YDV v YDT

Background to the appeal

1. The following facts are principally taken from the decision under appeal and decisions made by differently constituted tribunals in February 2022 and November 2022.
2. On 2 August 2017, the Subject Person executed an enduring power of attorney (the 2017 EPoA) appointing the appellants as her attorneys. On the same day, the Subject Person executed an instrument appointing the appellants as her enduring guardians (the 2017 EGA).
3. On 11 October 2021, the Subject Person revoked the 2017 EPoA and the 2017 EGA (together, the 2017 appointments). On the same day the Subject Person executed an enduring power of attorney (the 2021 EPoA) appointing the Resident Daughter as her attorney and her granddaughter, the Resident Daughter's daughter (the Granddaughter) as her alternate attorney.
4. Subsequently, the Son lodged applications with NCAT seeking review of the revocation of the 2017 EPoA, the making of the 2021 EPoA and the making of the 2021 EGA. Shortly before the hearing to determine those applications the Resident Daughter and Granddaughter notified the Tribunal that they had resigned from their respective positions as the Subject Person's attorney and enduring guardian.

First Tribunal Decision

1. On 23 February 2022, following a hearing, the Tribunal (J Moir, Senior Member, M J Staples, Senior Member, K J McIvor, General Member): 1. exercised the discretion conferred by s 36(1) of the Powers of Attorney Act 2003 (NSW) (the PoA Act) to review the revocation of the 2017 EPoA; 2. exercised the discretion conferred by s 37(1) of the PoA Act to treat the application made by the Son for review of the 2017 EPoA as an application for a financial management order under the Guardianship Act 1987 (NSW); 3. made a financial management order in respect of the Subject Person's estate appointing the appellants jointly and severally as the managers of that estate.
2. With respect to the application seeking review of the making of the 2021 EGA, the Tribunal: 1. approved the resignation of the Resident Daughter and the Granddaughter from their positions as enduring guardian and alternate enduring guardian respectively; 2. treated the application for review as an application for a guardianship order; 3. made a guardianship order in respect of the Mother appointing the Daughter as the guardian and the Son as alternative guardian for a period of 12 months with the functions of accommodation, health care, medical/dental consent, and services.
3. In February 2022, when the first hearing was held, the Subject Person was living with the Son. Previously she had been living with the Resident Daughter. On 1 October 2021, ten days after being admitted to hospital with COVID-19, the Subject Person was discharged into the care of the Resident Daughter. In early November 2021, the Subject Person spent about three weeks in respite care at an aged care facility and returned to live with the Resident Daughter. Around that time the Subject Person's house, which had been on the market, was withdrawn from sale. The Subject Person's children disagreed about whether the Subject Person's house should be sold and whether she should remain in residential aged care.
4. At [32]-[36] of the Reasons for the decision made on 23 February 2022 (the First Tribunal Decision), the Tribunal summarised the medical evidence about the Subject Person's decision-making capacity. The Tribunal noted that in a letter dated 25 June 2021, the Subject Person's GP since 1983, Dr Liew stated that the Subject Person has "early dementia with cognitive decline".
5. In a subsequent letter dated 15 October 2021, Dr Liew wrote: "Due to [the Subject Person's] declining cognitive processes since early this year, she underwent a MMSE … where she scored 15/23. Some further investigations confirmed dementia on 25/6/21 ...as her treating doctor I am of the opinion that [the Subject Person's] current cognitive process is inadequate to make sound decisions regarding her own care as well as allocation of her estate."
6. In a third letter dated 8 January 2022, Dr Liew wrote that on that day, the Subject Person scored 15/23 on a Mini-Mental State Examination (MMSE). Dr Liew stated that those results indicated "moderate cognitive impairment".
7. The Tribunal noted that the records relating to the Subject Person's admission to hospital in September 2021 with COVID-19 contained "no reference to any concerns regarding her cognition".
8. At [37]-[42], the Tribunal detailed the claims and counter claims made by the Subject Person's three children about the circumstances surrounding the history to the making and revoking of the 2017 Instruments. At [37] the Tribunal referred to several documents which "purport to express [the Subject Person's] views about her situation over the course of the past few months, including her decision to revoke her 2017 instruments, and execute new instruments, appointing [the Resident Daughter and the Granddaughter]". The Tribunal observed that those documents did "not provide a consistent account of [the Subject Person'] views".
9. At [43], the Tribunal observed that at the hearing the Subject Person was "articulate but appeared somewhat confused". The Tribunal noted that the Subject Person disagreed with Dr Liew's opinion that she has dementia and said she "did not have problems with her memory".
10. At [49], the Tribunal stated: "[It] was satisfied from the available evidence that [the Subject Person] has some degree of cognitive impairment arising from dementia. Along with her language limitation and her dependence on others for day to day care, her cognitive impairment contributes to her being vulnerable to influence and exploitation by others, both at the present time, and at the time she executed the instruments under review."
11. At [91], the Tribunal gave these reasons for finding the Subject Person is incapable of managing her financial affairs and therefore a person for whom a financial management order could be made: "The evidence regarding [the Subject Person's] s cognitive impairment is set out above and is relevant to this question. There was no dispute at the hearing that [the Subject Person] is dependent on others to manage more complex aspects of her financial affairs although she is able to manage routine transactions. A simple example of her incapacity is that she was entirely inconsistent in her ability to recall whether she had $150,000 kept in her red box, or just sufficient funds to pay household bills, which must, in anyone's reckoning be a much smaller amount. [the Subject Person's] vulnerability to financial exploitation has been demonstrated in recent times, with significant sums being transferred from her account with implausible explanations (e.g. $5,000 for a month's medications)."

Second Tribunal Decision

1. On 20 September 2022, applications seeking review of the financial management and guardianship orders were lodged with NCAT in which the Subject Person was named as the applicant. At a directions hearing on 13 October 2022, the Tribunal identified the Resident Daughter as the substitute applicant and ordered that the Subject Person be separately represented. The Legal Aid Commission of NSW declined to provide a separate representative.
2. On 15 November 2022, following a hearing, the Tribunal (R Booby, Senior Member: 1. reviewed and varied the February 2022 guardianship order for a period of 12 months and appointed the Public Guardian as the Subject Person's guardian with the same functions as conferred by the February 2022 guardianship order; 2. reviewed the February 2022 financial management order and revoked the appointment of the appellants as the managers of the Subject Person's estate and committed the Subject Person's estate to the management to the NSW Trustee and Guardian (the Trustee).
3. In reasons for that decision (the Second Tribunal Decision), after summarising the evidence referred to in the first Tribunal Decision about the Subject Person's decision-making ability, the Tribunal outlined the tendered medical evidence that post-dated that decision: 1. A letter dated 16 October 2022 in which GP, Dr David Puglisi, Greenoaks Medical Centre said that the Subject Person has some mild cognitive impairment but can make decisions for herself and is likely to be able to live by herself with low-level family support or a Home Care package. The Subject Person scored 24/30 on the Rowland Universal Dementia Assessment Scale (RUDAS) delivered in her first language, Italian. 2. A letter dated 20 October 2022 in which consultant geriatrician, Dr Ahamed Zawab, stated: 1. the Resident Daughter accompanied the Subject Person to the consultation and acted as interpreter and helped with the examination 2. the Subject Person was living in an aged care facility and reported feeling "down" since being admitted to that facility 3. on testing using RUDAS the Subject Person scored 23/30 4. based on his assessment, at that time the Subject Person did not have dementia but had risk factors to develop dementia. Dr Zawab did not express an opinion about the Subject Person's ability to make decisions about her accommodation, finances or medical care.
4. At [22] the Tribunal noted that there was no objective evidence to support the allegations made by the Resident Daughter that "Dr Liew's report is fabricated and its contents were dictated by [the appellants]" or that Dr Liew was being investigated for "fraud and corruption". The Tribunal accepted Dr Liew's "evidence as that of a general practitioner who has had a long association with [the Subject Person]".
5. At [24] referring to the First Tribunal Decision the Tribunal said: "When the Tribunal made the guardianship order it took into account [the Subject Person's] circumstances, including that the views she had expressed were inconsistent, that she was reliant on others to translate documents that were in English and to assist her with care, and that there was significant discord amongst her family members and allegations of influence by family members. The Tribunal was satisfied that under those conditions she may have been influenced in respect of the enduring powers of attorney and the enduring guardianship. The Tribunal was satisfied that considering [the Subject Person's] cognitive impairment and her physical disabilities she was restricted in her ability to care for herself and required some supervision and assistance."
6. At [25] the Tribunal said it gave little weight to the medical evidence which post-dated the First Tribunal Decision, namely a letter prepared by Dr Puglisi dated 16 October 2022 and a report prepared by Dr Zawab dated 20 October 2022Each was to the effect that the Subject Person was capable of making decisions. The Tribunal gave detailed reasons for that conclusion.
7. At [27] the Tribunal found that due to her disabilities the Subject Person "is restricted in being able to independently access, evaluate and utilise important information to make decisions about her lifestyle, and is vulnerable to the influence of others in seeking to make those decisions". The Tribunal decided to renew the February 2022 Guardianship order and to appoint the Public Guardian. The Tribunal noted that the appellants supported the appointment of the Public Guardian, stating that the high level of conflict between family members about decisions concerning the Subject Person meant that it was in her best interest that they not continue to act as guardians.
8. At [54]-[71] the Tribunal considered whether, as urged by the Resident Daughter, the discretion to revoke the February 2022 financial management could and should be exercised. At [66], after referring to the conflict between the parties surrounding the Subject Person's financial affairs, in particular whether the sale of the Subject Person's home should proceed, the Tribunal concluded: "(1) There are some complex decisions to be made about [the Subject Person's] estate. If she is returned to an aged care facility there will be a need to consider how to best deal with her real estate. If she is to remain in the community, decisions need to be made by a guardian as to whether she could remain at home, or would need to be accommodated in the home of a family member. Again, if she were to be accommodated elsewhere there would need to be a decision made about how to manage her real estate. (2) There is significant and ongoing conflict amongst family members that increases the complexity of the financial management decisions. The content of the previous Reasons for Decision combined with the evidence and views submitted for the current hearing indicate that [the Resident Daughter's] views about the potential sale of the house have changed. Issues about the sale of the house are a significant element of her application for review of the order. (3) Based on the previous Reasons for Decision and the current evidence and views I note that [the Subject Person] has indicated that she has signed documents without understanding them and has been influenced in doing so by different family members. I am satisfied that it is more likely than not that [the Subject Person] is subject to influence by her adult children and as a result, in the absence of a financial manager she could make decisions without access to independent advice and could be susceptible to exploitation."
9. At [71], the Tribunal said that while the Subject Person "may be able to manage her day-to-day bill paying" it was not satisfied that that the Subject Person is able to manage her affairs "which are subject to the complexities outlined [above], and taking into account her diagnosed cognitive impairment".
10. Having decided not to revoke the 2022 financial management order, the Tribunal went on to consider the question of who should be appointed to manage the Subject Person's financial affairs. The only person to nominate to take on that role was the Resident Daughter, the appellants having decided not to continue in that role of manager because of "the high level of conflict".
11. At [90], the Tribunal found that the Resident Daughter was not a suitable person for the following reasons: "(1) She has previously failed to disclose to the Tribunal important information about [the Subject Person's] bank accounts. (2) There are unresolved issues about a number of withdrawals made from the Subject Person's] bank account when she was an attorney. These matters may need to be examined by the financial manager. (3) Her views about the possible sale of the Subject Person's] house have changed dramatically. During the hearing her presentation was highly emotional. She has not provided a financial rationale for her change of views and has not indicated how she would manage the Subject Person's] affairs in accordance with events that may take place in the Subject Person's] lifestyle, including if she needs to be returned to an aged care facility. (4) Whilst [the Resident Daughter] appears now to be of the view that [the Subject Person] should not reside in an aged care facility, that decision will be made by a guardian. In my view a financial manager will need to closely consider dealings with [the Subject Person's] house in the context of decisions made by the guardian. I see no evidence of [the Resident Daughter] applying reasoned financial judgement about this issue."
12. The Tribunal committed the management of the Subject Person's estate to the Trustee.

The decision under appeal

1. On 14 December 2022, the Resident Daughter lodged applications with NCAT seeking review of the guardianship and financial management orders made in November 2022 (the November 2022 orders).
2. Following a hearing on 5 April 2023, the Tribunal (Senior Member Boxall) revoked the November 2022 orders. In reasons for that decision (the 2023 Reasons), after referring to the background to the November 2022 orders and the medical evidence before the tribunal in the two previous proceedings (at [34]-[40]), the Tribunal summarised the medical evidence that post-dated the making of the November 2022 orders. That evidence consisted of a report prepared by Dr Olive McBride FRACP, a specialist geriatrician together with a report of, and oral evidence given by, Dr Susan van den Berg, a specialist neuropsychologist.
3. At [41]-[48], the Tribunal summarised the principles which govern exercise of the discretion to revoke a financial management order conferred by s 25P(2) of the Guardianship Act Referring to one of the preconditions to the exercise of that discretion - that the Tribunal "is satisfied that the protected person is capable of managing his or her affairs" (Guardianship Act, s 25P(2)(a)) - the Tribunal said at [49] that "even if a person is cognitively able to manage his or her own financial affairs, other considerations - of which the most obvious concerns the person's physical ability to undertake the mechanical, communication and administrative steps necessary for the competent management of their affairs - may well necessitate the making of a financial management order".
4. At [50], the Tribunal considered the Subject Person's physical capacity to manage her financial affairs observing that in answer to questions from the Tribunal: "[The Subject Person] outlined lucidly and consistently her practice of attending at her bank every month or so, making a cash withdrawal, and using the cash proceeds to pay bills and meet her other expenditure needs, while keeping the unspent cash safely at home for use as required."
5. The Tribunal went on to state at [51]: "[the Subject Person] also summarised her financial position; her understanding of it was lucid and consistent with the financial summary provided by NSW Trustee and Guardian on 20 March 2023. She was adamant that she wished to regain management of her affairs, a point noted by both Drs McBride and van den Berg in their reports. She was equally adamant that her wishes and independence were respected by [the Resident Daughter], that she wished to live with [the Resident Daughter] until she needed more care than [the Resident Daughter] could provide, and that nobody could make her do anything with her money that she did not want to do. These views coincided with [the Subject Person's brother's] evidence concerning his older sister's character and the views that she expressed during their frequent telephone conversations."
6. At [55] the Tribunal noted that its finding that the Subject Person was capable of managing her financial affairs differed from the findings reached by two previous Tribunals. The Tribunal stated: "(1) In doing so, they proceeded on the best and most reliable evidence then available, being Dr Liew's reports and, in the most recent reviews, for the reasons summarised above, reached the conclusion that neither Dr Puglisi's nor Dr Zawab's reports outweighed Dr Liew's conclusions. The present panel respectfully agrees with the earlier panels' conclusions and reasoning having regard to the evidence presented to them. (2) However, the assessments of Drs McBride and van den Berg provide new, better and markedly more convincing assessments of [the Subject Person's] capacity to make informed and reasoned decisions about her personal affairs and her financial affairs than the assessments presented to the earlier panels."
7. The Tribunal applied largely the same reasoning in deciding to revoke the November 2022 Guardianship Order.

Statutory framework

1. The power to make a financial management order can only be exercised if, after considering the person's capability to manage their affairs, the Tribunal is satisfied of each of the three matters listed in s 25G of the Guardianship Act, namely, that the person is not capable of managing their affairs, there is a need for another person to manage those affairs on the person's behalf, and it is in the person's best interests that the order be made.
2. If the Tribunal makes a financial management order in respect of the estate (or part of the estate) of a person, the Tribunal may appoint a suitable person as manager of the estate. Alternatively, the Tribunal may commit the management of the estate to the Trustee: Guardianship Act, s 25M.
3. The protected person and any other person who, in the opinion of the Tribunal, has a genuine concern for the welfare of the protected person are entitled to apply for an order revoking or varying a financial management order: Guardianship Act, s 25R. A "protected person" is a person whose estate (or part of whose estate) is subject to a financial management order that is in force: Guardianship Act, s 25D.
4. The orders available to the Tribunal on review of a financial management order are listed in s 25P of the Guardianship Act: 25P Action on review (1) On reviewing a financial management order under section 25N, the Tribunal: (a) must vary, revoke or confirm the order, and (b) if it considers it appropriate to do so may take such action with respect to the appointment of the manager of the protected person's estate as the Tribunal could take on a review of such an appointment under Division 3. (2) The Tribunal may revoke a financial management order only if: (a) the Tribunal is satisfied that the protected person is capable of managing his or her affairs, or (b) the Tribunal considers that it is in the best interests of the protected person that the order be revoked (even though the Tribunal is not satisfied that the protected person is capable of managing his or her affairs). …
5. In exercising any of its functions under the Guardianship Act including reviewing a financial management order, the Tribunal must observe the principles listed in s 4 of that Act: 4 General principles It is the duty of everyone exercising functions under this Act with respect to persons who have disabilities to observe the following principles: (a) the welfare and interests of such persons should be given paramount consideration, (b) the freedom of decision and freedom of action of such persons should be restricted as little as possible, (c) such persons should be encouraged, as far as possible, to live a normal life in the community, (d) the views of such persons in relation to the exercise of those functions should be taken into consideration, (e) the importance of preserving the family relationships and the cultural and linguistic environments of such persons should be recognised, (f) such persons should be encouraged, as far as possible, to be self-reliant in matters relating to their personal, domestic and financial affairs, (g) such persons should be protected from neglect, abuse and exploitation, (h) the community should be encouraged to apply and promote these principles.

Grounds of appeal

1. In the notice of appeal and written submissions in support, the appellants listed multiple purported errors of fact and law made by the Tribunal. In addition, the appellants provided a detailed commentary about statements made by the Tribunal and Dr van den Berg which they asserted were "wrong".
2. The NCAT Act gives the appellants a right to appeal the decision under appeal on any question of law or, with the leave of the Appeal Panel, on any other ground: NCAT Act, s 80(2)(b).
3. The purported questions of law identified by the appellants appear to be: 1. whether the Tribunal erred by admitting/giving weight to the opinions expressed by Drs McBride and van den Berg in circumstances where they were biased and in conducting their respective assessments failed to follow "standard practice" 2. whether the Tribunal misapplied the principles stated in P v NSW Trustee and Guardian [2015] NSWSC 579 3. whether the finding made by the Tribunal that the Subject Person was capable of managing her affairs was based on a mistake of fact 4. whether the Tribunal failed to have regard to the evidence that the Subject Person had been subject to financial abuse.
4. In addition, the appellants seek leave to appeal on the ground that the decision under appeal was against the weight of evidence.
5. Finally, the appellants request that we deal with the appeal under s 80(3) of the NCAT Act by way of a new hearing and have regard to the material produced by Dr van den Berg in answer to the summons issued in this appeal.

Ground 1: Whether the Tribunal erred by admitting/giving weight to the opinions expressed by Drs McBride and Dr van den Berg in circumstances where they were biased and failed to follow "standard practice"

1. Before addressing this ground, it is useful to summarise the reports prepared by Drs McBride and van den Berg and the principles governing expert evidence in proceedings in the Guardianship Division.

Dr McBride

1. In November 2022, Dr Puglisi requested geriatrician, Dr Olive McBride, to give a "capacity assessment for accommodation and financial management decision making". Dr Puglisi had assessed the Subject Person in October 2022 and reported that she "has some mild cognitive impairment only" and "is definitely of sound mind and can definitely make decisions regarding her future for herself".
2. In a report dated 29 November 2022, Dr McBride gave an account of the consultation with the Subject Person apparently carried out on the same day. After setting out in some detail the Subject Person's history, in particular over the last two years, Dr McBride referred to the cognitive screening test RUDAS (Rowland Universal Dementia Assessment Scale) undertaken by Dr Puglisi a month earlier in which the Subject Person scored 24/30. Dr McBride stated that because it had recently been conducted she did not repeat that test.
3. Dr McBride wrote that on examination the Subject Person "appeared physically well and robust". She went on to write: "There was no obvious thought disorder or inattention to suggest delirium or significant cognitive impairment. Her speech was fluent and appropriate. … She had a good command of English and was able to communicate in English most of the time, but used Italian for more complicated discussions."
4. Dr McBride concluded: "In my opinion, [the Subject Person] has a good understanding of her current legal status, family conflict, her care needs and her financial assets. She has the capacity to manage her finances and also make decisions about her accommodation. It is unclear whether or not there was a medical assessment done at the time when the power of attorney and enduring guardianship powers were initially used. That medical assessment would have determined whether or not she had the capacity to manage these affairs, and if she had capacity, these powers should not have been enacted."
5. Given the "significant family conflict and to put this matter to rest", Dr McBride recommended that the Subject Person undergo a neuropsychological assessment and a thorough battery of cognitive assessments.
6. Dr McBride conducted the consultation at the Resident's Daughter's home. She reported that an Italian interpreter was present throughout the consultation and that the Resident Daughter "was present only at requested times, otherwise, the majority of the assessment was done without [the Resident Daughter] present".

Dr van den Berg

1. At the request of the Resident Daughter, Dr van den Berg conducted a neuropsychological assessment of the Subject Person and prepared a written report of that assessment dated 25 January 2023. In addition, Dr van den Berg gave oral evidence.
2. Dr van den Berg conducted the assessment in the Resident Daughter's home on 20 January 2023. Dr van den Berg reported that she saw the Subject Person for assessment for about two hours. An Italian interpreter was present. The Resident Daughter "remained in another part of house for the duration of the assessment".
3. Under the heading "brief background", Dr van den Berg summarised the history given by the Subject Person. With respect to the conflict between the Subject Person's children, Dr van den Berg wrote: "It appears that there continues to be significant conflict between [the Subject Person] and [the Resident Daughter] and [the Subject Person]'s other two children, such as significant decisions being made without consultation and also apparently some police involvement. I will not go into further detail regarding the family disputes as it is not directly relevant to my clinical decision and I believe it has been covered in other documentation."
4. Under the heading "Questions regarding capacity", Dr van den Berg wrote: "When asked about her assets, [the Subject Person] stated that she owns her home, estimating its value to be roughly $500,000. She said she does not own a car or other properties. Bank accounts were stated to be $100,000 in Commonwealth Bank and $30,000 in St George. She said that the public trustee had also moved money into a Westpac account without her permission. [The Subject Person] does not have any credit cards or debts, aside from owing [the Resident Daughter] money for her recent financial assistance. She stated that she wants the government to get out of her money and that she wants to manage it herself. When asked about her bills, [the Subject Person] stated that regular bills included electricity, phone and land rates. She had always paid her bills straight away at the post office and ensured she had money set aside for these. [The Subject Person] stated that she currently receives a half pension and she is also in receipt of an Italian pension."
5. Dr van den Berg wrote that the Subject Person: 1. was clearly distressed about not being able to access her money and numerous times throughout the assessment, said that "the 'government' did not allow her any money for 50 days" 2. said that some of her bills, such as Medibank, were not being paid by the public trustee 3. expressed her desire to continue to live with the Resident Daughter 4. said she does not require help with self-care but reported that the Resident Daughter holds the shower head while she showers but she is "otherwise independent" 5. gave a list of her medications and their purpose and said she takes them without prompting or assistance 6. said she is generally in good health, although "has problem with her heart which is exacerbated by the stress of the situation" 7. said that "when I pass away, it stays with the kids". When asked what would stay with the kids, the Subject Person said "my house and my money" 8. said she had made a will and left her assets to her three children: "Even if we are not talking, the money still goes to the kids".
6. Dr van den Berg stated that she had administered selected sub-tests of the Wechsler Memory Scale (4th edition); Repeatable Battery for the Assessment of Neuropsychological Status (RBANS) and the Addenbrooke's Cognitive Examination (3rd edition).
7. Under the heading "Results", Dr van den Berg wrote: "[The Subject Person] was fully oriented to time, place and person. She knew the current Prime Minister was called "Anthony something" but could not recall his surname. When asked about current news events, she stated that the COVID virus is still a big problem, particularly in China and that the government is restricting people from coming in from China. On assessment, [the Subject Person]'s basic attention was in the borderline range. She was able to quickly count backwards from 20 without error, although when reciting the months of the year backwards (from December to January), she skipped February. Despite the presence of an Italian interpreter, [the Subject Person] frequently communicated in English, at times difficult to understand due to her heavy accent and pressured speech when discussing her distress. Discussions with the interpreter indicated that [the Subject Person] did not display significant word finding difficulties during conversation. The interpreter raised the possibility of hearing difficulties as [the Subject Person] appeared to mis-hear some information, although otherwise her receptive language was adequate. Naming of simple objects was intact. Basic visuospatial and visuoconstructional skills were intact, although she had some difficulty copying a three-dimensional cube. Memory skills were somewhat variable, with some inefficiencies in her ability to encode new information, but notably her ability to retain information over time was in the normal range for her age. Immediate and delayed recall of visual material was in the normal range. Immediate recall of a short story passage was in the borderline range, however after delay she was able to recall most of the learned information, performing in the average range. Despite reduced encoding of an unrelated word list, her recall of the list after a delay was in the low average range. It should be noted that some of [the Subject Person]'s incorrect responses were very slight variations of a correct response, possibly reflecting hearing difficulties."
8. Dr van den Berg wrote that the assessment results were "somewhat complicated" which she attributed to the Subject Person's very limited education, her preoccupation and distress regarding her financial circumstances and the fact that she "frequently alternated between Italian and English during assessment tasks". Nonetheless, Dr van den Berg found that the Subject Person "was well orientated, demonstrated an intact ability to learn and retain information, displayed sound problem-solving abilities and good communication skills". Dr van den Berg found "no compelling evidence of a neurodegenerative process nor any significant cognitive impairment".
9. Dr van den Berg concluded: "Based on her history, psychometric assessment results and presentation at interview, it is my opinion that [the Subject Person] has capacity to make decisions concerning her own finances as well as decisions regarding healthcare and lifestyle. There is no evidence from a cognitive perspective that she requires a third party to make decisions on her behalf."

Principles governing expert evidence in proceedings in the Guardianship Division

1. Section 79 of the Evidence Act 1995 (NSW) operates as an exception to the proposition stated in s 76 of that Act that evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed: 79 Exception: opinions based on specialised knowledge (1) If a person has specialised knowledge based on the person's training, study or experience, the opinion rule does not apply to the evidence of an opinion of that person that is wholly or substantially based on that knowledge.
2. In Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305, Heydon JA at [79] sets out the list of the duties and responsibilities of expert witnesses identified by Cresswell J in National Justice Compania Naviera SA v Prudential Assurance Co Ltd [1993] 2 Lloyd's Rep 68 at 81-82. The first two are of particular relevance to this appeal: "1. Expert evidence presented to the Court should be, and should be seen to be, the independent product of the expert uninfluenced as to form or content by the exigencies of litigation ... . 2. An expert witness should provide independent assistance to the Court by way of objective unbiased opinion in relation to matters within his expertise ... An expert witness in the High Court should never assume the role of an advocate."
3. Headed "Expert Evidence" and made under s 26 of the NCAT Act, NCAT Procedural Direction 3, 28 February 2018 (PD 3) sets out a code of conduct for expert witnesses (the Code), which states in part: "General duty to the Tribunal … 14. An expert witness has an overriding duty to assist the Tribunal impartially on matters relevant to the expert witness's area of expertise. 15. An expert witness's paramount duty is to the Tribunal and not to any party to the proceedings including the person retaining the expert witness. 16. An expert witness is not an advocate for a party. …"
4. Because the Tribunal was not bound by the rules of the evidence (NCAT Act, s 38(2)) and the Tribunal did not direct that the Code applied, the Code did not apply to the proceedings the subject of the appeal: PD3 at 11. Therefore, the acceptability of the opinions expressed by Dr McBride and van den Berg, was a question of weight not admissibility.
5. We accept the proposition advanced by the appellants that if it is established that Drs McBride and/or van den Berg failed to give an objective, unbiased opinion, this would be highly relevant, if not determinative, to the assessment by the Tribunal of the weight to be given to their respective opinions.

Appellants' submissions

1. The appellants contend that the assessments conducted by Drs McBride and van den Berg were "biased and not for mum's benefit". In addition, they claim that those assessments were "not carried out thoroughly … [and] are there to accommodate what [the Resident Daughter] wants, eg, signing a new will". In addition, they assert that neither Dr McBride nor Dr van den Berg complied with their obligation to give an objective, unbiased opinion but instead tailored their respective opinions to advantage the Resident Daughter.
2. The appellants contend that the following conduct demonstrates that Dr van den Berg was biased in favour of, and had a pre-existing relationship with, the Resident Daughter: 1. by agreeing to assess the Subject Person in circumstances where she was fully booked 2. by conducting the assessment in a manner which did not conform with "standard practice" by: 1. (a) accepting pre-payment of her fee to assess the Subject Person 2. (b) completing the assessment in two hours 3. (c) permitting the Resident Daughter to be present throughout the assessment 4. (d) on the day of the assessment, entering the Resident Daughter's home before the interpreter had arrived 5. (e) providing the interpreter with documents to translate before the assessment.
3. It follows, contend the appellants, that the Tribunal erred in accepting Dr van den Berg's opinion.

Respondents' submissions

1. The Separate Representative submits that there was no proper basis for the allegation that Drs van den Berg and McBride conspired with the Resident Daughter to provide an opinion to advantage the Resident Daughter. The claim made by the appellants that their respective assessments did not conform with standard practice was unsupported by expert opinion. The Separate Representative pointed out that the appellants have no expertise in the field of neuropsychology and are not qualified to give evidence about what constitutes "standard practice" in the conduct of neuropsychological assessments.

Consideration: the booking contention

1. In the Reasons for the decision under appeal, dated 6 April 2023 (the Reasons) the Tribunal summarised the oral evidence given by Dr van den Berg in the hearing on 5 April 2023 (the hearing) in answer to questions by the Tribunal and the parties. At 37 the Tribunal recorded: "[Dr van den Berg said] she had no prior acquaintanceship either personal or professional with [the Subject Person] or any family member, and the invitation to undertake the assessment came in a telephone call from [the Resident Daughter], on the reference of another clinical neuropsychologist who had been approached by [the Resident Daughter] to assess [the Subject Person] but was unavailable to do so within the timeframe requested."
2. The appellants contend that this claim is contradicted by the following statement made by Dr van den Berg in oral evidence: "I attended [the Resident Daughter's house]. … I have clinic rooms that I used on a Wednesday, and I was fully booked up until the end of February, but given it was an emergency I was able to conduct the assessment at [the Resident Daughter's] house."
3. The appellants contend that the above statement "clearly shows" that the Resident Daughter and Dr van den Berg were acquaintances. They ask rhetorically: if otherwise, why would Dr van den Berg have been prepared to take time out of her busy schedule to conduct the assessment at short notice?
4. There was no direct evidence that Dr van den Berg and the Resident Daughter had a pre-existing relationship. Dr van den Berg gave an innocent and plausible explanation for her decision to accept the request to undertake the assessment of the Subject Person at short notice. The inference the appellants invite us to draw could not rationally be drawn from the available evidence. At best it is a "guess or conjecture" (see Lithgow City Council v Jackson (2011) 85 ALJR 1130; 281 ALR 223 per Crennan J at [94], Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1 at [6].)

The "standard practice" contention

1. The appellants contend that the assessment conducted by Dr van den Berg did not accord with "standard practice" and that this demonstrates that Dr van den Berg was biased.
2. There are several difficulties with this submission.
3. First, the appellants' claim that aspects of the assessment did not conform with "standard practice" was unsupported by expert evidence.
4. For example, in the appeal, when asked to identify the basis for their claim that it is "not standard practice", "it never happens" for a neuropsychologist to request payment of their fee two weeks in advance of the assessment, the appellants cited their discussions with neuropsychologists. The appellants did not disclose the name of those neuropsychologists, provide a statement they had prepared or make them available to give evidence in the proceedings.
5. A further example of Dr van den Berg's alleged deviation from standard practice is the length of the consultation with the Subject Person. Again, the appellants provided no material to support their claim that it was "standard practice" for a neuropsychological assessment of the type conducted by Dr van den Berg to take up to five hours or longer if an interpreter was involved.
6. In the hearing, the Son put to Dr van den Berg that an assessment of two hours was inadequate to properly assess the Subject Person's decision-making capacity. Dr van den Berg said that in her view two hours was more than adequate, asserting that "the specificity of neuropsychological testing is such that a 2-hour consultation is a generous period of time to make an assessment": see Reasons at 39.
7. While it was not bound by the rules of evidence (NCAT Act, s 38(2)), the Tribunal was nonetheless required to make findings of fact based on material that is "logically probative". In Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93, the Full Court of the Federal Court (Flick and Perry JJ) considered s 33(1)(c)) of the Administrative Appeals Tribunal Act 1975 (Cth), which is broadly equivalent to s 38(2) of the NCAT Act, and said: "The procedural flexibility afforded to an administrative tribunal freed from the rules of evidence does not absolve it from the obligation to make findings of fact based upon material which is logically probative in which the rules of evidence provide a guide."
8. Second, the premises on which some of the complaints made by the appellants about the conduct of the assessment is not made out on the evidence: 1. that the Resident Daughter was present in the room with the Subject Person throughout the assessment 2. that Dr van den Berg and the Resident Daughter were alone with the Subject Person before the arrival of the interpreter 3. that in advance of the assessment, Dr van den Berg gave the interpreter the tests she would be using in the assessment.

Resident Daughter present throughout the assessment

1. The appellants claim that the Resident Daughter was present in the room with the Subject Person throughout the duration of the assessment. In support of that claim, they point to the following: 1. The following statements contained in Dr van den Berg's report dated 25 January 2023: 1. "An Italian interpreter was present. [the Resident Daughter] remained in another part of the house for the duration of the assessment" 2. in the context of summarising the history given by the Subject Person: "[The Subject Person] does not require assistance with self-care, although [the Resident Daughter] reported that she holds the shower head for her mother whilst she washes herself but is otherwise independent". 1. The following oral evidence given by Dr van den Berg: "MEMBER BOXALL: Ok, so, so, can you tell me a bit please about the physical, the physical layout of where you conducted the assessment? DR VAN DEN BERG: Yes, so, well, I was greeted by [the Resident Daughter] at the door, and she took me through to the back area of the house, which is where [the Subject Person] is staying, and then we sat down together, and [the Resident Daughter] moved into another area of the house until after the assessment. TRIBUNAL MEMBER: … So was there a door or something separating where you were? DR VAN DEN BERG: … There was no door closed between those two areas, but yeah, we did not see or hear [the Resident Daughter] for that whole time and the interpreter so, was also escorted through so it was myself and the interpreter." (Transcript, 5 April 2023, at 0:26:04 - 0:27:12) 1. The summary of Dr van den Berg's evidence recorded by the Tribunal at 37: "The physical circumstances in which the assessment took place, including notably that [the Resident Daughter] was absent from the room for most of the assessment and only returned to the room on Dr van den Berg's invitation in order to clarify certain factual matters."

Consideration

1. The oral evidence given by Dr van den Berg does not, as the appellants assert, establish that the Resident Daughter was present throughout the assessment. At its highest, that evidence establishes that, as recorded by the Tribunal, periodically the Resident Daughter "returned to the room on Dr van den Berg's invitation in order to clarify certain factual matters". It was for the Tribunal to determine whether the inconsistency between Dr van den Berg's oral evidence and reports was material and, if so, whether it rendered Dr van den Berg's opinion unreliable.

Entering the Resident Daughter's home before the arrival of the interpreter

1. The appellants claim that on the day of the assessment, Dr van den Berg entered the Resident Daughter's home before the interpreter arrived. They contend that this represents a deviation from "standard practice". The basis for that claim is the oral evidence given by Dr van den Berg set out in 86 above.
2. The appellants contend that as a consequence of Dr van den Berg arriving before the interpreter, Dr van den Berg and the Resident Daughter had the opportunity to coach the Subject Person about the tests to be performed.

Consideration

1. We understand the appellants to rely on Dr van den Berg's use of the first person, "Yes … I was greeted by [the Resident Daughter] at the door and she took me through to the back", together with Dr van den Berg's later statement, "the interpreter so, was also escorted through" to support the claim that Dr van den Berg arrived at the Resident Daughter's home before the interpreter.
2. The evidence falls short of establishing on the balance of probabilities that Dr van den Berg arrived before the interpreter. But, even if that was the case, that bare fact does not establish a deviation from standard practice. Less still does it establish that in the indeterminate time between the arrival of Dr van den Berg and the arrival of the interpreter, Dr van den Berg, the Resident Daughter, or both, used that opportunity to coach the Subject Person. That allegation was not put to Dr van den Berg in oral evidence.

Dr van den Berg gave the interpreter the tests in advance of the assessment

1. For convenience, we deal with this allegation under the heading, "Fresh Evidence". As we explain below that allegation is not established.

Dr McBride

1. The primary complaint made by the appellants about the consultation conducted by Dr McBride is that it was conducted in the Resident Daughter's home and that the Resident Daughter was present for part of that assessment.
2. Dr McBride reported that the Resident Daughter "was present only at requested times, otherwise the majority of the assessment was done without [the Resident Daughter] present".
3. The appellants adduced no evidence to support the contention that it was not standard practice for a geriatrician to conduct a capacity assessment of an elderly person in the place where they reside. Nor did they adduce any evidence to support the contention that it was not standard practice for a person such as the Resident Daughter to be invited by the practitioner to attend part of the consultation.

Conclusion

1. The appellants appear to have concluded that that the most probable explanation for the opinions expressed by Drs McBride and van den Berg about the Subject Person's capacity was that they were biased or that the assessment each conducted was defective in some way. (We note that the Resident Daughter sought to impugn the opinion expressed by Dr Liew on much the same basis as the appellants: see Second Decision at [22].)
2. The claims made by the appellants that Drs McBride and van den Berg were biased and that the assessments deviated from "standard practice" are not established.
3. While not expressly addressed in the Reasons, it is implicit that the Tribunal found that the opinions Drs McBride and van den Berg were honestly held and not tailored to advantage any party to the proceedings. In addition, it is implicit that the Tribunal found that the methodology each employed in conducting their respective assessments was not flawed for the reasons contended by the appellants. Those findings were reasonably open to the Tribunal.
4. The premise on which Ground 1 rests is not established. This ground must be rejected.

Ground 2: misapplication of the principles stated in P v NSW Trustee and Guardian

1. The appellants contend that in exercising the discretion to revoke the financial management order made in respect of the Subject Person, the Tribunal misapplied the "test of capacity" stated in P v NSW Trustee and Guardian [2015] NSWSC 579. The appellants contend that the Tribunal focussed on whether the Subject Person was capable of managing her affairs on the day of the hearing and failed to consider whether the Subject Person was able to manage her affairs "for the reasonably foreseeable future".
2. The respondents disagree. The Separate Representative submits that the Tribunal correctly applied the relevant legal principles in determining whether the Subject person was capable of managing her affairs.

Consideration

1. Section 25G of the Guardianship Act gives the Tribunal discretion to make a financial management order. Section 25P(2) of the Guardianship Act gives the Tribunal a discretion to revoke a financial management order. To exercise the former, the Tribunal must be satisfied that the person "is not capable of managing his or her affairs" (s 25G(a)). To exercise the latter, the Tribunal must be satisfied that the person "is capable of managing his or her affairs" (s 25P(2)(a) or, that it is in the best interests of the protected person that the order be revoked (s 25P(2)(b)).
2. In P v NSW Trustee and Guardian at [309]-[313], Lindsay J gave detailed consideration to the meaning of the phrase "capable of managing his or her own affairs" as used in ss 25G and 25P of the Guardianship Act. Lindsay J stated that the focus for attention in considering whether a person is or is not capable of managing his or her own affairs: "[I]s whether the person is able to deal with (making and implementing decisions about) his or her own affairs (person and property, capital and income) in a reasonable, rational and orderly way, with due regard to his or her present and prospective wants and needs, and those of family and friends, without undue risk of neglect, abuse or exploitation."
3. At [311], Lindsay J stated that the concept of "capability" is directed to the reasonably foreseeable future as well as to the present time.
4. At [274], Lindsay J cited with approval the following passage from EB & Ors v Guardianship Tribunal & Ors [2011] NSWSC 767 at [136], in which Hallen AsJ paraphrased the statement made by Powell J in McD v McD [1983] 3 NSWLR 81 at 86C-D: "The relevant time for considering whether a person is incapable of managing her, or his, affairs is not merely the day of the hearing, but the reasonably foreseeable future"
5. At [275], Lindsay J went on to elaborate: "Any decision to make, or to revoke, a financial management order, by its very nature, requires a backward glance designed to elucidate the present and the future; a firm grasp of present realities; and an element of anticipation of future problems and solutions."
6. At [46]-[47], the Tribunal summarised the discussion by Lindsay J in P v NSW Trustee and Guardian of the meaning of the phrase "capable of managing his or her affairs". At [48], the Tribunal referred to the statement made by Powell J in McD v McD set out at [106] above.
7. The appellants do not contend that the Tribunal misinterpreted the phrase "capable of managing his or her affairs" as used in s 25P(2)(a) of the Guardianship Act. Rather, they contend that, in evaluating whether the Subject Person was capable of managing her affairs, they misapplied s 25P(2)(a) of the Guardianship Act by focusing on the present rather than the foreseeable future.
8. Undoubtedly the Tribunal considered the question whether the Subject Person was currently capable of managing her financial affairs. See, for example, the Reasons at [51], [63]. However, the Reasons indicate that the Tribunal did not confine itself to that question. At [64], the Tribunal stated, "there is no longer much decision-making complexity" in the Subject Person's life. "She is happy living with [the Resident Daughter], has no intention of moving (at least until her care needs increase markedly) into aged care, and accordingly does not have to contend now with the complexities of aged care financial arrangements". The Tribunal noted that the Subject Person "may have to address the consequences for her aged pension of retaining ownership of her home while living with [the Resident Daughter], but this is a relatively straightforward financial calculus which in the Tribunal's assessment was unlikely to perplex [the Subject Person]". The Tribunal went on to find that the Subject Person "is capable of making her own decisions on personal and financial matters" and "the decisions that she faces are not particularly complicated compared to those that were in prospect at the earlier hearings" (emphasis added).
9. The contention that the Tribunal failed to consider whether the Subject Person would be capable of managing her affairs in the foreseeable future is not established.
10. This ground of appeal is rejected.

Ground 3: the capacity and Dr van den Berg's opinion is based on a mistake of fact

1. The appellants contend that Dr van den Berg's opinion is unreliable because it was based on the erroneous assumption that the first MMSE conducted by Dr Liew was conducted while the Subject Person was recovering from COVID-19. That examination, in fact, took place on 25 June 2021, about three months before the Subject Person contracted COVID-2019 in late September 2021.
2. In oral evidence, Dr van den Berg was asked by the Tribunal to comment on the reason for the difference between her opinion and that of Dr McBride and that expressed by Dr Liew about the Subject Person's capacity to manage her personal and financial affairs. At 37 the Tribunal summarised the explanation given by Dr van den Berg: "(7) Her professional views as to the reasons for the divergences between her and Dr McBride's views and those of Dr Liew; she noted several factors: (a) The tests administered by Dr Liew were in English, not Italian; [the Subject Person] is functionally literate in Italian at a basic level, but with very limited literacy in English; even though the MMSE tests had been "detuned" with a view to addressing [the Subject Person's] limited literacy, the practical ability of this process to address adequately educational, literacy and linguistic issues is open to some question, and there are thus real doubts as to the ability of such a test to capture fairly [the Subject Person's] cognitive condition; (b) The first set of tests were administered shortly after [the Subject Person] had been discharged from hospital for COVID treatment; the phenomenon of "long COVID" is well recognised, and the lingering effects of the virus may well have adversely affected her performance; and (c) The extensive battery of tests applied during her consultation with [the Subject Person] were both more tailored to [the Subject Person's] personal history and linguistic and educational background, and more probing as to her cognitive performance." (emphasis added)
3. As is apparent from paragraph (b) above, Dr van den Berg mistakenly assumed that the first MMSE conducted by Dr Liew occurred on 15 October 2021.

Consideration

1. The mistaken assumption about the timing of the first MMSE conducted by Dr Liew could not be said to be material to Dr van den Berg's opinion on capacity. This is because Dr van den Berg reached and recorded her opinion about the Subject Person's capacity to manage her affairs before she learnt of Dr Liew's opinion or the timing of her first examination.
2. The mistaken assumption was one of three reasons given by Dr van den Berg for her subsequent opinion about the reason for the difference between her opinion and that of Dr Liew.
3. On the other hand, in reaching the capacity finding, the Tribunal had assumed that the examination conducted by Dr Liew was conducted while the Subject Person was recovering from COVID. That is evident from the question put by the Tribunal to Dr van den Berg: "MEMBER BOXALL: Of those events with the conclusion from Dr.Liew in October 2021, was recorded in October 2021, as to [the Subject Person's] relatively lows test on scoring, score on testing and his observation that she had a cognitive deficit and that does strike me as interesting that Dr. Liew's report is broadly contemporaneous with [the Subject Person] having COVID, being released from hospital, being discharged, sometime in October." (Transcript, 5 April 2023, at 0:33:24 - 0:34:35).
4. In Walsh v Visionstream [2004] NSWCA 104 at [23] Beazley J (as Her Excellency then was) endorsed the statement made by Brennan J in Waterford v The Commonwealth [1987] HCA 25; (1987) 163 CLR 54 at [77]: "There is no error of law simply in making a wrong finding of fact". Beazley J went on to say: "In my opinion, it is not possible to convert a wrong finding of fact into a question of no evidence upon which the finding could be made (which was wrong). Nor does it assist to formulate the matter in the way put by counsel, namely that the trial judge made factual findings, which were wrong, upon which to determine the question posed by the legislation."
5. Nonetheless, there will be circumstances where a wrong finding of fact can amount to an error of law. These include cases where there is no evidence to support the impugned finding: Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390; [2010] HCA 32 at [90]-[91]; or where there is no logical connection between the impugned fact and the material on which it was based: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [124], [125].
6. This is not such a case. As explained above, the mistaken assumption about the timing of Dr Liew's examination did not form part of the opinion expressed by Dr van den Berg in her report of 25 January 2023. Nor did it play any part of the opinion reached by Dr McBride. We accept that it probably was seen by the Tribunal as a factor which diluted the weight that could be given to Dr Liew's opinion. However, it could not reasonably be argued that it was the sole or the determinative factor in the Tribunal's assessment of the expert evidence and its decision to prefer the opinion expressed by Drs McBride and van den Berg over that of Dr Liew.

Ground 4: the Tribunal failed to have regard or proper regard to the evidence that the Subject Person had been subject to financial abuse

1. The appellants contend that the Tribunal "totally, blatantly disregarded any evidence and findings made in previous proceedings, showing that mum has been exploited, not only physically but financially". They argue that the evidence establishes a long history of the Subject Person being financially abused and exploited by the Resident Daughter. They argue that the Tribunal ignored that evidence, including the evidence of the Resident Daughter closing the Subject Person's investment account shortly after being appointed as the Subject Person's attorney in 2021 and the "illegal transfer" of $59,000 from the Subject Person to the Resident Daughter.
2. The Separate Representative disagrees that the Tribunal ignored the allegations that the Subject Person had been financially exploited. The Separate Representative contends that the Reasons at [62],[63] demonstrate that the Tribunal considered the concerns expressed by the appellants about the Subject Person being vulnerable to financial exploitation by the Resident Daughter. The Separate Representative points out that the Tribunal reasoned that, given the "professional evidence is (as it now is) that [the Subject Person's] capacity is unimpaired, the conflicting accounts [of the Subject Person being exploited by family members] decline in significance".
3. The Resident Daughter endorsed those submissions. In addition, she repeated the allegations made in previous proceedings that the appellants' primary interest was to force the Subject Person to change her will to their advantage.
4. In reply, the appellants repeated that the Tribunal had ignored their concerns about the alleged "illegal transfer" of $59,000. In addition, they point out that the Second Tribunal found that the Resident Daughter was not a suitable person to be appointed as either a guardian or manager for Subject Person.
5. At the close of the hearing of the appeal, we invited the appellants to provide to the Appeal Panel the extract of the transcript of the hearing before the Tribunal which demonstrates that in those proceedings they raised their concerns about the alleged illegal transfer of $59,000.

Consideration

1. In each of the three proceedings, the appellants alleged that the Resident Daughter had financially exploited the Subject Person. In addition, they alleged that the Resident Daughter had sought to manipulate the Subject Person to change her will in her favour.
2. The contention advanced by the appellants that the two previous tribunals had found proven the allegations they made about the Resident Daughter financially exploiting the Subject Person overstates the position. The First Tribunal did not make express findings about each of the allegations made by the appellants. However, the appellants are correct in so far as the Tribunal found "implausible" the explanation given by the Resident Daughter given for various sums being transferred from the Subject Person's account to her account, including $5000 for a month of the Subject Person's medication and $35,000 for solicitor's fees: see First Tribunal Decision at [57], [91], [92]. That evidence was clearly a factor that led the Tribunal to find that the Subject Person was vulnerable to financial exploitation and incapable of managing her affairs.
3. The Second Tribunal appears to have adopted those findings. In addition, the Second Tribunal found that the Resident Daughter was not an appropriate person to be appointed to manage the Subject Person's affairs for several reasons, including the Resident Daughter's failure to disclose to the Tribunal information about the Subject Person's bank accounts and "unresolved issues" about withdrawals made from the Subject Person's bank account when the Resident Daughter was an attorney: Second Tribunal Decision at [31].
4. Contrary to the submissions made by the appellants in this appeal, in the proceedings before the Tribunal they did not adduce evidence of, or make submissions about the alleged "illegal transfer" of $59,000. As pointed out by the Separate Representative the extracts of the transcript of those proceedings provided by the appellant in answer to our directions made on 22 June 2023 made no mention of that illegal transfer. Those extracts contain a single reference to $5000 for medication and $35,000 for solicitor's fees being transferred to the Resident Daughter. See [131] above.
5. As the Separate Representative points out, the Tribunal did not ignore their concerns that the Subject Person had been financially exploited by the Resident Daughter, and referred to them at [28],[62],[63],[64]. Central to the Tribunal's decision to exercise the discretion to revoke the financial management order was its finding on the expert evidence that the Subject Person's capacity was unimpaired. The Tribunal reasoned that as a consequence, the conflicting accounts given by the family members decline in significance: Reasons at [63]. The Tribunal concluded that the "conflicting assertions made in previous proceedings": "[M]ay well demonstrate a number of things - including favouritism that benefits some family members ahead of others, family animosity, informality in financial arrangements and imperfect communication between family members as well as susceptibility to family influence - but they do not generate the same concern that [the Subject Person] is at risk of exploitation, since the strong professional evidence is that [the Subject Person] is in fact capable of handling her own affairs and making her own personal decisions."
6. We reject the contention that the Tribunal failed to have regard to the allegations of financial exploitation.
7. This ground of appeal is rejected.

Fresh evidence

1. The appellants request that we exercise the discretion conferred by s 80(3) of the NCAT Act to deal with the appeal by way of a new hearing and to permit fresh evidence to be given in that hearing, namely, material produced in answer to a summons by Dr van den Berg (the summons material).
2. The appellants contend that the summons material establishes: 1. that the assessment of the Subject Person conducted by Dr van den Berg was not carried out professionally as evidenced by: 1. Dr van den Berg's actions in giving the interpreter in advance of the assessment the tests she proposed to use in that assessment. This gave the Resident Daughter the opportunity to coach the Subject Person and is the most likely explanation for the Subject Person's favourable results on testing by Dr van den Berg; 2. the discrepancy between Dr van den Berg's clinical notes and the instructions on Addenbrooke's cognitive examination 1. That Dr van den Berg gave false evidence to the Tribunal.
3. The Separate Representative argues that the summons material does not warrant the exercise of the discretion to deal with the appeal by way of a new hearing. That material does not advance the appellants' challenge to the capacity finding or raise additional matters that were not considered by the Tribunal in the hearing. Dr van den Berg's detailed clinical notes confirm that the assessment was conducted diligently and with "professional objective diligence".

The summons material

1. In answer to the Summons issued by NCAT at the request of the appellants, Dr van den Berg produced to NCAT the handwritten notes of the consultation with the Subject Person on 20 January 2023. In a cover letter dated 31 May 2023 addressed to the NCAT Registrar enclosing that material, responding to the request made in the Summons for "a copy of all questions that were sent by Dr van den Berg prior to that consultation for translation into Italian", Dr van den Berg wrote: "No materials or information was sent to the interpreter for translation into Italian. Please note that there was no contact with the Italian interpreter prior to the assessment session. Only some materials required translation ahead of time, namely memory tasks involving verbally-based materials. Some of these materials are already available in different languages - for example the Addenbrooke's Cognitive Examination is available in an Italian version, as well as several other languages. Two other verbal memory tasks were not already available in Italian, so I used the 'Google Translate' website to translate the material. On the day of assessment, I handed the interpreter the translations in order for her to check that they were accurate. She confirmed that they were. No information regarding the interview questions or test material was provided to any party ahead of time. This is standard practice." (Emphasis in original)

Consideration

1. In the cover letter, Dr van den Berg explained that she was unable to produce to the Tribunal "a copy of all questions that were sent by Dr van den Berg, prior to that consultation for translation into Italian" because those documents did not exist. In addition, she explained that Italian versions of some of the tests she used were available. However, for two tests where Italian versions were not available she used "Google Translate" and "handed [them] to the interpreter" to verify the accuracy of those translations. Such course of action was not incorrect, or even, irregular, in the circumstances, and is entirely consistent with the oral evidence given by Dr van den Berg on which the appellants rely: "DR VAN DEN BERG: A lot of the assessment did not require any interpreters cause it was like drawing tasks or other tasks that didn't need to be translated, but I did translate, have the materials that needed to be translated, they were translated ahead of time. They didn't need to be translated at the time, that they were ummmm, just administered by the Interpreter at that time under my instructions." (Transcript, 5 April 2023, at 0:52:00 to 0:53:15).
2. Furthermore, there was no evidence to substantiate the appellants' assertions for the appeal that Dr van den Berg previously knew the Italian interpreter who attended the assessment of the Subject Person on 20 January 2023, or even that any prior acquaintance with the interpreter pointed to some bias or a conflict of interest, affecting the reliability of Dr van den Berg's neuropsychological assessment.
3. Generally, fresh evidence must satisfy three conditions: it could not have been obtained with reasonable diligence in the original proceedings; there is a high degree of probability that, if admitted, there would have been a different result in those proceedings; and the evidence must be credible: Akins v National Australia Bank (1994) 34 NSWLR 155 at 160, Clarke JA (Sheller JA agreeing); Agripower Barraba Pty Ltd v Blomfield (2015) 317 ALR 202; [2015] NSWCA 30 at [68] per Sackville AJA.
4. The Summons material could not be characterised as fresh evidence. With reasonable diligence it could have been obtained by the appellants in the proceedings before the Tribunal. But, more to the point, that material does not support the appellants' claim that before the consultation Dr van den Berg gave the interpreter the tests she used in her assessment; less still does it support the hypothesis that this gave Dr van den Berg and or the Resident Daughter the opportunity to coach the Subject Person before the tests were administered. Nor could it be said to support the allegation that Dr van den Berg gave false evidence. Nor could it be said that there is a high degree of probability that, if admitted, there would have been a different result in the proceedings before the Tribunal.
5. That the Summons material cannot be characterised as fresh evidence is not determinative of the question of whether the discretion to deal with the appeal by way of new hearing should be exercised. Where the Appeal Panel decides to deal with an appeal by way of a new hearing in addition to "fresh evidence", the Appeal Panel may be given "evidence in addition to … the evidence received by the Tribunal at first instance". See ZND v ZNE [2020] NSWCATAP 34 at [62].
6. However, in circumstances where it is not reasonably arguable that the Summons material casts doubt on the reliability of the capacity finding, or that, had that material been before the Tribunal, a different decision might have been made, we have decided that a new hearing is not warranted. In reaching that conclusion, we have taken into account the opposition of the Separate Representative to the appeal being dealt with by a new hearing. The Separate Representative contends that it is in the Subject Person's interest that the appeal proceeding be finalised. The Subject Person expressed to both the Separate Representative and the Appeal Panel that she opposed the appeal and wanted it brought to an end.

Leave ground

1. The appellants contend that the capacity finding was against the weight of evidence and on this basis leave to appeal should be granted.
2. The appellants point out that two previously constituted tribunals had carefully considered the question of the Subject Person's capacity to manage her financial and personal affairs and reached a different conclusion to that reached by the Tribunal in the decision under appeal.
3. The appellants point out that, in reasons given for making the initial guardianship and financial management orders, the Tribunal (the First Tribunal) gave careful and detailed consideration to the history which led to the Son to apply to NCAT seeking review of the purported revocation of the 2017 appointments and the making of the 2021 appointments. In addition, the First Tribunal had proper regard to the claims made by the Subject Person in an affidavit prepared in February 2022: 1. five months earlier, while still unwell with COVID-19, the Resident Daughter and her solicitor presented her with documents purportedly to enable her to reside at the Scalabrini Nursing Home. The documents were in English. She did not understand what she was signing; 2. while at Scalabrini, she was verbally and physically abused by the Resident Daughter and the Granddaughter, they used her money and took out an apprehended violence order to prevent the appellants having contact with her; 3. while at Scalabrini, the Resident Daughter and the Granddaughter cleared her house of all possessions, kept her valuable possessions including a red box with about $150,000 in cash she used to pay bills.
4. The appellants contend that it is telling that on 18 June 2021 and again on 8 January 2022, Dr Liew assessed the Subject Person using an MMSE and, on each occasion, the Subject Person scored 15/23. In circumstances where Dr Liew had the advantage of treating the Subject Person for over 40 years, her opinion that "[the Subject Person's] current cognitive process is inadequate to make sound decisions regarding her own care as well as allocation of her estate" deserved significant weight.
5. As discussed above, the appellants contend that the opinions expressed by Drs McBride and van der Berg were deserving of little weight.

Respondents' submissions

1. The Separate Representative rejects the contention that the capacity finding and the decision to revoke the financial management order were against the weight of evidence. In the Reasons, the Tribunal acknowledged that its finding on capacity differed from that made by the First and Second Tribunal and gave cogent reasons for departing from those findings.
2. The Tribunal was entitled, as it did, to prefer the opinion expressed by Drs van den Berg and McBride over that expressed by Dr Liew. In addition, the Tribunal had before it other evidence which was consistent with the opinions expressed by Drs McBride and van den Berg including the reports prepared by GP, Dr Yu Yu Tin, and Dr Zawab and the material prepared by CatholicCare. CatholicCare provided care services to the Subject Person at home. In the proceedings below, the Public Guardian submitted care plans prepared by CatholicCare dated 22 December 2022. In those plans, CatholicCare reported that the Subject Person was independent in personal care and medication management.

The Tribunal's assessment of the evidence

1. To put the submissions made by the parties in context it is useful to set out in some detail the Tribunal's consideration of the Subject person's capacity to manage her personal and financial affairs.
2. At [29]-[31], the Tribunal summarised the medical evidence before the First and Second Tribunals. At [32], the Tribunal summarised the reasons given by the Second Tribunal for adopting the finding made by the First Tribunal about the "impaired cognitive capacity" of the Subject Person: "(1) Dr Liew's long-standing relationship with [the Subject Person] placed him in a good position to '… assess her cognitive functioning over time and to form a view as to her capacity'; (2) Dr Puglisi provides in his letter '… no indication of how he reached the conclusion that [the Subject Person] was of 'sound mind' and could make her own decisions about her future'; (3) Dr Zawab's report should be given limited weight, since: (a) [the Resident Daughter] was used as interpreter throughout the consultation; because of the intense family conflict, this cast some doubt on the validity of any assessment made by Dr Zawab; (b) A number of relevant factual errors in or omissions from the report concerning [the Subject Person's] circumstances raise significant questions as to the completeness of the information made available to Dr Zawab and thus as to the utility of his assessment; and (c) Dr Zawab specifically states that he did not assess [the Subject Person's] capacity to make decisions regarding her medical care, accommodation and finances; since these were precisely the issues that the Tribunal was required to decide, the utility of the report was inherently limited; and (4) The views of the solicitors were of little assistance."
3. At [34]-[39], the Tribunal summarised the opinions expressed by Drs van den Berg and McBride in their respective reports and the former's oral evidence. With respect to Dr McBride, the Tribunal noted at [35] that she is a qualified and experienced geriatrician who has a specialisation in capacity related issues. In addition, the Tribunal noted that Dr McBride practises primarily in South Western Sydney and by reason of that region's demography likely to be experienced in assessing capacity issues for ageing persons whose first language is not English.
4. At [55], the Tribunal gave these reasons for departing from the conclusions reached by the two previous Tribunals: "(1) [The First and Second Tribunal] proceeded on the best and most reliable evidence then available, being Dr Liew's reports and, in the most recent reviews, for the reasons summarised above reached the conclusion that neither Dr Puglisi's nor Dr Zawab's reports outweighed Dr Liew's conclusions. The present panel respectfully agrees with the earlier panels' conclusions and reasoning having regard to the evidence presented to them. (2) However, the assessments of Drs McBride and van den Berg provide new, better and markedly more convincing assessments of [the Subject Person's] capacity to make informed and reasoned decisions about her personal affairs and her financial affairs than the assessments presented to the earlier panels."
5. In addition to the expert evidence, the Tribunal considered the nature of the Subject Person's financial affairs. The Tribunal found that "there is no longer much decision-making complexity in the [Subject Person's life]": "[S]he is happy living with [the Resident Daughter], has no intention of moving (at least until her care needs increase markedly) into aged care, and accordingly does not have to contend now with the complexities of aged care financial arrangements. She may have to address the consequences for her faged pension of retaining ownership of her home while living with [the Resident Daughter], but this is a relatively straightforward financial calculus which in the Tribunal's assessment was unlikely to perplex [the Subject Person]. Since (as the evidence now strongly indicates): (1) she is capable of making her own decisions on personal and financial matters, and (2) the decisions that she faces are not particularly complicated compared to those that were in prospect at the earlier hearings, …"
6. At [50]-[52], the Tribunal considered the evidence given by the Subject Person. The Tribunal noted that in response to questions from the Tribunal, the Subject Person "outlined lucidly and consistently her practice of attending at her bank every month or so, making a cash withdrawal, and using the cash proceeds to pay bills and meet her other expenditure needs, while keeping the unspent cash safely at home for use as required". The Tribunal noted that this summary was consistent with the summary provided by the Trustee in its report of 20 March 2023. The Tribunal went on to note that the Subject Person was adamant that she wished to regain management of her affairs, "a point noted by both Drs McBride and van den Berg". In addition, the Tribunal noted that the Subject Person's stated wish to remain living with the Resident Daughter was consistent with the history she gave to Drs McBride and van den Berg and the evidence given by her brother in the proceedings.

Consideration

1. The Tribunal found the reasons given by Drs McBride and van den Berg for their respective opinions to be persuasive and cogent. The Tribunal described their respective assessments as "better and markedly more convincing assessments of [the Subject Person's] capacity to make informed and reasoned decisions about her personal affairs and her financial affairs than the assessments presented to the earlier panels". It was open to the Tribunal to reach that conclusion. As discussed above, it is likely that the mistaken assumption made by the Tribunal about the timing of the first examination conducted by Dr Liew diluted the weight the Tribunal gave to Dr Liew's opinion. Nonetheless, it could not be said that as a result the capacity finding was against the weight of evidence.
2. As pointed out by the Separate Representative, the opinions expressed by Drs McBride and van den Berg were not the only evidence which supported the capacity finding. Their respective opinions were consistent with those expressed by geriatrician, Dr Zawab, and GP, Dr Puglisi. Of the experts whose opinion was before the Tribunal, Dr Liew was the only one to conclude that the Subject Person lacked capacity to manage her affairs. Being the Subject Person's GP for over 40 years, Dr Liew's opinion deserved careful consideration. However, it does not follow, as we understand the appellants to contend, that the opinion expressed by Dr Liew trumped the opinions expressed by other experts.
3. The expert evidence was not the only evidence which supported the capacity finding. Before the Tribunal was other evidence, including the evidence given by the Subject Person together with the care plans prepared by CatholicCare.
4. The capacity finding and the ultimate decision made by the Tribunal were reasonably open to the Tribunal. We reject the submissions that either was against the weight of the evidence.
5. Leave to appeal is refused.

Orders 1. Appeal dismissed 2. Leave to appeal is refused.

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: 13 October 2023