Adequacy of reasons
36 Finally, we consider the issue raised by the Appeal Panel during the hearing. That issue is whether the Tribunal's reasons in relation to its finding that it was in VN's best interests that a financial management order be made, were adequate. The Guardianship Tribunal's reasons for coming to that view are set out above at [9].
37 Subject to some exceptions which are not applicable to these proceedings, the Guardianship Tribunal has a duty to provide each party with "formal written reasons" for its decisions: Guardianship Act, s 68(1B). However, no decision of the Tribunal will be invalid because of any informality or want of form: s 68(2). Some tribunals, including the Administrative Decisions Tribunal, are bound in its reasons for decision to set out "the findings on material questions of fact, referring to the evidence or other material on which those findings were based": ADT Act, s 89(5)(a). There is no equivalent provision in the Guardianship Act but common law principles are applicable. At common law, there is a judicial duty to give adequate reasons: Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 269-70; Pettitt v Dunkley [1971] 1 NSWLR 376; Public Service Board of New South Wales v Osmond [1986] HCA 7; (1986) 159 CLR 656. That duty applies to tribunals as well as courts: Absolon v NSW TAFE [1999] NSWCA 311 at [66].
38 A trier of fact is required to determine whether an asserted fact, such as whether VN had capacity to execute the power of attorney or whether VM was mismanaging his mother's affairs, is 'true': Jegatheeswaran v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 263 at 274. It has been held in numerous cases that making findings on material questions of fact is essential if reasons are to be adequate: Nominal Defendant v Kostic [2007] NSWCA 14; Nikolovski v Telstra Corp Ltd [2002] FCA 846. In Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430 Meagher JA set out three fundamental elements of a statement of reasons:
First, a judge should refer to relevant evidence. There is no need to refer to the relevant evidence in detail, especially in circumstances where it is clear that the evidence has been considered. However, where certain evidence is important or critical to the proper determination of the matter and it is not referred to by the trial judge, an appellate court may infer that the trial judge overlooked the evidence or failed to give consideration to it: North Sydney Council v Ligon 302 Pty Ltd (1995) 87 LGERA 435. Where conflicting evidence of a significant nature is given, the existence of both sets of evidence should be referred to.
Secondly, a judge should set out any material findings of fact and any conclusions or ultimate findings of fact reached. The obvious extension of the principle in North Sydney Council is that, where findings of fact are not referred to, an appellate court may infer that the trial judge considered that finding to be immaterial. Where one set of evidence is accepted over a conflicting set of significant evidence, the trial judge should set out his findings as to how he comes to accept the one over the other. But that is not to say that a judge must make explicit findings on each disputed piece of evidence, especially if the inference as to what is found is appropriately clear: Selvanayagam v University of the West Indies [1983] 1 WLR 585; [1983] 1 All ER 824. Further, it may not be necessary to make findings on every argument or destroy every submission, particularly where the arguments advanced are numerous and of varying significance: Rajski v Bainton (Court of Appeal, 6 September 1991, unreported).
Thirdly, a judge should provide reasons for making the relevant findings of fact (and conclusions) and reasons in applying the law to the facts found. Those (1997) 48 NSWLR 430 at 444 reasons or the process of reasoning should be understandable and preferably logical as well.
39 The Court of Appeal reiterated these principles in Alchin v Daley [2009] NSWCA 418. Sackville AJA (with whom McColl and Young JJA agreed) noted, among other things, that:
The extent and content of the reasons will depend on the particular case and the issues under consideration, but it is essential to expose the reasoning on a point critical to the contest between the parties. This may require the judge to refer to evidence which is critical to the proper determination of the issue in dispute. (citations omitted)
40 The fact that the Tribunal expressed 'concerns' about certain matters, rather than making definite findings of fact, is understandable given the sensitivity of the issues. Nevertheless, however sensitive the issues may be, the Tribunal has an obligation when giving reasons for decision to make material findings of fact. The Guardianship Tribunal elected not to carry out a review of the power of attorney, but the question of whether VN had capacity to execute that power was relevant to a critical issue in relation to the financial management application. That issue was whether it was in VN's best interests for a financial management order to be made. The question of whether VM had been managing his mother's affairs appropriately was also relevant to that question.
41 Having identified those issues, the Tribunal was bound to consider the evidence relevant to those issues and provide reasons for making its findings. In relation to the finding of incapacity, that evidence included, but was not limited to:
(a) allegations from VO that VN lacked capacity when she signed the power of attorney (Statement of VO, p 3),
(b) a file note from Leslie Rogers, the solicitor who witnessed the power of attorney, and a letter from him indicating his availability to give evidence by phone in relation to that execution; and
(c) the statement of VM dated 17 June 2010 setting out his recollection of the discussion between his mother, himself and solicitor Leslie Rogers when the power of attorney was signed.
42 In relation to the finding of mis-management, that evidence included, but was not limited to:
(a) allegations from VO that VM has allowed the family home to fall into disrepair and that VM's judgment is skewed because of grudges he holds, (Statement of VO, p 2),
(b) correspondence from disability service provider, Chesalon Services that VM always pays his account for services to VN on time;
(c ) an allegation by lawyers for VO that VM transferred money into VN's name "for the purpose of deliberately and artificially adjusting the assets attributable to [VM's father] so as to ensure that he remained eligible for assisted care benefits";
(d) two statements from VM setting out the history of his dealings with his parents' finances; and
character references in relation to VM and his wife.
43 None of this evidence was referred to in the decision and the Tribunal did not provide reasons for making its findings other than that VM had intermingled his parents' finances. Inadequate reasons does not always justify a decision being set aside: Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430 per Meagher JA at 444. However, in this case, the decision should be set aside and made again. The Tribunal did not 'engage' with the evidence in a way that enables the reader to understand the basis on which the factual findings were made: Whalan v Kogarah Municipal Council [2007] NSWCA 5 per Ipp JA at [40]. VM was unable to discern the basis for the Tribunal's conclusions. The decision should be set aside and the matter remitted to be heard and decided again.