YFM v NSW Trustee and Guardian

NCAT Appeal Panel|2023-08-31

REASONS FOR DECISION

YFM (the appellant) appeals from a decision made by the Tribunal on 20 March 2023 to decline to appoint a separate representative for her mother, YFN (the Mother), in proceedings in the Guardianship Division of the NSW Civil and Administrative Tribunal (NCAT). Commenced by the appellant, the trigger for those proceedings was the Mother's appointment of her son (YFO) as her sole attorney in August 2022.
Because the decision under appeal is an "interlocutory decision", the appellant requires leave to appeal: the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), s 80(2)(a). As we explain below, we have decided not to grant leave to appeal.

Statutory framework

Section 45 of the NCAT Act states: 45 Representation of parties (1) A party to proceedings in the Tribunal - (a) has the carriage of the party's own case and is not entitled to be represented by any person, and (b) may be represented by another person only if the Tribunal grants leave - (i) for that person to represent the party, or (ii) in the case of representation by an Australian legal practitioner - for a particular or any Australian legal practitioner to represent the party. … (4) The Tribunal may - (a) appoint a person to act as guardian ad litem for a party, or (b) appoint a person to represent a party, or (c) order that a party be separately represented. (4B) The Tribunal may, at its discretion, revoke any appointment or order made under subsection (4) or (4A).
A person is not entitled to legal aid under the Legal Aid Commission Act 1979 (NSW) merely because the Tribunal has made an order under s 45(4)(c) that a party be separately represented: NCAT Act, s 45(5).
The expression "separately represented" used in ss 45(4)(c) and 45(5) is not defined in the NCAT Act.
In April 2017, the then Division Head of the Guardianship Division, Deputy President Schyvens, issued a Guardianship Division Guideline, 'Representation' (the Representation Guideline). That Guideline explains the role of a separate representative. The Representation Guideline uses the term "separate representative" to mean the person who "separately represent[s]" a party as a result of an order made by the Tribunal under s 45(4)(c) of the NCAT Act. The Representation Guideline states: "A legal practitioner may act as the separate representative of a party. If the Tribunal orders that the subject person is to be separately represented, then the separate representative appears at the hearing to make submissions about the 'best interests' of the subject person (see s 4 of the Guardianship Act). Only the Tribunal may order that a party is separately represented (s 45(4)(c) of the Act)"
At [30] the Representation Guideline states that if "the subject person [the person the subject of the application for orders to be made by the Tribunal] is unable to give instructions to a legal practitioner the Tribunal may appoint a separate representative instead of granting leave for a particular legal practitioner or for any legal practitioner to represent the subject person".
Under the heading "Appointment of a separate representative for the subject person", the Representation Guideline states: "Separate representation Appointment of a separate representative for a party 42. The Tribunal has a broad discretion to decide whether a subject person should be separately represented. The section 4 principles of the Guardianship Act guide the Tribunal's decision to order that a party be separately represented. 43. The Tribunal may decide to appoint a separate representative for the subject person if: • There is a serious doubt about the subject person's capacity to give legal instructions but there is a clear need for the person's interests to be independently represented at the Tribunal hearing or they wish to be represented • There is an intense level of conflict between the parties about what is in the best interests of the subject person • The subject person is vulnerable to or has been subject to duress or intimidation by others involved in the proceedings • There are serious allegations about exploitation, neglect or abuse of the subject person • Other parties to the proceeding have been granted leave to be legally represented • The proceedings involve serious and /or complex issues likely to have a profound impact on the interests and welfare of the person with a disability, such as end of life decision-making or proposed sterilisation treatment. 44. The Tribunal's order for separate representation does not guarantee eligibility for legal aid (section 45(5) of the Act). The provision of a separate representative will be determined by Legal Aid NSW in accordance with their policies. Role of a separate representative 45. The role of a separate representative is different from that of a solicitor acting on instructions. A separate representative is independent and does not act on the instruction of the person they represent. 46. A separate representative should seek out the views and opinions of the person with a disability wherever possible and present these to the Tribunal. 47. A separate representative may also canvass the views of others involved in the proceedings. 48. The role of a separate representative is to make submissions, based on all available information, as to the outcome that the separate representative believes would give paramount consideration to the welfare and interests of the subject person whilst also taking into account the other principles set out in section 4 of the Guardianship Act."
Section 4 imposes a duty on anyone exercising functions under the Guardianship Act, including the Tribunal, to observe the general principles in s 4 of that Act (the section 4 principles): 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.
The NCAT Act reinforces the obligation to have regard to the above principles. Clause 5(1) of Sch 6 to that Act provides that when exercising its Division functions for the purposes of the Guardianship Act, the Tribunal is under a duty to observe the principles set out in s 4 of that Act.

Decision under appeal

On 1 May 2023, in answer to a request by the appellant made under s 62(2) of the NCAT Act, the Tribunal provided the parties with written reasons for the representation decision (the Reasons).
At [12] of the Reasons the Tribunal listed the "grounds" relied upon by the appellant in support of the representation application. They included: 1. that Mr Domencio Mosca, a partner of Marsdens Law Group (Marsdens) and senior in the firm to Mr Balasubramanian, the solicitor given leave to represent the Mother in the proceedings, was the witness to the instruments revoking the 2020 EPoA and making the 2022 EPOA 2. that those instruments were executed a short time before the completion of the sale for $4.8M of the Mother's property 3. that Marsdens notified the appellant of those instruments by letter dated 29 September 2022 4. that at the time of the sale of the Mother's property, the Son purchased two subdivided lots (previously part of the Mother's property) from the purchaser of that property 5. that since 2022 the Son has prevented the Mother from having access to her, the appellant, another son, and their respective families 6. that the Mother's attendance at the hearing before the Tribunal on 23 April 2023 is "solely in the control of her legal representatives".
In its reasons, at [13], in reference the first ground (above), the Tribunal said that "there was no basis to support the contention [that Mr Mosca was the witness to the instruments revoking the 2020 EPoA and making the 2022 EPOA] and it was not pressed" by Mr Miceli, the solicitor for the appellant.
At [15]-[16], the Tribunal addressed the concern raised by the appellant about the possible conflict that arose as a consequence of the sale of the Mother's property and Mr Balasubramanian representing the Mother in the proceedings to determine the Applications (the Proceedings): "14 Mr Miceli supplemented his written submissions with oral submissions. He emphasised the fact that [the Mother] sold property to an entity called Westclaire in July 2022 (the Property Transaction) and soon after [the Son] purchased two of the lots. At about the same time, August 2022, the EPOA was revoked but [the appellant] was not notified until the day after the Property Transaction had settled. 15 At this point I enquired of Mr Miceli what conflict of interest in Marsden's acting arose? Did he rely on one of the Solicitor's Rules? Mr Miceli did not do so. He did submit that Mr Balasubramanian's partner, Mr Mosca, took instructions from [the Son] and acted on the Property Transaction. Mr Miceli submitted that the appointment of a separate representative would give a level of independent oversight and should not affect Mr Balasubramanian's retainer. 16 Mr Balasubramanian told me that Mr Mosca has no involvement in these proceedings. Mr Balasubramanian had no involvement in the Property Transaction. He submitted that there is no evidence of a conflict of interest that would prevent him or his firm acting for [the Mother]. He submitted that the property was sold using a put and call option that was entered into on 1 April 2020. [The appellant] was aware of that fact in April 2020."
At [22] the Tribunal stated: "The appointment of a separate representative is a matter of discretion. In my view, as leave has been granted to [the Mother] to be legally represented, and that appointment has not been revoked, there is no utility in the appointment of [a] separate representative. It would mean in practice [the Mother] had two legal representatives. That may result in her giving partial or conflicting instructions to two different legal representatives (depending on the circumstances in which those instructions are sought from the separate representative of Mr Balasubramanian)."

Proposed grounds of appeal

Because the decision under appeal is an interlocutory decision, leave to appeal is required: NCAT Act, s 80(2)(a). To be granted leave to appeal, the appellant must demonstrate something more than that the Tribunal was arguably wrong in the conclusion arrived at or a bona fide challenge to an issue of fact. Generally, it is appropriate to grant leave to appeal only concerning matters that involve issues of principle, questions of general public importance or a reasonably clear injustice going beyond something that is merely arguable: Collins v Urban [2014] NSWCATAP 17 at [84]; ZQP v ZQQ [2020] NSWCATAP 247 at [20].
In the Notice of Appeal, the appellant listed five proposed grounds of appeal. In oral submissions, the appellant distilled those grounds, contending that in exercising the discretion whether to order that the Mother be separately represented, the Tribunal applied the wrong test: 1. by focusing on the question of whether there was any utility in the Mother being separately represented in circumstances where she was already legally represented and, as a consequence failing to address the merits of the representation application; 2. by failing to observe the section 4 principles, in particular the obligation to give paramount consideration to the Mother's welfare and interests; 3. by placing undue weight on whether Mr Balasubramanian had breached the Legal Profession Uniform Law Australian Solicitors' Conduct Rules 2015 (NSW) (the Solicitors' Conduct Rules) and not giving proper consideration to the potential for breach of those Rules.
In addition, the appellant seeks leave to adduce fresh evidence. She contends that evidence rebuts submissions relied upon by the Tribunal in making the Representation Decision and warrants reconsideration of that decision.

Fresh evidence

We first consider the material said by the appellant to constitute "fresh evidence" because that material is arguably relevant to each ground of appeal. In written submissions the respondents objected to that material being admitted. In oral submissions the respondents withdrew their objection.
The fresh evidence consists of correspondence between Mr Miceli and Mr Balasubramanian, sent after the representation decision was made on 20 March 2023. That correspondence concerns a dispute about the conduct money payable to Mr Mosca in relation to a summons issued by Tribunal at the request of the appellant (the Summons). The Summons required Mr Mosca to attend and to give evidence at the hearing to determine the Applications (the hearing) and to produce documents to the Tribunal. The documents listed in the schedule to the Summons included "all correspondence, notes of appointment, solicitor's notes, drafts …" relating to the preparation and execution of the 2020 instruments, the revocation of those instruments and the 2022 EPoA. Apparently, Mr Mosca acted for the Mother in relation to the sale of the Mother's property to Westclaire Pty Ltd and acted for the Son in the sale by Westclaire to the Son of part of that property.
In a letter to Mr Miceli dated 1 June 2022, Mr Balasubramanian rejected Mr Miceli's offer of $100 for conduct money for Mr Mosca to attend to give evidence in the hearing. Instead, Mr Balasubramanian requested $3,300 in conduct money. In a letter in response dated 5 June 2023, Mr Miceli said that the amount sought was unreasonable. Mr Miceli urged Mr Mosca to "reconsider his position with a view to his duties as an officer to the court".
In a letter to Mr Miceli dated 14 June 2022, Mr Balasubramanian requested $2,357 in conduct money for the production to the Tribunal of the documents listed in the Schedule to the Summons. In a letter dated 16 June 2023, he requested Mr Balasubramanian to indicate the basis upon which it is asserted that the appellant was liable to pay $2,357 for production of the requested documents and contended that the request "is unprofessional in its foreseen effect of stifling the continuation of the proceedings". In a letter in reply dated 27 June 2023, Mr Balasubramanian stated that the amount sought to produce the requested documents was reasonable given the time that had been spent collating those documents and determining whether they were subject to privilege. With respect to the requirement that Mr Mosca attend to give evidence, Mr Balasubramanian stated, "we will not press for payment of the $3,300" but "we intend to seek that Mr Mosca be indemnified for his loss of time to attend the hearing".
In written submissions the appellant said that that correspondence was relevant to issues raised in the appeal because: 1. it indicated that Mr Balasubramanian was acting as "agent for and on behalf of Mr Mosca"; and 2. it contradicted what was put to, and accepted by the Tribunal, that "Mr Mosca was a third party with no involvement in the proceedings".
In addition, the appellant submitted that as the solicitor who prepared the key document the subject of the Application, Mr Mosca will be a material witness in the proceedings and it is likely that his "standards of professional practice will be the subject of examination". Therefore, as an employee of Marsdens and an associate of Mr Mosca, Mr Balasubramanian has a reputational interest in the proceedings. This gives rise, or potentially gives rise, to a conflict between Mr Balasubramanian's duties to the Mother and his personal and professional interests, namely the reputation of Marsdens. If found that the 2022 instruments were not validly made, the reputation of Marsdens may be impugned.

The Solicitors' Conduct Rules

Rules 12 and 27 of the Solicitors' Conduct Rules were identified by the appellant as relevant to the appeal: 12 Conflict concerning a solicitor's own interests 12.1 A solicitor must not act for a client where there is a conflict between the duty to serve the best interests of a client and the interests of the solicitor or an associate of the solicitor, except as permitted by this Rule. … 27 Solicitor as material witness in client's case 27.1 In a case in which it is known, or becomes apparent, that a solicitor will be required to give evidence material to the determination of contested issues before the court, the solicitor may not appear as advocate for the client in the hearing. 27.2 In a case in which it is known, or becomes apparent, that a solicitor will be required to give evidence material to the determination of contested issues before the court the solicitor, an associate of the solicitor or a law practice of which the solicitor is a member must not continue to act for the client if doing so would prejudice the administration of justice.
In oral submissions, the appellant clarified that she was not asserting that the fresh evidence establishes that Mr Balasubramanian had acted in breach of the Solicitors' Conduct Rules. Rather, that evidence could give rise to the perception that Mr Balasubramanian had or might act in breach of those rules.

Appellant's submissions in support of appeal

The appellant contends that in the exercise of the discretion to order, or not to order, that the Mother be separately represented, the Tribunal focussed on whether there was any utility in making the requested order in circumstances where the Tribunal had given leave to the Mother to be legally represented. In adopting that approach the Tribunal failed to consider the merits of, and the factual background to, the representation application.
By s 4(a) of the Guardianship Act, the Tribunal was required to consider whether the welfare and interests of the Mother would be best served if the Mother were to be separately represented, especially given that a live issue in the proceedings was the Mother's capacity to revoke the 2020 instruments and to make the 2022 instruments and whether in doing so the Mother was subject to undue influence by the Son.
By focussing on the question of whether Mr Balasubramanian had breached the Solicitors' Conduct Rules, the Tribunal failed to consider, or to properly consider, whether the Mother's interests would be best served by being separately represented.
The statement made by the Tribunal at [23] that if an order were made that the Mother be separately represented "that may result in [the Mother] giving partial or conflicting instructions to two different legal representatives (depending on the circumstances in which those instructions are sought from the separate representative of Mr Balasubrmanian)", misapprehends the role of the separate representative. A separate representative is not necessarily a legal practitioner and, in any event unlike a legal practitioner is not required to act on instructions.
In the appeal, the appellant clarified that she was not challenging the decision made by the Tribunal to give Mr Balasubramanian leave to represent the Mother, or asking that Mr Balasubramanian's leave be revoked. However, if the Appeal Panel read s 45(4) of the NCAT Act to mean that the Tribunal could not order that a person be both legally and separately represented in proceedings, the appellant requested that Mr Balasubramanian's leave to represent the Mother be revoked.
The appellant accepts that if the Tribunal made an order under s 45(4)(c) of the NCAT Act, it would not guarantee that the Mother would be separately represented and that the decision to fund the appointment of a separate representative is made by Legal Aid NSW, not the Tribunal. Nonetheless, the arguments raised on appeal remain valid as they bear on key issues in the proceedings, namely whether, when she revoked the 2020 instruments, the Mother had capacity to do so and was subject to undue influence by the Son.
The appellant urges the Appeal Panel to grant leave to appeal contending that the appeal raises questions of principle and policy. The question of principle identified by the appellant is that a legal practitioner representing a client should be, and should be seen to be, disinterested in the subject proceedings. The question of principle identified by the appellant is that in proceedings in the Guardianship Division where a disputed factual issue is the capacity of the Subject Person to enter transactions, the evidence about the Subject Person's capacity should be "beyond reproach" and not affected by the actual or perceived interest of their legal representative. Wherever that possibility arises it is necessary and appropriate that the Tribunal order that the Subject Person be separately represented.

Respondents' submissions opposing the appeal

The respondents to this appeal are the Mother, the Son, the NSW Public Guardian and the NSW Trustee and Guardian. The Mother and the Son were the only active respondents to the appeal. For convenience we will refer to the Mother and the Son as "the respondents".
The respondents contend that there was no error in the approach taken by the Tribunal. They reject the contention that in declining to exercise the discretion to order that the Mother be separately represented, the Tribunal applied the wrong test and failed to consider the merits of the representation application.
In deciding whether to order that the Mother be separately represented, the Tribunal was entitled to take into account the utility of the Mother having two representatives in the proceedings. In addition, the Reasons disclose that, in reaching its decision, this was not the only matter the Tribunal took into account. The Reasons reveal that the Tribunal was alive to the controversy surrounding a possible or perceived breach by Mr Balasubramanian of the Solicitors' Conduct Rules.
The respondents submit that the dispute over conduct money revealed by the correspondence between the solicitors is a "red herring". Mr Mosca was entitled to be reimbursed for expenses incurred to answer the Summons. The correspondence reveals nothing more than "a par for the course" dispute between parties over a summons. That material does not tend to demonstrate that Mr Balasubramanian had acted, or was likely to act, in breach of the Solicitors' Conduct Rules. Nor could it be said that had the additional material been before the Tribunal there is a high degree of probability that the Tribunal would have made a different decision.
As to the purported breach of r 27.2 of the Solicitors' Conduct Rules, the submissions advanced by the appellant fail to take into account that the bar on a solicitor continuing to act for a client where it is known, or becomes apparent, that an associate of the solicitor will be required to give evidence material to the determination of contested issues, is only enlivened "if doing so would prejudice the administration of justice". The respondents contend that the appellant has failed to articulate how Mr Balasubramanian, by continuing to act for the Mother in circumstances where Mr Mosca has been called to give evidence, "would prejudice the administration of justice".
Finally, the statement made by the Tribunal at [23], could not be said to indicate that the Tribunal misapprehended the different roles and obligations of a legal practitioner given leave to represent a party and those of a separate representative. The Tribunal was entitled, as it did, to have regard to the "awkward situation" that might arise if the Mother were to give instructions to her legal representative, and be met by the conduct of separate representative, who would at least need to be cognisant of those instructions.

Consideration

An issue raised but not fully explored in argument on appeal is whether s 45(4) of the NCAT Act permits the Tribunal to appoint a person to represent a party under s 45(4)(b) of that Act and to order that that party be separately represented under s 45(4)(c) of that Act. It is not necessary to come to a concluded view on this question. While at [22] the Tribunal expressed doubts about whether s 45(4) of the NCAT Act conferred power to make orders in relation to the same party under both ss 45(4)(b) and 45(4)(c) of that Act ̶ "it is not anticipated [by s 45(4) of the NCAT Act] that a person would be legally represented and separately represented" ̶ the Tribunal did not dispose of the representation application on that basis. Rather, the Tribunal considered that application on the construction of s 45(4) of the NCAT Act favourable to the appellant, that is, that it permitted the Tribunal to make orders under both ss 45(4)(b) and 45(4)(c) of that Act.
Being the exercise of a discretionary power, to succeed in the proposed appeal it is necessary for the appellant to establish error in the House v The King sense (see House v The King (1936) 55 CLR 499; [1936] HCA 40 at 504-505), which includes that the decision maker failed to take into account or give sufficient weight to a relevant consideration.
Section 45(4) of the NCAT Act confers on the Tribunal a broad discretion to order that a party be separately represented. The only constraints on the exercise of that discretion are the obligation of the Tribunal to apply the "guiding principle" of the NCAT Act, the facilitation of "the just, quick and cheap resolution of the real issues in the proceedings" (NCAT Act, s 36(2)), together with the obligation to observe the principles in s 4 of the Guardianship Act.
The primary submission made by the appellant is that the Tribunal disposed of the representation application solely or largely on the basis that there was no utility in the Mother being separately represented in circumstances where she was already legally represented. By adopting that approach the Tribunal failed, as required by s 4(a) of the Guardianship Act, to give "paramount consideration" to the "welfare and interests" of the Mother.
This submission is rejected for these reasons.
First, a fair reading of the Reasons does not support the premise on which this submission is based: that the Tribunal disposed of the representation application solely on the basis that as the Mother had been given leave to be legally represented, an order that she be separately represented lacked any utility.
At [14]-[15], the Tribunal considered the arguments made by the appellant about the possibility of a conflict arising between Mr Balasubramanian's duty to the Mother and his professional interests. At [16], the Tribunal referred to the argument advanced by the appellant that the "appointment of a separate representative would give a level of independent oversight and should not affect Mr Balasubramanian's retainer". At [19], under the heading "Decision", the Tribunal found that the available material did not establish a "conflict of interest that would justify impugning the continued involvement of Mr Balasubramanian and his firm". At [23], the Tribunal explained why it considered that there would be difficulties if the Mother had two legal representatives and that the appointment of a separate representation would lack utility.
The authorities have consistently emphasised that reasons for decision must be read as a whole and not approached with an "eye keenly attuned to the perception of error": Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 272; Re Minister for Immigration and Multicultural Affairs, Re; Ex parte Applicant S20/2002; Appellant S106/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 30; 77 ALJR 1165 (Ex parte Applicant) at [147] (Kirby J); New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231 (Orr) at [77(iii)] (Bell P). In addition, the authorities emphasise that the "expression of conclusions in a certain sequence [by a decision maker] does not indicate a failure to consider the evidence as a whole": Ex parte Applicant at [14]; Orr at [77(i)].
The sequence in which the Tribunal dealt with the appellant's argument that it would be in the best interests of the appellant to be separately represented by giving a "level of independent oversight", that is, before the section of the Reasons headed "Decision" (at [19]-[24]), does not imply, as suggested by the appellant, that the Tribunal failed to consider that argument. It is apparent from the Reasons that the Tribunal was alive to the argument that there was a risk that Mr Balasubramanian might fail in his duty to act in the Mother's best interests and therefore an order that the Mother be separately was warranted. The Tribunal addressed that argument and found that "there is no conflict of interest that would justify impugning the continued involvement of Mr Balasubramanian and his firm". That finding was reasonably open to the Tribunal on the available material.
Second, implicit in the submission that the Tribunal failed to give paramount consideration to the Mother's welfare and interests is the suggestion that, had the Tribunal done so, it was all but inevitable that the Tribunal would have exercised the discretion to order that the Mother be separately represented.
The expression "welfare and interests" is not defined by the Guardianship Act. It is an expression capable of broad meaning. It was for the Tribunal to decide the factors which were relevant to an assessment of the Mother's interests and welfare in the circumstances of the facts of this case. Section 4(a) of the Guardianship Act could not be read, as the appellant apparently suggests, as requiring the Tribunal to adopt a protectionist approach. The Tribunal was entitled, indeed was required, to take into account the Mother's view that she opposed the appointment as a separate representative and to restrict her freedom of decision-making as little as possible: Guardianship Act, ss 4(b), 4(d). These were factors relevant to the Tribunal's consideration of the Mother's welfare and interests.
Although the Tribunal did not say so in terms, a tribunal is entitled - absent evidence to the contrary - to assume that a lawyer representing a party has received instructions and has the professional capacity to make an assessment of the client's best interests in the known circumstances of the case. Lawyers must apply their knowledge and experience to the facts of the case in the interests of their clients.
A tribunal is also entitled - absent contrary evidence - to assume that the legal representative has knowledge of the relevant legislation and operative principles of the jurisdiction in which they are appearing. Thus, the Tribunal was entitled to assume that the Mother's welfare and interests would be protected by her legal representative.
The argument that the appointment of a separate representative would ensure that the Tribunal had the benefit of "impartial evidence" appears to be a reference to the practice of the separate representative speaking to the Subject Person and giving a report of those discussions to the Tribunal. That issue was canvassed at the hearing where it was put by Mr Miceli that "there's nothing to be lost in having an independent person speak to the [Mother] and then give … his view to the Tribunal": Transcript of hearing, 20 March 2023 (the Transcript) at p 9(20) to p 9(40). Later, apparently in reference to the Representation Guideline at [38], the Tribunal referred to the practice where it is alleged that the Subject Person is subject to undue influence, of the Tribunal speaking with that person alone in the absence of the other parties, "in my experience it works really well, because people speak freely": Transcript p 13(10) to p 13(22). This exchange indicates that the Tribunal was alive to the appellant's concern of the risk that the evidence and submission given by the Mother might be contaminated by the undue influence exerted by the Son.
With respect to the correspondence between the solicitors about the Summons, we are not persuaded it contradicts the claim put to, and accepted by the Tribunal, that "Mr Mosca was a third party with no involvement in the matter": Reasons at [19]. It is apparent that the involvement to which the Tribunal was referring was as discussed in the hearing, Mr Mosca's involvement as a representative of the Mother in the proceedings, not as Mr Mosca's involvement as a witness in those proceedings: see Transcript p 8 (30-36).
We accept the proposition that Mr Balasubramanian's involvement in the dispute over the Summons on behalf of Mr Mosca could be perceived to cast doubt over whether he complied with his duty to act in the best interest of the Mother. However, it puts it too high to say that it establishes that he has acted or might act in breach of that duty. We are not persuaded that had the correspondence relating to the Summons been before the Tribunal there is a high degree of probability that the Tribunal would have made a different decision. If the Tribunal were to find that there was a material risk that Mr Balasubramanian might act in breach of his duty to the Mother, it would be open to Tribunal to revoke his leave to represent the Mother.
Finally, read fairly and in context, the statement made by the Tribunal at [23] that an order that the Mother be separately and legally represented "may result in [the Mother] giving partial or conflicting instructions to two different legal representatives (depending on the circumstances in which those instructions are sought from the separate representative of Mr Balasubrmanian)", does not in our view demonstrate as the appellant contends that the Tribunal failed to appreciate the distinction between the role and obligations of a separate representative and a legal representative. That issue was not pressed by the appellant in oral submissions.
The proposed grounds of appeal are not reasonably arguable. We are not persuaded that the purported principle and/or question of general public importance identified by the appellant warrants leave to appeal being granted.

Order

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: 04 October 2023

Legal Profession Uniform Law Australian Solicitors' Conduct Rules 2015(NSW)

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