YDL v YDO

Principles governing the appeal

1. The principles governing the appeal are not in doubt. Pursuant to s 80 of the Civil and Administrative Tribunal Act 2013 (CAT Act), save with respect to interlocutory decisions, the Appellants may appeal as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds. As recorded earlier, the Appellants did not seek leave to appeal on any other grounds.
2. What may constitute a question of law is not in doubt. In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP the Appeal Panel recorded a non-exclusive list of "questions of law", being: 1. whether there has been a failure to provide proper reasons; 2. whether the Tribunal identified the wrong issue or asked the wrong question; 3. whether a wrong principle of law has been applied; 4. whether there was a failure to afford procedural fairness; 5. whether the Tribunal failed to take into account relevant (i.e. mandatory) considerations; 6. whether the Tribunal took into account irrelevant considerations; 7. whether there was no evidence to support a finding of fact; and 8. whether the decision was so unreasonable that no reasonable decision maker would have made it.
3. The Appellants' grounds of appeal inferentially variously assert matters, some of which, if established, could demonstrate that they were denied procedural fairness by the Tribunal. Though educated and articulate, the Appellants are not legally qualified. Consistent with decisions of the Tribunal (Ros v Commissioner of Police [2020] NSWCATAP 70) the Tribunal does not adopt an overly legalistic approach to the articulation of grounds of appeal and has considered whether it can discern any questions of law as grounds of appeal from the Notice of Appeal, the Appellants' submissions and the first instance decision (Ros at [21]).
4. As will be seen, during the course of their submissions, and in response to questions from the Appeal Panel, the Appellants revealed considerably more information with respect to their mother's financial circumstances, and their knowledge of those circumstances, than they were apparently able to at the first instance hearing. They did not seek to adduce "new" or further evidence of those matters in the appeal.
5. In Ros, at [33], the Appeal Panel accepted, by reference to the authorities which the Panel reviewed, that "generally speaking, the further evidence sought to be admitted would have to relate to the tribunals at first instance and have been evidence which was relevant at the time to that decision". The Appeal Panel also considered that "whether it is likely the further evidence would have produced a different result at the Tribunal is relevant", and that any potential prejudice to the other party upon the receipt of further evidence was also relevant. Finally, the Appeal Panel accepted that a relevant consideration was whether the further evidence "would allow the Appeal Panel to consider whether, with the benefit of hindsight, it has been demonstrated that serious injustice has resulted or will, in fact, result from the exercise of the Tribunal's discretion". Had the Appellants sought to adduce new or further evidence of the financial matters to which YDN particularly referred in her submissions, doing so may, but would not necessarily have established appealable error on that basis.
6. The Appeal Panel explained to the Appellants the nature of the proceedings, and the fact that the appeal was not a rehearing of the first instance proceedings, or a "second go". The Appeal Panel also explained that persuading us that, had the Members of the Appeal Panel constituted the Tribunal at first instance, we may have come to a different decision to that of the Tribunal did not mean that the decision of the Tribunal was necessarily erroneous on a question of law.

The reasons for the decision of the Tribunal

1. The Tribunal published comprehensive reasons for the orders it made with respect to guardianship and financial management. Although the Appellants challenge the adequacy of the explanation of aspects of the proceedings during the hearing, there is, sensibly, no suggestion that the reasons of the Tribunal for its decision were inadequate (NSW Land and Housing Corporation v Orr [2019] NSWCA 231).
2. Under the heading "What the Tribunal decided", the Tribunal recorded at [1] that on review of the guardianship order made by the Tribunal in relation to YDM on 30 May 2022, the order was renewed for three years from 22 February 2023, and varied by appointing the Appellants as joint guardians for their mother in place of their aunt, YDO. As is not in doubt, that order was consented to by YDO.
3. The Tribunal recorded at [3] that on an application by YDL for a review of an Enduring Power of Attorney (EPOA) executed by YDM on 25 February 2021 the Tribunal decided, pursuant to s 36(1) of the Powers of Attorney Act 2003 (NSW), to carry out a review of the EPOA, and had decided not to make an order under s 36 of that Act, but to treat the application for review as an application for a financial management order [4].
4. The Tribunal recorded [5] that it made a financial management order in relation to YDM, appointing the Appellants jointly as her financial managers.
5. The Tribunal recorded [7] that YDM is 72 years old, lives in a residential aged care facility in Yass, and is reported to have Alzheimer's Dementia. Those findings are not controversial in the appeal. The Tribunal further recorded [8] that YDM has siblings, including YDO and a brother, a former partner, and four children, two of whom were the Appellants. The Tribunal recorded [14] that on 25 February 2021 YDM had appointed two of her siblings, her brother and YDO, jointly as her Enduring Attorneys under an EPOA. The Tribunal further recorded [15] that, on the application of YDO, on 13 September 2022 the Tribunal carried out a review of the EPOA, and removed three of the Attorneys appointed by YDM on 25 February 2021, leaving her sister, YDO, as her sole Enduring Attorney under the EPOA.
6. The Tribunal recorded, accurately, that on 10 October 2022 YDL sought a review of the making and operation and effect of the EPOA, and that the present Appellants replace YDO as Enduring Attorneys for their mother. On 25 October 2022 YDN lodged a similar application for review of the EPOA.
7. For the reasons which it recorded [22]-[52] the Tribunal concluded that it was appropriate to make guardianship orders in the terms in which it did. Under the heading "Who should be appointed as the guardian" the Tribunal found [59] that YDM said at the Tribunal hearing that she would be "happy" for the Appellants to be appointed as her guardians and that it would be "fine" if they "helped by making decisions for her if she was unable to do so".
8. The Tribunal found that each of the Appellants has a "personality that is generally compatible with that of their mother. While there were indications of past estrangement the situation has changed. Neither of them has a relevant conflict of interest and we were satisfied on their evidence that they were both willing and able to exercise the functions of the proposed order having regard to their mother's interests and welfare. [YDM] supported their appointment". The Tribunal was satisfied on the evidence before it that each of the Appellants "met the requirements to be appointed as a private guardian" for YDM [60]. We refer to those findings in view of the Appellants' contentions that there was no basis upon which the Tribunal could properly have found that it was necessary for their financial management of their mother's estate to involve the NSWTAG. Those findings, and others to which we shall refer make clear that no part of the decision of the Tribunal to make the joint appointment of the Appellants as their mother's financial management subject to the supervision of the NSWTAG was in reliance upon any relevant adverse finding with respect to the character or motivation of either of the Appellants to act in their mother's best interests.
9. Under the heading "Reviews of Enduring Power of Attorney", the Tribunal considered the application of the Appellants for an order that they replace YDO as their mother's attorneys under the EPOA. The Tribunal recorded [68] the orders which it could make relating to the operation and effect of the EPOA if it was satisfied that it would be in the best interests of YDM to make the order or that it would reflect the wishes of YDM to make the order.
10. The Tribunal also recorded [70] that if it decided not to make an order under s 36 of the Powers of Attorney Act it could, if it considered it appropriate in all the circumstances to do so, decide to treat the application for review as an application for a financial management order under Part 3A of the Guardianship Act.
11. The Tribunal recorded [71], after considering the Appellants' applications to review the EPOA and "discussion" with them that as "in essence they sought the same result", the Tribunal decided to consider all the issues raised by [YDL] and [YDM] in the context of determining the first application to review the EPOA. We do not understand the Appellants to dispute the accuracy of that finding.
12. The Tribunal then considered whether it should conduct the review of the EPOA [73]-[74] and whether it should make any orders under s 36 of the Powers of Attorney Act [75]-[77]. The Tribunal recorded, accurately, that the existing Attorney, YDO, and the Appellant's mother supported the Appellants replacing YDO as YDM's enduring attorneys.
13. The Tribunal found [78] that it was not "satisfied that it would better reflect [YDM's] wishes to remove [YDO] as Enduring Attorney and to appoint [YDL] and [YDN] in her place. When [YDM] executed the EPOA she appointed four family members to act jointly as her Enduring Attorneys. She did not include [YDL] or [YDN]. It is not clear whether this reflected their estrangement or an informed view at the time of execution of the EPOA in relation to their ability, without any oversight or supervision, to manage a not insubstantial estate which involved a degree of complexity".
14. As the Tribunal had earlier recorded, YDM executed the Power of Attorney on 25 February 2021. There was no suggestion that, at that time, YDM lacked the capacity to execute a valid EPOA, or that the EPOA was invalid on any other basis.
15. The Tribunal further found [79] that "While there was past estrangement, we were told that the children are now reconciled with their mother who has moved to a facility near [YDN] and has met her grandchildren. [YDM] now accepts that it would be "fine" if [YDL] and [YDN] manage her money. However she showed very limited understanding of her finances", in ways which the Tribunal identified. The Tribunal reiterated that YDM said "that she would trust her four children to help in relation to her finances". Two of those children did not seek to provide such help.
16. The Tribunal recorded [80] some detail of YDM's financial position as it was explained by YDO. Although it was not evidence before the Tribunal at first instance, or the Appeal Panel, we were informed by the Appellants that their mother's estate included a refundable deposit bond of $400,000 with RSL Lifecare relating to her current accommodation, shares managed by a well-known investment house worth approximately $1.13 million and an apartment at Tweed Heads. The Tweed Heads apartment was said to be worth about $800,000 and generates income for YDM, as does her share portfolio. YDO informed the Tribunal that YDM had been on a pension "but that has not been so for a couple of years" [80]. We infer that YDM's means are such that she is not eligible for a Centrelink pension.
17. The Tribunal recorded [81] with respect to the Appellants' ability to manage their mother's estate as Enduring Attorneys that "they have limited experience in financial management". That finding has not been shown to have been unsafe.
18. The Tribunal found [82] that having regard to "all the evidence, including the choices [YDM] made as to her enduring attorneys at a time when she had capacity, her present impaired decision making capacity and limited understanding of her finances, the absence of criticism of [YDO's] actions as Enduring Attorney and the admittedly limited experience of [YDN] and [YDL] in financial matters that would come within the responsibility of the enduring attorneys, we are not satisfied that it would be in [YDM's] best interests or that it better reflect her wishes to make any of the orders provided for in s 36(4) of the Powers of Attorney Act."
19. In view of that conclusion, the Tribunal considered the making of a financial management order. For the reasons which it recorded [85]-[90] the Tribunal was satisfied that YDM was incapable of managing her financial affairs. That finding is not controversial in the appeal. Nor was the Tribunal's finding that the Appellants were appropriate persons to be appointed as YDM's financial managers.
20. The Tribunal recorded its options [92] when making a financial management order to be, appointing a "suitable person to manage the person's estate" or to "commit the estate's management to the NSW Trustee and Guardian", the preference being to appoint a suitable person where that is "appropriate".
21. After referring to relevant authorities, and accepting [95] the "advantages of the appointment of a family member", and the reasons for them, the Tribunal referred [97] to the evidence of the Appellants "as to their suitability and experience to act as substitute financial decision makers under the oversight of the NSW Trustee and Guardian". The Tribunal recorded [98] that YDN was a Registered Nurse, employed by a local health district, who was a member of a family business the finances of which were managed by YDN's husband. The Tribunal recorded that YDN "admitted that she knew nothing about her mother's finances" but "answered probity questions satisfactorily". YDN explained to the Appeal Panel that, prior to her appointment as one of her mother's financial managers, she had no legal capacity to access any financial records or information relating to her mother, hence the admission she made to the Tribunal.
22. The Tribunal recorded [99] that YDL works as a Correctional Services Officer, rents his home and manages his personal finances. YDL was found to have "answered probity questions satisfactorily", and to have "recognised that his mother has a substantial estate".
23. The Tribunal recorded [100] that the Appellants "sought to be appointed jointly. They acknowledged the oversight and supervision role of the NSW Trustee and Guardian". It is less than entirely clear from that finding whether, at least impliedly, the Appellants gave the Tribunal the impression that they did not oppose that oversight and supervision. It is not in doubt in the appeal that the Appellants do oppose such oversight and supervision, and assert that it is unnecessary in the circumstances.
24. The Tribunal found [101] that it was satisfied that the Appellants "both have their mother's best interests at heart and that were they to be appointed [as financial managers] her estate, income and assets would be used to advance her interests and quality of life". The Tribunal further acknowledged that their appointment would be consistent with the factors identified by the Court of Appeal in Holt & Anor v Protective Commissioner (1993) 31 NSWLR 227.
25. The Tribunal was further satisfied that "Despite their relatively restricted financial experience they each have the necessary qualities for appointment to the role of financial manager and that they will work with each other and consult with their aunt (who said that she would be there for them) when appropriate." The Tribunal reiterated [102] that it was "satisfied" that the Appellants were suitable persons to be appointed jointly as their mother's financial managers "subject to the authorities and directions of the NSW Trustee and Guardian".

The grounds of appeal

1. As is apparent from the outline of their submissions, the Appellants relied on what assertedly occurred at the hearing before the Tribunal in support of their grounds of appeal. In accordance with its invariable practice, the Tribunal directed, on 5 April 2023 (order 3(d), that if "what happened at the hearing at first instance is being relied on by the appellant in the appeal, a typed transcript of the relevant parts of the hearing, together with the sound recording of the entire hearing" was to be lodged with the Appeal Registry and provided to the Respondent. The Appellants did not do that. The Appellants' explanation for not doing so was that it was "excessive, far too time consuming, and a complete overburden upon all parties" to obtain a transcript of the hearing and that "additionally, to pay an external provider to complete a transcript is to an amount too far excessive or affordable, given fees mandated by NCAT and TAG upon us already to date".
2. The Appellants asserted that a "smaller excerpt has been prepared with the relevant time stamps of the recording for the section of the hearing we [Appellants] believe to be deficient to support the subsequent decision".
3. In their submissions, the Appellants made three references to audio files which were said to relate to the hearing of the proceedings. The Tribunal explained to the Appellants the reasons why the Tribunal makes directions as it does with respect to the transcript, and that the Appeal Panel would not be listening to selected parts of audio files with a view to discovering something which might have advanced the Appellant's grounds of appeal.
4. The Appellants bear the onus of demonstrating error on a question of law. Quite apart from the fact that, in isolation, the Appeal Panel cannot safely rely upon parts of the transcript of the proceedings, inherent in doing so is also the risk that the Tribunal will be impermissibly drawn "into the arena", and possibly finding, material which the Appellants have not identified which could advance the Appellants' grounds.
5. In the absence of the transcript, although not necessarily impossible, it is difficult for the Appellants to make out most of their grounds. There is a presumption of regularity in proceedings before the Tribunal, and an assertion by a party to proceedings that the Tribunal erred in some substantive or procedural way, without more, cannot advance complaints of that kind.
6. The crux of the Appellants' challenges to the financial management order made by the Tribunal was that, for various reasons, it was not reasonably open to the Tribunal to make their appointment as joint financial managers subject to oversight and supervision by the NSWTAG. Inherent in that challenge was their contention that their mother's best interests did not justify doing so.
7. The Appellants referred to "questions" to YDN from the Tribunal with respect to her experience in managing financial affairs and related issues. Although, for the reasons which she explained, YDN was able to say very little about her mother's finances at the hearing before the Tribunal, and appears to now have considerably greater knowledge of them, nothing emerging from that information suggests that the Tribunal was wrong in finding as it did with respect to YDN's absence of knowledge of her mother's financial circumstances. YDN fairly admitted as much during the hearing of the appeal.
8. As the Appeal Panel reminded the Appellants, the Tribunal made no adverse findings about their motivation to manage their mother's estate diligently, competently and in her best interests, and made no findings suggesting that either of them had any actual or potential conflict of interest with their mother's interests. It is to be remembered that, on a daily basis, the Appellants have been appointed financial managers of their mother's estate. Such appointment is entirely inconsistent with the Tribunal having reservations about any of the matters to which the Appellants referred and identified in the eight "questions to [YDN]" and the nine "questions" identified by them as being with respect to YDL. The Appellants submitted that all of the questions identified by them had been "answered satisfactorily", but that the "scope of the questions is too narrow to support the decision changing power of attorney application to financial managers". The "style of the probity questions" was submitted to be of a "closed" fashion and to have "elicited a very set response". A "more open style that invited additional information that held relevance would be vastly more appropriate".
9. As we have earlier recorded, without the transcript of the proceedings, we cannot accept that any "questions" asked, or not asked by the Tribunal during the hearing enlivened or invited appellate intervention. The contention of the Appellants that "none of the questions invited either applicant to divulge the following highly appropriate information" ignores the fact that the Tribunal made positive findings with respect to the motivation, probity, commitment and competence of each of the Appellants. Moreover, the Appellants have not identified the asserted further "highly appropriate information" which the Tribunal allegedly failed to facilitate being adduced, much less why the Appellants were unable to do so.
10. As the Tribunal's reasons [78] made clear, the decision to make the appointment of the Appellants as joint financial managers for their mother subject to supervision and oversight of the NSW TAG was primarily for two reasons. The first was that, on 25 February 2021, when YDM executed the EPOA, she chose not to appoint either of the Appellants as one of the four Attorneys named in the document. That was a circumstance which the Tribunal was entitled to take into account when determining whether or not to impose supervision by the NSW TAG on YDM's financial managers.
11. The Tribunal recorded that it was "not clear" why YDM did not include the Appellants amongst her Attorneys. Not insignificantly, for present purposes, nowhere in its reasons did the Tribunal find or infer that the omission of the Appellants from the 2021 EPOA was because of any conduct on their part which would justify their exclusion from the EPOA.
12. The second matter was that, the Tribunal recognised [79] that YDM supported the appointment of the Appellants as her financial managers but found that YDM had "very limited understanding of her finances" when coming to its decision. As previously recorded, YDN acknowledged, through no fault of hers we are satisfied, that she "knew nothing about her mother's finances at the time of the hearing before the Tribunal", as the Tribunal recorded at [98]. The Tribunal made the numerous positive findings to which we have earlier referred, at [101], with respect to the capacity of the Appellants to be their mother's financial manager but, was not satisfied that the absence of oversight and supervision by the NSW TAG was appropriate. Albeit it has not been quite six months, there was no suggestion by either the Appellants that, since the orders of 22 March 2023, the NSW TAG has, in their view, unreasonably interfered with or tried to influence the Appellants' financial management of their mother's estate.
13. The Appellants set out some asserted background (page 3.7-page 4.5). We were not referred to any evidence, documentary or otherwise, in relation to those matters, but, without more, they would not in our view have advanced the Appellants' challenges in any event.
14. The Appellants asked that matters "relevant to an identified "time stamp" be "suppressed and treated as information only for the presiding NCAT Member adjudicating on 19 July 2023" as such information was "sensitive and was withheld due to the Respondent being part of subsequent listings". It is not clear to us to what those submissions referred, and nothing said by the Appellants at the hearing clarified that. The Appellants did not reveal anything to the Appeal Panel which they suggested was "sensitive", and nothing said by either of them during the appeal fell within that description. It is to be remembered that the proceedings before the Tribunal, and before the Appeal Panel, are governed by the provisions of s 65 of the CAT Act, and that nothing recorded in our decision will reveal the identity of YDL, YDN, YDO or YDM.
15. The Appellants complained about "NCAT's refusal to abide by multiple requests from the applicants to date" and referred to ten particular matters. To the extent that we understand what those complaints are, there has never been an impediment to the Appellants obtaining the transcript of the hearing on 22 February 2023. The Appellants obtained the audio recording of the hearing and elected not to produce a transcript. Whatever the merits of the Appellants' various complaints, they do not advance the present appeal.
16. The submissions of the Appellants with respect to the "nonsensical email replies following reasonable enquiries, refusal by NCAT to respond to emails in writing, persistent phone calls from no caller numbers and nonsensical verbal messages left by NCAT staff, emails that are received have no identifying author, misrepresentation of applicants' communication in orders and decisions once finally received, matters and decisions being held concurrently with other non-related matters (03 April)" have not been established. Even if they had been, they could not advance the present appeals.
17. The Appellants made a number of closing submissions, none of which establishes error by the Tribunal on a question of law. The Appellants reiterated that they "categorically reject that any oversight function, from NSW TAG, is needed or justified". As the Appeal Panel explained to the Appellants, the Tribunal made an evaluative determination. It is in the nature of such determinations that, on the same evidence, minds may reasonably disagree, without erring in law. The Tribunal may have come to a different decision, but, by reference to the principles which we have earlier set out in these reasons, the Appellants do not enliven appellate intervention on the basis that it may have.
18. The Appellants reiterated, genuinely the Appeal Panel accepts, that there are "matters" that they wish to attend to on their mother's behalf (for her benefit), to ensure a comfortable and dignified life within her newly settled aged care lifestyle". Although the Appellants submitted that they "simply cannot address" those matters due to the "continued, time consuming and costly NCAT processes" nothing to which we have been referred suggests that the Tribunal erred in ordering that the NSWTAG have oversight and supervision of their joint financial management of their mother's estate on any of those grounds.
19. The Appellants did not suggest to the Appeal Panel any aspect of their mother's care or lifestyle, or their ability to manage her finances, which had been adversely impacted by the NSWTAG, or anything done, or not done by it. The "NCAT processes" will end with our decision. It would be open to the Appellants at some time in the future to make an application to review the financial management order with a view to that order being revoked. On review the Tribunal may revoke the financial management order only if the Tribunal is satisfied that the protected person is capable of managing his or her affairs or the Tribunal considers it is in the best interests of the protected person that the order be revoked (s 25P(2) Guardianship Act 1987 (NSW)). A relevant consideration on any review of the financial management order would be that if the financial management order was revoked the EPOA would no longer be suspended (s 50(3) of the Powers of Attorney Act 2003 (NSW).
20. For the foregoing reasons the Appeal Panel is not satisfied that the Appellants have demonstrated error on a question of law. To the extent that the Appellants may have sought to adduce additional evidence with respect to their current knowledge of and current familiarity with their mother's financial circumstances, at best, that would establish only that the Tribunal may, but was not obliged, to make orders for joint financial management without the oversight or supervision of NSWTAG.
21. For the foregoing reasons the appeals will be dismissed.

Order 1. YDN is joined as an Appellant in the proceedings. 2. The appeals of YDL and YDN are dismissed.

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: 01 November 2023