper involvement with Mrs CMT's Will and while she had no objection to an independent financial manager being appointed, it would add to costs and delays and may not be in Mrs CMT's best interests. Having regard to these submissions, it is our view that the two issues identified by Mrs KLC were broadly part of Mrs KLC's case. 56The second consideration is whether Mrs KLC's case was adequately put, particularly having regard to her submissions, the issues and information before the Tribunal and the Tribunal's findings. 57In support of her application to set aside or vary the decision regarding the first issue, Mrs KLC referred to the letter from the NSW Trustee and Guardian dated 30 July 2013. This letter noted that the NSW Trustee and Guardian had no objection to the proposed loans subject to three conditions, one of which was obtaining the views of any living beneficiaries of Mrs CMT. This letter was before the Tribunal and in her submission of 6 December 2013 Mrs KLC addressed the issue of the loan and what she referred to as the "untenable request" by the NSW Trustee and Guardian to obtain the views of the beneficiaries of Mrs CMT's estate. 58In support of the second issue, Mrs KLC provided a letter from Mr Z of a law firm dated 8 April 2014 confirming that Mrs KLC had raised the issue of a possible claim against the estate with him and he had provided advice. The advice was to the effect that the prospects of commencing such proceedings were not good and would be costly. Mrs KLC said she obtained this advice at the time Mrs NNT raised the issue, which would have been about the time of Mrs NNT's application for revocation. According to Mrs KLC, this evidenced the fact she had taken "reasonable steps" to investigate other avenues when it became clear the interest-free loan would not proceed. If she had been at the hearing when this was raised, she would have advised the Tribunal about this advice and the Tribunal would not have concluded she had failed to take "reasonable steps." 59Mrs KLC did not provide any information about investigations made by her about alternative provisions that could be made for Mrs CMT given the interest-free loan had not proceeded. Nor did she refer to any advice obtained from her lawyer about this issue. When asked about this at the hearing of this application, Mrs KLC said this was "an oversight" that she could not explain. 60We are not satisfied Mrs KLC's absence impacted, significantly or at all, on her case about the loan being adequately put. The meaning of "adequately," as defined by the Macquarie Dictionary (6th Edition), includes "equal to the requirement or occasion; fully sufficient." It was clear from Mrs KLC's submissions dated 6 December 2013 that the loan was not approved and that she was of the view that this was the NSW Trustee and Guardian's doing, not hers. This would have also been apparent from the letter of the NSW Trustee and Guardian. This information was before the Tribunal and was not affected by Mrs KLC's absence. There is no suggestion the Tribunal did not have regard to this information and the fact that the Tribunal accepted the evidence of Mr Avery that the loan had been approved, is not inconsistent with Mrs KLC's submission that the approval was condition and did not proceed. Ultimately, and on a fair reading of the decision, the issue that concerned the Tribunal was about the investigation of a possible claim against Mr IMT's estate because the loan had not proceeded, not about the loan or the reason it did not proceed. As such, this issue was irrelevant to the outcome and, even if we had been satisfied the threshold issue to enliven cl 9 was established in respect of this issue, we would not have exercised the discretion in Mrs KLC's favour on this issue alone. 61The second issue of whether Mrs KLC's absence resulted in her case about her investigations not being brought to the attention of the Tribunal, and therefore, not being adequately put, is more difficult. It is somewhat complicated by the fact that Mrs KLC, who was on notice of Mrs NNT's contention that a claim should be made against Mr IMT's estate, did not address this in any of her submissions. She did not provide any information about investigations made by her about alternative provisions that could be made for Mrs CMT given the interest-free loan had not proceeded. Nor did she refer to any advice obtained from her lawyer about this issue. She rejected the claim that she had a conflict of interest and stated as follows: However, just because my late grandfather named me as a beneficiary in his Will, does not preclude me from acting in my grandmother's best interests. 62Why Mr BOC did not raise this at the hearing of the application for revocation and why Mrs KLC did not raise it in her submissions is puzzling. When questioned about this, Mrs KLC said this was "an oversight" because she had so much material. However, it was clear from Mrs KLC's evidence during this application, that she did not understand how a conflict may arise in these circumstances. On one view, Mrs KLC's case in defence of the application for revocation did not include information about the investigations she had made to explore alternative claims because she did not appreciate the significance of this to the question of conflict. In other words, she may not have raised this at the hearing even if she had been present. While it is difficult to speculate, cl 9 requires the decision-maker to make an assessment about the causal connection between a party's absence and how the party's case was argued at the hearing. There is a degree of speculation about what would have happened at the hearing. 63Despite this, in our view it is not helpful to take a narrow approach to a beneficial provision. While the provision requires that there be a causal connection between a party's absence and whether their case was adequately put, the provision is intended to overcome unfair procedural disadvantage. As such, to apply the threshold too narrowly would defeat the purpose of the discretion. 64Mrs KLC is not a lawyer, was not legally represented and may not have understood these matters but it is more likely than not that if she had been at the hearing, the Tribunal would have raised this issue directly with her and she would have responded along the lines that she has argued in this application. We are therefore satisfied that the Tribunal has discretion to set aside or vary the decision.

Should the discretion be exercised and if so how? 65Having decided the discretion is enlivened, the question that arises is how it should be exercised in the circumstances of this case. 66There is no guidance in cl 9 as to how the discretion is to be exercised other than that the Tribunal must not make an order without taking any submissions made by the parties into account. 67When proceedings have been listed for hearing, there has been a lengthy hearing and a decision has been made, the Tribunal should be cautious in overturning such a decision. While the provision does not refer to "substantial injustice," in our view this would be an appropriate criterion against which to test the exercise of the discretion. Whether there has been procedural fairness but more particularly, the merits of the case (White J in Kyriakou at [33]), would be relevant considerations. Clause 5, Schedule 6 of the CAT Act provides that the Tribunal, when exercising its Guardianship Division functions for the purposes of the Guardianship Act 1987 (NSW) in relation to persons who have disabilities, is under a duty to observe the principles referred to in section 4 of that Act. These principles relevantly provide that the "welfare and interests of such person should be given paramount consideration." The objects of the CAT Act and the guiding principles (under ss 3 and 36 respectively) would also be relevant considerations. Thus, even if there has been procedural fairness, if there was evidence of substantial injustice to the person with a disability who is the subject of the application, it may be appropriate to set aside or vary a decision. 68Having regard to these matters, including the submissions of Mrs NNT and Mrs KLC, we are not satisfied the decision of the Tribunal should be set aside or varied for the following reasons: (a)There is no evidence that there has been any procedural unfairness. Mrs KLC was provided with the opportunity to participate in the hearing, she was sufficiently apprised of the issues raised by Mrs NNT and she could have participated in the hearing by telephone, which she conceded during the hearing. Mrs KLC chose not to avail herself of these opportunities and provided written submissions to the Tribunal, on three separate occasions, prior to the hearing. To set aside the decision and for Mrs NNT's application to be reheard would cause unnecessary stress for Mrs NNT and possibly Mrs CMT. It is not warranted having regard to the matters referred to below. (b)There is no evidence that the outcome of the hearing would have changed. The material question before the Tribunal, as disclosed by the Reasons for Decision, was whether there was a conflict of interest in Mrs KLC continuing to act in circumstances where it may have been appropriate for a claim to be made against the estate of Mr IMT. Mrs KLC was one of two beneficiaries under Mr IMT's Will and her husband was the executor. This would have involved Mrs KLC making a claim on behalf of Mrs CMT against her husband, herself and the other beneficiary if appropriate. Mrs KLC sought advice on this and was apparently told by her lawyer that the prospects were not good. Even if this is the case, whether a claim should have been made was a matter that should have been given independent consideration. Mrs KLC could not be impartial on this issue and whether this was conscious or not, is clearly influenced the decision-making in respect of the claim. This is evidenced by the fact that once the NSW Trustee and Guardian was appointed, the matter was referred for formal legal advice and a claim was filed on Mrs CMT's behalf. (c)There was clearly a potential conflict of interest between Mrs CMT's interests and those of Mrs KLC. The fact that there is a conflict of interest does not of itself raise anything improper about Mrs KLC's conduct, which she seems to infer from the decision, but rather recognises the existence of two potential claims where the interests of the parties diverge or may diverge. A conflict of interest or potential conflict may not be an absolute bar to an appointment as financial manager and much will depend on whether the conflict can be satisfactorily managed. In this case, the conflict is direct and it is difficult to see how it could be managed in the circumstances. Importantly, neither Mr BOC nor Mrs KLC seemed to appreciate there was a potential conflict of interest. They had not sought advice on the issue and it appears Mr Z may not have alerted them to the prospect. In these circumstances it is unlikely such a significant conflict could have been managed. (d)Given Mrs KLC's attitude that she may ultimately seek to resign or consent to the appointment of the NSW Trustee and Guardian at any rehearing, there would seem to be little utility in setting aside the decision. Clause 9 should be used with caution and it is not appropriate for a decision to be set aside so there can be a rehearing to simply 'correct' a finding that may not have been made if a party had attended the hearing, particularly if there has otherwise been procedural fairness. The provision should be used with caution where a party intentionally does not appear. This is to discourage parties from taking advantage of their absence by subsequently raising issues that either could have been raised at the hearing or would not have been raised but for party, with the benefit hindsight and the written Reasons for Decision provided by the Tribunal, seeking to address a critical issue. Not only would this be undesirable because it would not bring finality to a matter, but it is unlikely to be in the best interests of the person with a disability who is the subject of the application. (e)Most importantly, there was no evidence of substantial injustice to any party, and, in particular, to Mrs CMT. Nor was there evidence that it would be in her best interests for the decision to be set aside or varied. (f)Mrs KLC did not seek, nor was it appropriate, for a variation of the decision.

CONCLUSION 69The Tribunal decided not to set aside or vary the decision of the Tribunal made on 29 January 2014.

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: 19 August 2014

Consumer, Trader and Tenancy Tribunal Act 2001(NSW)

Civil and Administrative Tribunal Regulation 2013(NSW)

Civil and Administrative Act 2013(NSW)

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