YJC v Public Guardian

NCAT Appeal Panel|2024-05-16|Before: Armstrong J

Protected Estates Act 1983 (NSW), s 22 Cases Cited: Ability One Financial Management Pty Ltd v JB by his Tutor AB [2014] NSWSC 245 AC v R (2023) 111 NSWLR 514; [2023] NSWCCA 133 Bisley Investment Corporation v Australian Broadcasting Tribunal (1982) 40 ALR 233; [1982] FCA 58 Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 115 ALR 1; [1993] FCA 456 Davis v NSW Minister for Health [2023] NSWCATAP 211 Ex parte Applicant S20/2002; Appellant S106/2002 v Minister for Immigration and Multicultural Affairs (2003) 198 ALR 59; [2003] HCA 30 Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22 Gautam v Health Care Complaints Commission [2021] NSWCA 85 Gett v Tabet (2009) 254 ALR 504; [2009] NSWCA 76 Henadeck Pty Ltd v Independent Liquor and Gaming Authority; Niraula v Independent Liquor and Gaming Authority [2020] NSWCATAP 200 Holt v Protective Commissioner (1993) 31 NSWLR 227 M v M [2013] NSWSC 1495 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Darnia-Wilson (2022) 289 FCR 72; [2022] FCAFC 28 New South Wales Land and Housing Corporation v Orr (2019) 100 NSWLR 578; [2019] NSWCA 231 Commissioner of Taxation v Salenger (1988) 81 ALR 25; [1988] FCA 176 Re X [2016] NSWSC 275 Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 Rinehart v Rinehart [2020] NSWSC 68 Husband v Public Guardian [2016] NSWSC 1720 Woolcock Street Investments Pty Ltd v CDG Pty Ltd (2004) 216 CLR 515; [2004] HCA 16 WorkCover Corporation v Jakas (2003) 86 SASR 20; [2003] SASC 155 ZBC v ZBD [2016] NSWCATAP 264 Texts Cited: Herzfeld, Prince, Interpretation (2020) at [33.320], [35.0], [35.50] Category: Principal judgment Parties: YJC (First Appellant) YJD (Second Appellant) Public Guardian (First Respondent) YJE (Second Respondent) YJF (Third Respondent) NSW Trustee and Guardian (Fourth Respondent) YJG (Fifth Respondent) Representation: Appellants (Self-Represented) Public Guardian (no appearance) YJE (Self-Represented) YJF (Self-Represented) NSW Trustee and Guardian (no appearance) YJG (Self-Represented) File Number(s): 2024/00044624 Publication restriction: Pursuant to s 65 of the Civil and Administrative Tribunal Act 2013 (NSW), the publication of the name of any of the parties or other people referred to in this decision including the publication of any information, picture or other material that identifies them, or is likely to lead to their identification, is prohibited. Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Guardianship Division Citation: N/A Date of Decision: 19 October 2023 Before: J A McAteer, Senior Member (Legal) J McAuliffe, Senior Member (Professional) K Clark, General Member (Community) File Number(s): NCAT 2023/00203653

Reasons for decision

In November 2021, then 89-year-old YJF (the Mother) executed an instrument appointing three of her six children, YJC, YJD and YJE, as her attorneys. In a separate instrument made on the same day, the Mother appointed YJC, YJD and YJE as her enduring guardians. In June 2023, the Mother purportedly revoked the appointments of YJC and YJD.
In October 2023, following applications made by YJC and YJD (the appellants), the Guardianship Division of the NSW Civil and Administrative Tribunal (NCAT) made several decisions, including: 1. to make a financial management order in respect of the Mother and to commit the management of her estate to the NSW Trustee and Guardian (the NSW Trustee); 2. to dismiss the application made by the appellants to review the purported revocation of their appointment as the Mother's attorneys; and 3. to dismiss the application made by the appellants to review the appointment of YFE (the Sister) as the Mother's enduring guardian.
The appellants appeal from each of the above decisions. A central issue raised by the appeal is whether, by committing the management of the Mother's estate to the NSW Trustee, the Tribunal failed to apply the legal principle said to have been established by the NSW Court of Appeal in Holt v Protective Commissioner (1993) 31 NSWLR 227 (Holt) that the power conferred by s 25M of the Guardianship Act 1987 (NSW) to commit the estate of a "protected person" to the NSW Trustee can only be exercised as a "last resort".
YJE opposes the appeal.
We explain below our reasons for allowing the appeal in part.

Background facts

The following facts are taken principally from the decision under appeal.
The Mother has a diagnosis of dementia.
In September 2015, the Mother executed an enduring power of attorney appointing her husband as attorney and the appellants as substitute attorneys. In a separate instrument executed on the same day, the Mother appointed her husband as enduring guardian and the appellants as substitute enduring guardians.
On 18 November 2021, following the death of her husband, the Mother made a fresh enduring power of attorney appointing the appellants and the Sister, as her attorneys, authorised to act jointly and severally for transactions of up to $500, and to act jointly for all other transactions (the 2021 EPoA). On the same day, in a separate instrument, the Mother appointed the appellants and the Sister as her enduring guardians, authorised to act jointly and severally (the 2021 EGA).
In separate letters addressed to each of the appellants, dated 12 June 2023, the Mother wrote: "Dear [appellant] I hereby revoke all powers of attorney and guardianship which I have granted or am alleged to have granted in your favour."
In response to the purported revocation of their appointment as the Mother's attorneys and enduring guardians, the appellants made three applications to NCAT: 1. on 26 June 2023, seeking review of the 2021 EPOA; 2. on 6 September 2023, seeking review of the purported revocation of the 2021 EPoA; and 3. on 6 September 2023, seeking review of the 2021 EGA.
In those applications, the appellants claimed that in June 2023 the Mother lacked capacity to revoke their appointment as attorneys and enduring guardians. In addition, the appellants made a series of allegations about the Sister, including that she had withdrawn over $200,000 from the Mother's bank account in circumstances where the Mother reports "not knowing or not remembering when, who, by or what for"; that the Sister has subjected the Mother to "undue influence"; that despite their repeated requests, the Sister and her children, who are "perceived to be behind the financial elder abuse", have failed to answer their questions about the depletion of the Mother's estate.
In addition, the appellants contend that by June 2023 the Mother lacked capacity to revoke their appointments. The appellants allege that the Sister was behind the preparation of the letter of 21 June 2023 in which the Mother said that she had revoked their appointments as attorneys and guardians. That letter was prepared by a solicitor at his home and, according to the appellants, was in breach of his ethical obligations to the Mother and the NSW Law Society's Guidelines. The solicitor was related to the Sister's daughter-in-law.

Decision under appeal

On 19 October 2023, following a hearing, the Tribunal (J McAteer, Senior Member (Legal), J McAuliffe, Senior Member (Professional), and K Clark, (General Member)): 1. exercised the discretion conferred by s 36(1) of the Powers of Attorney Act 2003 (NSW) to review the 2021 EPoA; 2. exercised the discretion conferred by s 37(1) of the Powers of Attorney Act to treat the application made by the appellants for review of the 2021 EPoA as an application for a financial management order under the Guardianship Act; 3. made a financial management order under the Guardianship Act and committed the management of the Mother's estate to the NSW Trustee; and 4. exercised the power under s 55(1)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) to dismiss the application to review the purported revocation of the 2021 EPoA, and the application to review the 2021 EGA.

Statutory framework

Contained in Div 1 (Making of financial management orders) of Pt 3A (financial management orders), s 25E(1) of the Guardianship Act states that the Tribunal may order that the estate of a person be subject to management under the NSW Trustee and Guardian Act 2009 (NSW). The Tribunal may exclude a specified part of the estate from the financial management order: Guardianship Act, s 25E(2).
The Tribunal may make a financial management order in respect of a person if, after considering the person's capability to manage his or her own affairs, the Tribunal is satisfied that the person is not capable of managing their affairs; that there is a need for another person to manage those affairs on the person's behalf; and, that it is in the person's best interests that the order be made: Guardianship Act, s 25G.
Where the Tribunal makes a financial management order in respect of the estate (or part of the estate) of a "protected person" the Tribunal may appoint a suitable person as manager of the estate or commit the management of that estate to the NSW Trustee: Guardianship Act, s 25M. 25M Tribunal may commit estate of protected person to management (1) If the Tribunal makes a financial management order in respect of the estate (or part of the estate) of a person, the Tribunal may, by order - (a) appoint a suitable person as manager of that estate, or (b) commit the management of that estate to the NSW Trustee. …
A protected person is defined to mean a person whose estate (or part of whose estate), is subject to a financial management order: Guardianship Act, s 25D.
Section 4 imposes a duty on the Tribunal when exercising functions under the Guardianship Act to observe the principles 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

The appellants have a right to appeal the decision under appeal, an "internally appealable decision", on any question of law or, with the leave of the Appeal Panel, on any other ground: NCAT Act, s 80(2)(b).
The appellants do not challenge the decisions made by the Tribunal: 1. to treat their application for review of the making of the 2021 EPoA as an application for a financial management order under s 37 of the Powers of Attorney Act; and 2. to make a financial management order under the Guardianship Act.
However, the appellants challenge the following decisions: 1. To commit the management of the Mother's estate to the NSW Trustee under s 25M of the Guardianship Act; 2. to dismiss the application to review the purported revocation of the 2021 EPoA under s 55(1)(b) of the NCAT Act; and 3. to dismiss the application to review the 2021 EGA under s 55(1)(b) of the NCAT Act.
We will address separately the grounds of appeal raised by the appellants in relation to each decision.

First decision under appeal: Decision to commit the management of the Mother's estate to the NSW Trustee

The appellants contend that this decision raises the following questions of law: 1. whether the Tribunal failed to apply the principle said to be enunciated by the Court of Appeal in Holt, that the power to commit the estate of a protected person to the NSW Trustee can only be exercised as a "last resort", where there is no suitable person available to be appointed; 2. whether the Tribunal failed to give adequate reasons for its decision to commit the estate of the Mother to the NSW Trustee; and 3. whether the Tribunal made a "legally unreasonable decision".
The Sister disputed that the Tribunal made the types of legal errors identified by the appellants but did not engage with the substance of the arguments made by the appellants.

Ground 1: whether the Tribunal was bound to apply the "last resort principle"

The appellants contend that Holt is authority for the proposition that s 25M of the Guardianship Act is to be interpreted to mean that where a suitable person(s) is available to be appointed as manager of the estate of a protected person, the power to commit the management of that estate to the NSW Trustee can only be exercised where there is no "suitable person" to appoint as manager, as a "last resort". In these reasons we refer to the principle said to be established by Holt as the "last resort principle". In addition, the appellants contend that the "last resort principle" has been affirmed and applied by the NSW Supreme Court in several decisions, including, M v M [2013] NSWSC 1495; Re X [2016] NSWSC 275; Ability One Financial Management Pty Ltd v JB by his Tutor AB [2014] NSWSC 245 (Ability One) and Husband v Public Guardian [2016] NSWSC 1720.
The appellants' contention raises three questions: 1. whether the so-called "last resort principle" forms part of the ratio decidendi (reason for deciding) in Holt and/or the decisions of the Supreme Court on which the appellants rely? 2. if not, whether that principle "seriously considered dicta"? 3. if so, whether that principle is "plainly wrong"?

Legislative history: s 25M of the Guardianship Act

Before considering these questions, it is necessary to briefly refer to the legislative history of s 25M of the Guardianship Act.
In Holt, the Court of Appeal considered the operation of s 22 of the Protected Estates Act 1983 (NSW). In materially identical terms to s 25M of the Guardianship Act, the version of s 22 considered by the Court of Appeal in Holt provided: 22 Management of estates of protected persons other than patients The Court may, by order, appoint a suitable person as manager of the estate of a protected person in respect of whom it has made an order under section 13 or may, by such an order, commit the management of the estate of any such protected person to the Protective Commissioner.
The Protected Estates Act permitted the Supreme Court to make a declaration that a person is incapable of managing his or her affairs, and to order that the estate of the person be subject to management under that Act. Following such order, s 22 of the Protected Estates Act permitted the Court to appoint a suitable person as manager of the estate of the protected person or to commit the management of the estate to the Protective Commissioner.
In 1983 and 1987, the Protected Estates Act was amended to permit the then Guardianship Board (subsequently the Guardianship Tribunal, and now the Guardianship Division of NCAT), to make orders to the same effect under the Protected Estates Act: Protected Estates (Disability Services and Guardianship) Amendment Act 1987 (NSW), Sch 1, [3]; Guardianship (Amendment) Act 1993 (NSW), Sch 2.
In 1997, the Guardianship Act was amended to transfer the provisions relating to the then Guardianship Tribunal's powers to make financial management orders from the Protected Estates Act to the Guardianship Act. Section 25E of the Guardianship Act empowered the Tribunal to make financial management orders, defined as orders that the whole or part of a person's estate be subject to management under the Protected Estates Act: Guardianship Amendment Act 1997 (NSW), Sch 1, [27]. Section 25M was inserted into the Guardianship Act to permit the Tribunal to appoint a suitable person as manager of the person's estate, or to commit the management of the estate to the Protective Commissioner: Guardianship Amendment Act, Sch 1 [27].
In 2009, the Protected Estates Act was repealed by s 4 of the NSW Trustee and Guardian Act. That Act merged the former Office of the Protective Commissioner and the Public Guardian and established a statutory agency, the NSW Trustee and Guardian. Reflecting the abolition of the Office of the Protective Commissioner and the repeal of the Protected Estates Act, the language of the Guardianship Act was amended to replace the references to the "Protective Commissioner" with the "NSW Trustee" and the "Protected Estates Act 1983" with the "NSW Trustee and Guardian Act 2009": NSW Trustee and Guardian Act, Sch 1, cl 3. The text of s 25M(1) of the Guardianship Act was amended accordingly, but otherwise remains unchanged: NSW Trustee and Guardian Bill 2009 (NSW), Sch 2.27 [5]-[7].

Doctrine of precedent

Courts are bound by the "ratio decidendi" of any court above them in the judicial hierarchy: Woolcock Street Investments Pty Ltd v CDG Pty Ltd (2004) 216 CLR 515; [2004] HCA 16 [60]. In AC v R (2023) 111 NSWLR 514; [2023] NSWCCA 133 at [34], the NSW Court of Criminal Appeal explained that the orthodox position at English law is that a "conclusion of law will form part of a case's ratio decidendi only if it was essential or necessary to the outcome of the case (in the sense that the judgment or orders of the court would not have been the same if not for the conclusion in question)".
In addition, courts are bound to apply "seriously considered dicta" of any court above them in the judicial hierarchy unless they consider that dicta to be "plainly wrong": Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22 at [134]-[135]; Gett v Tabet (2009) 254 ALR 504; [2009] NSWCA 76 at [286]. Obiter dicta is a "statement of principle that is not necessary to found the judgment or order of the Court, that is a statement which if not made or if decided differently, would not alter the outcome": AC v R at [35], [137].
The distinction between ratio and obiter is easy to state but sometimes less easy to identify and can be elusive: AC v R at [33], [40].
While not a court, the Tribunal is nonetheless bound by the ratio decidendi of the NSW Court of Appeal and Supreme Court (see, for example, Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Darnia-Wilson (2022) 289 FCR 72; [2022] FCAFC 28 at [22]; WorkCover Corporation v Jakas (2003) 86 SASR 20; [2003] SASC 155 (at 30-32); Rinehart v Rinehart [2020] NSWSC 68 at [340], [351]; Commissioner of Taxation v Salenger (1988) 81 ALR 25; [1988] FCA 176 at 34). In addition, the Tribunal is bound by seriously considered dicta of the NSW Court of Appeal and Supreme Court unless it considers those dicta to be "plainly wrong": Henadeck Pty Ltd v Independent Liquor and Gaming Authority; Niraula v Independent Liquor and Gaming Authority [2020] NSWCATAP 200 at [94].
It follows that if, as the appellants contend, the "last resort principle" formed part of the ratio decidendi of Holt or any of the Supreme Court decisions on which they rely, in applying s 25M of the Guardianship Act, the Tribunal was bound by that principle. In addition, if that principle constitutes seriously considered dicta of any of those decisions, the Tribunal was bound to apply that principle unless it considered that dicta to be "plainly wrong".
To determine whether the "last resort principle" was binding on the Tribunal, we must first consider the issues which the Court of Appeal was required to resolve in Holt and the reasons it gave for upholding the appeal against the decision made by Powell J at first instance and remitting the application to the Protective Division for rehearing.

Holt

In 1991, the Supreme Court declared that former police officer, Mr Michael Holt, was incapable of managing his affairs and ordered that his estate be committed to the management of the NSW Protective Commissioner following an application made by Mr Holt's wife. Mr Holt had sustained a serious brain injury in the course of duty as a police officer.
The following year, Mrs Holt commenced proceedings in the Family Court of Australia seeking dissolution of her marriage to Mr Holt and a property settlement. Concerned that the Protective Commissioner might settle the matrimonial property claim in terms overly favourable to Mrs Holt to the detriment of their incapacitated brother's interests, two of Mr Holt's brothers commenced proceedings in the Supreme Court and requested that they be appointed managers in place of the Protective Commissioner. In the alternative, the brothers requested the Supreme Court to require that the Protective Commissioner consult them and seek the approval of the Court before entering into any property settlement with Mrs Holt.
Powell J expressed misgivings about the brothers' motives for applying to take over the management of Mr Holt's estate and whether they had demonstrated that they were better placed than the Protective Commissioner to manage that estate. In dismissing the brothers' application, Powell J said: "[W]hen, in a case in which there is an installed manager, a person … seeks to have the management of the protected person removed from the installed manager and vested in another, that person bears the onus of demonstrating a case for change, the grounds upon which such a change might be based being limited to either: 1. demonstrated incompetence or impropriety on the part of the installed manager; or 2. a clear and convincing demonstration that the form of management proposed would better advance the interests of the protected person than the existing management."
The brothers appealed from that decision and raised two grounds of appeal: first, that they had been denied procedural fairness and, second, that in determining their application to be appointed in place of the Protective Commissioner, Powell J had applied the wrong test. The Court of Appeal upheld the appeal on both grounds. The first ground is irrelevant to this appeal. In relation to the second ground, the Court of Appeal held that in applying s 22 of the Protected Estates Act, Powell J had applied the wrong test. It is in the analysis of the second ground of appeal that the concept of a so-called "last resort principle" is said to have been planted.
Kirby P, (Shellar JA and Windeyer A-JA concurring) commenced his consideration of Powell J's analysis by stating that s 22 of the Protected Estates Act, which empowers the Court to appoint a manager, is "in the widest possible terms" (at 237) and, by the operation of the Interpretation Act 1987 (NSW), includes the power to remove a manager. Kirby P went on to state the ratio (at 238): "There is nothing in s 22 of the Act which refers to the need for 'a clear and convincing demonstration', one way or the other, for the appointment of the Protective Commissioner, the appointment of persons other than the Protective Commissioner or the removal of a person once appointed and his, her or their replacement by another 'suitable person' as manager. The discretion is reposed in the court in broad terms. It is to be exercised for purposes which are somewhat different from those of a general trustee or a company or bankrupt's receiver. It is not solely for the investment of funds, their proper management and disbursement, the keeping of audited accounts and other financial responsibilities. What is involved goes beyond this. In the case of a protected person it includes ensuring that that person has a quality of life which is as beneficial to the person as the resources available to the manager permits."
Kirby P said that the "abiding and dominant duty of the protected person's manager" is to be "guided always by the welfare of the beneficiary as the dominant consideration" (at 238): "Because that is the abiding and dominant duty of the protected person's manager, it is this rule which must be accepted by the court. To the extent that a suggested 'clear and convincing demonstration' stands as an impediment or competitor to the achievement of the best interests of the protected person (so defined) I respectfully agree that it is incompatible with the Act's language and purpose."
Kirby P went on to state that where the Protective Commissioner has been validly and properly appointed but it is later shown that, on balance, it is in the best interests of the protected person that some other suitable person or persons should be appointed as manager of the protected person's estate, the court is duty-bound to appoint that other person(s) (at 238): "[The Court] should not hold back either because no 'clear and convincing demonstration' has been shown that the Protective Commissioner should be replaced or because other criteria apt for the removal of trustees generally or of corporate or bankrupt's receivers have not been established in this case."
It is only after having identified the error made by Powell J in interpreting and applying s 22 of the Protected Estates Act and stating the correct test - that the welfare of the protected person is the dominant consideration - that Kirby P went on to refer to a "sensible hierarchy of choices" for courts exercising the discretion conferred by s 22 of the Protected Estates Act to appoint or to remove a manager of the estate of a protected person. Kirby P said (at 238-239): "It will not have escaped attention that when parliament enacted s 22 of the Act (above) it provided first that a "suitable person" should be appointed as manager of the estate of a protected person and only secondly that the management of that estate should be committed to the Protective Commissioner. This is a sensible hierarchy of choices. In many estates of modest size it will be appropriate where there is no risk of conflict of interest and duty, and where a relationship of love or affection is established, to reflect in the statutory appointment the form of management which for millennia, in primitive societies as in civilised communities, has been followed when a family member is found to be incapable of managing his or her affairs. It is normal then for the family to step in. The courts conserved their intervention to cases where there is no family or where no family are willing to act or for special reasons of incompetence or conflict of interest it is unsuitable to appoint a family member. There is a danger in the administration of the Act of overlooking not only this natural order of things but the way in which parliament has reflected it in the terms of s 22 of the Act." (Emphasis added.)
Kirby P's discussion (above) was unnecessary to decide the question that the Court of Appeal was asked to decide, namely, whether Powell J had correctly applied s 22 of the Protected Estates Act. Properly read, the statement "first that a 'suitable person' should be appointed as manager of the estate of a protected person and only secondly that the management of that estate should be committed to the Protective Commissioner" was neither essential nor necessary to the outcome of Holt and does not form part of the ratio of that decision. As stated at [44] above, the ratio of Holt was that in applying s 22 of the Protected Estates Act, the welfare of the protected person is the dominant consideration.
In the 17 lines of the paragraph in which he dwelt on the topic, Kirby P made no reference to precedent, legal authority in which the point had been argued previously but not resolved, principles of statutory construction or even authoritative works on the sociology of the family which might have provided a foundation for his remarks. Rather, he appears to have relied on common knowledge of cultural norms concerning families caring for one another. His remarks appear to have been, in effect, off the cuff and could not, therefore, be characterised as "seriously considered dicta".
Dicta are of varying degrees of authority. A passing remark or spur of the moment comment which does not bear directly on the issue to be resolved carries far less weight than 'a considered judgment on a point fully argued': Herzfeld, Prince, Interpretation (2020) [33.320], [35.0], [35.50]. As we interpret Kirby P's remarks on the 'sensible hierarchy of choices', the dicta fall into the former category.
We are bolstered in this view by the fact that, having been invited by the parties to set down 'guidelines' to assist the judge in the Protective Division of the Supreme Court in any future case in which an application might be made to replace the Protective Commissioner or another person appointed to manage the estate of a protected person, Kirby P set out (at 241-243) a checklist of seven considerations, none of which could be said to endorse the "last resort principle" or to elevate either family members or the Protective Commissioner above the other. The third of those considerations that "the abiding rule in the exercise of powers under the Act is the achievement of best interests of the protected person" (at 241-242) reflects what we identified to be the ratio of Holt. That consideration, in our view, is not consistent with the existence of a hierarchy or a presumption in favour of family members. The sixth consideration lists the "competing advantages of appointing a family member or the Protective Commissioner": Holt (at 242-243). Again, this, on its face, seems inconsistent with the existence of a presumption in favour of family members and a hierarchy.
For these reasons, we conclude that the last resort principle did not form part of the ratio of Holt, nor did it constitute seriously considered dicta.

Supreme Court considers Holt

In a series of decisions, including M v M, Ability One and Re X, Lindsay J has considered Holt.
In M v M at [25], Lindsay J observed that until Holt was decided, the Protective Division of the Supreme Court tended to exercise its discretion "in a manner that favoured the appointment of a public manager (the Protective Commissioner) over the appointment of a private one other than a statutory trustee company". Lindsay J said that Holt was instrumental in the "paradigm shift" which occurred towards the turn of the century: at [29].
At [34], Lindsay J noted that Holt had "liberalised the jurisprudence relating to the changes in the identity of a manager of a protected estate and … provided guidance as to the considerations material to decision-making in that area". At [46], Lindsay J also observed that, since Holt, the NSW Trustee's policy outlook had altered: "Whereas once the Protective Commissioner may have been viewed as a manager of 'first resort', the NSW Trustee is more inclined to see itself as a manager of 'last resort'" (emphasis added). At [47], Lindsay J said that policy change, was in accord with Holt and the concept of a "sensible hierarchy of choices".
In M v M, Lindsay J built upon the foundation laid in Holt and listed at [50] 16 non-exhaustive "guidelines" or a "checklist of considerations" to be considered or applied when the Supreme Court is called to make decisions about the appointment of a manager of protected estates. In the third of those considerations, citing Holt at 238, 241-242, Lindsay J said "any decision made affecting the welfare or interests of a protected person must be made in a manner, and for a purpose, calculated to be in the best interests, and for the benefit, of the protected person": M v M at [50(c)]. Lindsay J said (at 50) that "in the choice of a manager consultation of the welfare and interests of a protected person may favour appointment of member of his or her family over the appointment of an institutional manager" (emphasis added). There is nothing in that checklist of considerations which could be read as establishing a statutory hierarchy or a presumption in favour of either family members or the Trustee.
In Ability One, Lindsay J considered the basis upon which a private corporation conducting a business of management of protected estates might be appointed or permitted to act and be remunerated as manager of the estate of a protected person.
At [30], Lindsay J repeated the observations he made in M v M about the "institutional and social changes" which point to "a fundamental shift … since the seminal judgment of the Court of Appeal in Holt". At [31], Lindsay J reproduced the statement in M v M at [46] (referred to at [55] above): "Whereas once the Protective Commissioner [a predecessor of the NSW Trustee] may have been viewed as a manager of 'first resort', the NSW Trustee is more inclined to see itself as a manager of 'last resort'."
In Husband v Public Guardian [2016] NSWSC 1720 Slattery J reviewed a decision made by NCAT to dismiss an application made by the plaintiff husband to revoke the appointment of the NSW Trustee and to appoint him as his wife's financial manager. After referring to the submission made by the plaintiff husband that NCAT was required but failed to apply the principle that "the appointment of the NSW Trustee to manage the wife's estate, given its relatively small size, should be a measure of last resort": Re X [2016] NSWSC 275, Lindsay J at [32]", Slattery J said at [112]: "The husband's submissions state the law correctly. The Tribunal was obliged to apply these principles."
With respect to Slattery J, the plaintiff husband did not "state the law correctly" in saying that Re X is authority for the proposition that the NSW Trustee is the manager of last resort. Rather in the passage in Re X at [32] to which Slattery J referred, Lindsay J said the "NSW Trustee now regards itself as the manager of last resort": "As explained in M v M [2013] NSWSC 1495 and Ability One Financial Management Pty Ltd and Anor v JB by his tutor AB [2014) NSWSC 245 at [30]-[32], the NSW Trustee now regards itself as the manager of last resort." (Emphasis added.)

Consideration

The appellants' contention that the so-called "last resort principle" formed part of the ratio of M v M, Ability One and Re X, misstates the law. In each of those decisions, Lindsay J referred to the obiter statements made by Kirby P in Holt, said to establish that principle. However, Lindsay J did not say that s 25M of the Guardianship Act should be interpreted to mean that the discretion to commit the management of a protected person's estate can only be exercised where there is no suitable person to appoint as manager. Of the 16 non-exhaustive "guidelines" listed by Lindsay J in M v M at [50] and affirmed in Ability One at [35] and Re X, none could be said to endorse the "last resort principle", or to create a hierarchy which favoured the appointment of a "suitable person" over the NSW Trustee, or vice versa.
As Lindsay J observed in M v M, Kirby P's obiter statements in Holt were undoubtedly influential and led to a "paradigm shift" in the approach taken by the Supreme Court in decisions about the appointment of a manager of the estate of a protected person. In M v M, his Honour observed at [25] that, before Holt, in exercising its jurisdiction to appoint or replace a manager, the Supreme Court did so in a manner that favoured the appointment of the Protective Commissioner over the appointment of a private person. In addition, in M v M Lindsay J observed at [46], it contributed to a policy shift: "[w]hereas once the Protective Commissioner may have been viewed as a manager of 'first resort', the NSW Trustee is more inclined to see itself as a manager of 'last resort'".
While significant, Kirby P's statements in obiter did not establish a new legal principle. In none of the decisions to which we have been referred, did Lindsay J make statements in obiter that could be read as endorsing or applying the "last resort principle".
The statement made by Slattery J in Husband v Public Guardian that the "appointment of the NSW Trustee to manage the wife's estate, given its relatively small size, should be a measure of last resort", was not the ratio of that decision. Our conclusion that that statement was neither dispositive of the appeal, nor essential or necessary to its outcome, is evident from the fact that after making that statement, Slattery J went on to say at [121] that it was not necessary to consider the plaintiff husband's submission "beyond the conclusions already drawn" because, as a result of jurisdictional error, NCAT's decision to make a financial management order was "in substance no decision".
Nor could that statement be characterised as "seriously considered dicta". That is so for two reasons. First, as explained above, Slattery J was mistaken that Re X was authority for the "last resort principle". Second, in deciding whether to exercise the power to revoke the appointment of the NSW Trustee, Slattery J correctly noted at [191], that that decision must be taken under the "statutory commands" in s 4 of the Guardianship Act. In deciding whether the pre-condition to the exercise of that power was satisfied - relevantly, that it was in the best interests of the wife to revoke the appointment of the NSW Trustee (Guardianship Act, s 25U(4)(b)) - Slattery J made no mention of, less still applied, the "last resort principle". Rather he correctly noted that the "decision must be taken under the statutory commands in the Guardianship Act, s 4(a) to (g)" to revoke the appointment of the NSW Trustee.

Conclusion

The Tribunal was not bound by the "last resort principle".
The ground of appeal must fail.

Ground 2: whether the Tribunal gave adequate reasons for the decision to commit the management of the Mother's estate to the NSW Trustee

The appellants contend that the Tribunal failed to give adequate reasons for its decision to commit the management of the Mother's estate to the NSW Trustee. Citing ZBC v ZBD [2016] NSWCATAP 264 at [40], the appellants contend that the Tribunal failed to give an adequate explanation for its finding that the conflict between themselves and the Sister rendered them not suitable to be appointed to manage the Mother's estate. In addition, the appellants contend that the Tribunal failed to adequately explain the relevance of that conflict to its decision to appoint the NSW Trustee and not themselves to manage the Mother's estate.
In addition, the appellants submit that the Tribunal failed to take into account a "relevant consideration" (we understand the appellants to use that term in the sense explained by Brennan J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40), namely the Sister's unsuitability to be appointed as manager of the Mother's estate. The appellants argue that the evidence on which they relied in the proceedings, revealed that the Sister had breached her fiduciary duties to the Mother.

Legal Principles

The Tribunal was required to give written reasons for its decision: NCAT Act, Sch 6, cl 11. Section 62(3) of that Act provides that a written statement of reasons must contain: 62 Tribunal to give notice of decision and provide written reasons on request ... … (a) the findings on material questions of fact, referring to the evidence or other material on which those findings were based; (b) the Tribunal's understanding of the applicable law; and (c) the reasoning processes that lead the Tribunal to the conclusions it made.
In New South Wales Land and Housing Corporation v Orr (2019) 100 NSWLR 578; [2019] NSWCA 231 (Orr), Bell P (as the Chief Justice then was), in considering the nature of the Tribunal's obligation to give reasons, said at [66] that the function of an appeal court in the context of appellate review is "to determine not the optimal level of detail required in reasons for a decision but rather the minimum acceptable standard", citing Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33. At [67], referring to the statement made by Basten JA in Resource Pacific Pty Ltd v Wilkinson at [48] that "[t]ransparency in decision-making is an important value, but it is not cost free, and may involve separate parameters of quantity and quality", Bell P commented that the "identification of separate parameters of quantity and quality is, with respect, a useful one".
At [70], Bell P went on to state that the "sheer volume of work undertaken by tribunals is such that a perhaps more relaxed standard of review of reasons with corresponding compensation for linguistic infelicities is appropriate than may be the case when an appellate court is hearing an appeal from another court". Bell P, however, acknowledged that there are "certain minimum characteristics that a Tribunal's reasons must possess" which, in relation to NCAT, are supplied by s 62(3) of the NCAT Act. Bell P said at [72] that while s 62(3) of the NCAT Act provides a "useful starting point, it still leaves for consideration the question as to the quality and detail of the reasoning process that must be exposed".
In Gautam v Health Care Complaints Commission [2021] NSWCA 85, the Court of Appeal (Leeming JA, Payne JA and Simpson AJA) considered an appeal from a decision made by the Occupational Division of NCAT. At [14], Lemming JA rejected the contention that there is a one-size-fits-all test for determining whether the reasons of a tribunal, from which an appeal is confined to questions of law, are adequate. At [18], Leeming JA went on to say that it is difficult to speak in terms of "inflexible rules", and that the obligation to give reasons "[v]ery much will turn upon the nature of the case and, in particular, the nature of the parties' submissions in support of the findings each seeks to be made".

The reasons given by the Tribunal for committing the management of the Mother's estate to the NSW Trustee

To consider this ground, it is necessary to first consider the structure of the reasons given by the Tribunal for its decisions made on 19 October 2023 (the Reasons).
After setting out the procedural background to the three applications before the Tribunal, under the heading "Review of Enduring Power of Attorney", the Tribunal set out the relevant law, some background facts and the respective positions put by the parties.
At [23] the Tribunal noted that YJD "as spokesperson for the applicants", said that the appellants were seeking to have the Sister removed as both attorney and enduring guardian. At [24]-[25], the Tribunal recorded the appellants' views concerning the appointment of the NSW Trustee: "[24] [YJD] said that should the Tribunal determine to turn the review into an application for Financial Management as it outlined as a possibility, then she and her brother [YJC] would have no problem with such a course being adopted. [25] However [YJC] indicated that he would not be happy with the NSW Trustee being appointed if such an order was made as there was a concern around fees. He also advised that he wanted the 2021 EPOA reviewed. After some further explanation by the Tribunal as to section 36 of the Powers of Attorney Act 2003 and clarification around any role of the NSW Trustee and Guardian [YJC and YJD] appeared to be partially accepting that such an outcome was in the mix."
At [27], the Tribunal recorded that the Sister had urged the Tribunal to make a financial management order and to appoint her as manager of the Mother's estate, and in the alternative, the NSW Trustee. The Sister said that she is "appropriate and capable" to take on the role of manager.
At [28], [42], and [51], the Tribunal outlined several allegations made by the appellants about the Sister.
At [40], after setting out the terms of s 37 of the Powers of Attorney Act, the Tribunal said: "We determined that it was appropriate in all the circumstances to consider a Financial Management order to ensure that [the Mother]'s best interests were maintained. In doing this we noted the significant departures from the provisions that the initial EPOA was to operate under, and the concerns from the applicants about the impact of the further EPOA in 2021, whereby an unusual arrangement was made. Even if this arrangement was sought by the Principal (which we had no further evidence on other than the fact that [the Mother] executed the newer instrument at that time), we were particularly concerned about the more recent revocations based on medical and other evidence adduced at the hearing including the admission of [the solicitor who prepared the letter by the Mother purporting to revoke the 2021 EGA and 2021 EPoA] that in June when the 2021 EPoA was revoked, the Mother 'in all likelihood did not have the requisite level of capacity', see Reasons at [34]] and including the circumstances in which the revocations were made."
At [41]-[43], the Tribunal gave reasons for its finding that there was a need for a financial management order to be made and that it was in the Mother's best interest that such order be made.
At [42], the Tribunal said: "The Tribunal determined that on the available evidence [the Mother] needs appropriate management of her finances to ensure that she is able to remain living her life in a manner of her own choosing and that such matters are sustainable. Due to concerns raised by some of the evidence before the Tribunal it appeared that the focus of the arrangements since the death of [the Mother's husband] in 2021 were more attuned to the position of family members and their role in [the Mother]'s life than the needs of [the Mother] herself."
At [43], the Tribunal said: "[T]he management of her living estate on her behalf requires supervision so as to best facilitate her needs and protect her interests."
At [44]-[53], the Tribunal went on consider the question of who should be appointed to manage the Mother's estate. At [44], the Tribunal correctly noted that in making that decision, s 4 of the Guardianship Act required that it give paramount consideration to the Mother's welfare and interests. At [47]-[50], after setting out the terms of s 25M of the Guardianship Act, the Tribunal referred to the guidelines referred to in Holt and M v M, which guide the exercise of the power conferred by that provision.
The Tribunal's reasons for committing the management of the Mother's estate are contained in the following passages: "[51] In the current matter it was clear to the Tribunal that a family appointment would not be the best option for [the Mother]. Whilst there would be oversight by the NSW Trustee of any private manager's actions we were not convinced that such an appointment would benefit [the Mother] in any manner. In essence we had determined that the existing arrangements were not operating in [the Mother] best interests (which was what caused the enlivening of s 37 of the Powers of Attorney Act), and to merely put her living estate under private management with the supervision of the NSW Trustee would in our view only solve half the problem. [52] Any appointment of [the Sister] was opposed by the applicants and any appointment of the applicants was opposed by [the Sister]. This is not a situation conducive to [the Mother]'s best interests."

Consideration

The question raised by this ground is whether the Reasons were adequate and met the minimum acceptable standard: Orr at [66]. Whether the Reasons met that standard is not to be measured against the standard of perfection: Orr at [66]; Bisley Investment Corporation v Australian Broadcasting Tribunal (1982) 40 ALR 233; [1982] FCA 58 at 255. In evaluating whether the Reasons were adequate, they must be read fairly and as a whole: Ex parte Applicant S20/2002; Appellant S106/2002 v Minister for Immigration and Multicultural Affairs (2003) 198 ALR 59; [2003] HCA 30 at [147]; Orr at 77. In addition, in making that evaluation the Reasons must not be inspected with a fine toothcomb attuned to identifying error: Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 115 ALR 1; [1993] FCA 456 at 9; Orr at 77.
In exercising the power conferred by s 25M of the Guardianship Act, several options were available to the Tribunal: to commit the management of the Mother's estate to the NSW Trustee; to appoint the Sister; one or both of the appellants, or the Sister and the appellants as manager(s) of that estate.
It is possible to discern from the Reasons, the path of reasoning which led the Tribunal to decide not to appoint the Sister to manage the Mother's estate. The analysis set out in the Reasons at [51], together with those passages where the Tribunal explained why it found that there was a need for a financial management order and that it was in the Mother's best interests that such order be made, reveal that the Tribunal was not satisfied that the Sister was a suitable person to appoint as manager. At [42], the Tribunal referred to the available evidence which pointed to the need for "appropriate management" of the Mother's finances to ensure that she "is able to remain living her life in a manner of her own choosing" (presumably, to remain living at home): Reasons at [42]. The Tribunal went on to state that "the focus of the arrangements since the death of [the Mother's husband] in 2021 were more attuned to the position of family members and their role in [the Mother's] life than the needs of [the Mother] herself". At [43], the Tribunal referred to the management of the Mother's estate "requir[ing] supervision so as to best facilitate her needs and protect her interests". In circumstances where the appellants had no direct involvement with the Mother's finances, and, as the Sister conceded she had been increasingly involved with the Mother's finances, in particular, since the purported revocation of the appellants' appointment as attorney, those comments can only be read as a thinly veiled criticism of the Sister. Likewise, the finding at [51], that "to merely put [the Mother's] living estate under private management with the supervision of the NSW Trustee would in our view only solve half the problem" (our emphasis), is plainly directed at the Sister.
The explanation given by the Tribunal for not appointing the appellants to manage the Mother's estate was less detailed than that given for not appointing the Sister. Contrary to the appellants' assertion, the Tribunal did not find they were not suitable people to manage the Mother's finances. The Tribunal made no adverse comments about the appellants.
The sole reason given by the Tribunal for not appointing the appellants was that their "appointment was opposed by [the Sister]" and that "[t]his is not a situation conducive to [the Mother's] best interests": Reasons at [53]. Read as a whole, the Reasons reveal that this finding - "[t]his is not a situation conducive to [the Mother's] best interests" - relates to the practicality of the appellants taking over the management the Mother's finances. In circumstances where the Sister was providing the Mother with regular care and support; where she was making and implementing, or assisting the Mother to make and implement, decisions which required the expenditure of Mother's funds, such as decisions to obtain services and health care for the Mother, the impracticability of the appellants taking over the management of the Mother's finances is self-evident.
It is possible to discern the path of reasoning which led the Tribunal to decide not to appoint the appellants and to commit the management of the Mother's estate to the NSW Trustee. While neither comprehensive, nor detailed, the reasons given for that decision were adequate.
This ground of appeal must fail.

Ground 3: whether the decision to commit the management of the Mother's estate to the NSW Trustee was manifestly unreasonable

The appellants contend that the decision to commit the management of the Mother's estate to the NSW Trustee, was "manifestly unreasonable" citing Minister for Immigration and Citizenship v Li [2013] 249 CLR 332; HCA 18; (Li). We understand the appellants to contend that the decision was manifestly unreasonable because it lacked "an evident and intelligible justification": Li at [75]-[76].
That decision was manifestly unreasonable, contend the appellants, because the Tribunal failed to apply the "last resort principle", and to give adequate reasons for its decision.
This ground raises much the same issues as raised by Grounds 1 and 2. The Tribunal was not bound to apply the so-called "last resort principle". In addition, as explained above, the reasoning path that led the Tribunal to commit the management of the Mother's estate to the NSW Trustee can be discerned from the Reasons. While reasonable minds might differ about the appropriateness of that decision, there was nonetheless an evident and intelligible justification for that decision.
The ground of appeal is rejected.

Second decision under appeal: Decision to dismiss the application to review the 2021 EGA

The appellants contend that the decision to dismiss the proceedings to review the 2021 EGA raises the following questions of law. We will treat these as the grounds of appeal in relation to that decision: 1. whether in exercising the discretion to dismiss the proceedings, the Tribunal applied a wrong principle of law; 2. whether in exercising the discretion to dismiss the proceedings, the Tribunal proceeded on the basis of a mistake of fact, that the appellants had agreed that "the reviews in relation to the Enduring Guardian appointment … did not need to proceed further"; and 3. whether s 6J of the Guardianship Act required the Tribunal to review the 2021 EGA and by failing to do so the Tribunal constructively failed to exercise its jurisdiction.

Guardianship Act

Part 2 of the Guardianship Act deals with the appointment of enduring guardians. Contained in Pt 2, s 6 of that Act provides that an "adult person may, by instrument in writing, appoint a person as his or her guardian".
The Guardianship Act gives the Tribunal power to review the appointment of an enduring guardian: 6J Tribunal's review of appointment (1) The Tribunal: (a) may, on its own motion, and (b) must, at the request of any person who, in the opinion of the Tribunal, has a genuine concern for the welfare of the appointor, review the appointment (or purported appointment) of an enduring guardian. …
Section 6K of the Guardianship Act lists the powers available to the Tribunal on review of the appointment of an enduring guardian: 6K Action on review (1) On reviewing the appointment of an enduring guardian, the Tribunal may - (a) revoke the appointment or deal with the matter as provided by subsection (3) (or both), or (b) confirm the appointment, with or without varying the functions of the enduring guardian under the appointment. (2) The Tribunal must not revoke the appointment of an enduring guardian unless - (a) the enduring guardian requested the revocation, or (b) the Tribunal is satisfied that it is in the best interests of the appointor that the appointment be revoked. (3) The Tribunal may, if it considers that it is in the best interests of the appointor to do so, deal with a review as if any of the following applications had been made in respect of the appointor - (a) an application for a guardianship order under Part 3, (b) an application for a financial management order under Part 3A, (c) applications for both such orders. (4) The Tribunal may confirm the appointment (or purported appointment) of a person as an enduring guardian under subsection (1) (b) even where - (a) the instrument that purported to appoint the person as an enduring guardian was not executed in accordance with the requirements of this Part, or (b) the person purporting to make the appointment announced his or her intention to make the appointment but became incapacitated before an instrument making the appointment could be executed in accordance with the requirements of this Part, if the Tribunal is satisfied that the confirmation of the appointment (or purported appointment) reflects the appointment that the person making the appointment intended to make at the time it was purportedly made. (5) The confirmation of the appointment of an enduring guardian under subsection (1) (b) has effect as if an instrument of appointment had been executed in accordance with the requirements of this Part by the appointor in the terms confirmed by the Tribunal.

NCAT Act

Contained in Div 4 (Conduct of proceedings) of Pt 7 (Practice and procedure) of the NCAT Act, s 55 of that Act states: 55 Dismissal of proceedings 1) The Tribunal may dismiss at any stage any proceedings before it in any of the following circumstances - … (b) if the Tribunal considers that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance, ...

Reasons for dismissing application for review of enquiring guardianship

The order made by the Tribunal states: "003: Review of an Enduring Guardianship Appointment 1. The application for review of the Enduring Guardian Appointment is dismissed after hearing pursuant to s 55(1)(b) of the Civil and Administrative Tribunal Act 2013."
After determining the application to review the operation and effect of the 2021 EPoA, in a single paragraph the Tribunal dealt with the two remaining applications, the application to review the purported revocation of the 2021 EPoA and the application to review the 2021 EGA: "[54] The parties agreed that there were no lifestyle issues remaining in contention amongst the family members, and that access to [the Mother] by other members of her family would be a priority for all family members who had care of her. It was also agreed between all applicants during the hearing that the reviews in relation to the Enduring Guardian appointment and revocation did not need to proceed further. The Tribunal noted that [the Sister] was currently best placed to liaise and determine necessary lifestyle matters for [the Mother] (in consultation with family and [the Mother]) as and when they might arise. However no pending matters (other than the continued need for appropriate family access to [the Mother]) remained."
The only other reference to the application to review the 2012 EGA is at [2] of the Reasons where the Tribunal said: "The Tribunal dismissed both applications for review of the revocation of the Enduring Power of Attorney (EPOA) and of the Enduring Guardianship (EG) appointment after hearing as for the EPOA the Financial Management order made any further order unnecessary. In respect of the EG there was no need for any Tribunal order for the reasons set out below as there were no lifestyle decisions pending that could not be agreed upon in respect of [the Mother]."

Consideration

We deal with the first two grounds of appeal together as they are interrelated.
There are several difficulties with the approach taken by the Tribunal in exercising the power to summarily dismiss the application to review the 2021 EGA.
First, the Tribunal appears to have failed to consider, as required by s 55(1)(b) of the NCAT Act, whether the proceedings were "frivolous or vexatious or otherwise misconceived or lacking in substance". The Reasons do not disclose whether the Tribunal considered that question, or if it did, into which category or categories the Tribunal found that the proceedings fell.
To exercise the discretion to dismiss proceedings under s 55(1)(b) of the NCAT Act, the Tribunal was required to undertake a two-step process. First, to find that the proceedings are "frivolous or vexatious or otherwise misconceived or lacking in substance". Finding that the proceedings fell within one or more of the categories listed in s 55(1)(b) of the NCAT Act was a necessary pre-condition to the exercise of the discretion to dismiss the proceedings under that sub-section. Only after determining whether that pre-condition was satisfied, was the Tribunal permitted to undertake the second step and to decide whether to exercise the discretion to dismiss the proceedings under s 55(1)(b).
Second, if we are wrong and it can be inferred from the Reasons that the Tribunal found that the proceedings "lacked substance" in the sense that they "would be of no practical effect" (see Davis v NSW Minister for Health [2023] NSWCATAP 211 at [53]), the Tribunal has applied the wrong test.
Central to the decision to dismiss the 2021 EGA appears to be the finding that "there was no need for any tribunal order … as there were no lifestyle decisions pending that could not be agreed upon in respect of [the Mother]": Reasons at [2]. The reference to "lifestyle decisions" appears to be a reference to that class of matters the appellants and the Sister were given authority to decide on behalf of the Mother under the 2021 EGA (accommodation, health care, personal services, consent to medical and dental treatment and access to the Mother's health records).
Whether in the future the appellants and the Sister might or might not be able to work together in exercising their authority under the 2021 EGA is a separate and discrete question to whether the proceedings to review that instrument would be of no practical effect. In circumstances where the appellants contended that the current arrangements were neither workable nor operating in the Mother's best interests and where they sought to have the Sister removed as enduring guardian, it could not be said that reviewing the 2021 EGA would be of no practical effect. On review, it would have been open to the Tribunal to make orders to, among other things, confirm or to revoke the appointment of one of more of the enduring guardians. Those orders could not be characterised as having no practical effect.
Third, in exercising the discretion to dismiss the proceedings, the Tribunal proceeded on a mistake of fact that, "it was also agreed between all applicants during the hearing that the reviews in relation to the Enduring Guardian appointment and revocation did not need to proceed further": Reasons at [54].
The appellants made clear that they continued to press their application for review of the 2021 EGA. At the conclusion of the hearing, the Tribunal took a short adjournment to deliberate and then returned to announce their decision. Immediately before taking that adjournment, YJD said: "We want [the Sister] removed as EPOA and Guardian in Mum's best interest because bank records in our applications show that [the Sister] withdrew more than Mum's entire annual pension in cash amounts and this cannot be allowed to go on! Finally, in response to [the solicitor for the Sister] 12 October 2023 submission for [the Sister]- for all our applications to be dismissed - we want to raise the Guardianship Appeal Panel case of ZMQ v ZMR [2020] NSWCATAP. At paragraph 27, the Appeal Panel accepted that where an application requests a review Tribunal to exercise the discretion conferred by section 36(2) to make orders under section 36 - and to make a particular form of order - a failure to consider and determine that request may amount to a failure to address the substance of the applicant's case and involve a constructive failure to exercise the function conferred by the Powers of Attorney Act. So, we fairly ask the Tribunal to consider each of the orders we seek in our written submissions and applications and not dismiss our applications. Thank you." (Tcpt, 19 October 2023, p 17)
The first two grounds of appeal on which the appellants rely in relation to the second decision under appeal are established. It is unnecessary to consider the third.

Third decision under appeal: Decision to dismiss the application to review the 2021 EPoA

The grounds of appeal in relation to this decision largely repeat those said to be raised by the decision to dismiss the application to review the 2021 EGA (i.e. the second decision under appeal).

Consideration

The reasons given by the Tribunal for dismissing the application to review the revocation of the 2021 EPoA are contained at [2] and [54] of the Reasons and are set out at [102]-[103] above.
The analysis set out in relation to the challenge to the decision to dismiss the 2021 EGA applies equally to the decision to dismiss the application to review the revocation of the 2021 EPoA. Indeed, not only did the appellants not say that their application to review the 2021 EPoA "did not need to proceed further" but as the extract from the transcript set out at [112] above reveals, in requesting that their application proceed, the appellants cited a decision said to be authority for the proposition that to fail to address their application may amount to a "constructive failure to exercise the function conferred by the Powers of Attorney Act".
This ground of appeal is established.

Orders 1. The appeal is allowed in part. 2. The decision to make a financial management order in respect of the YGJ and to commit the management of YGJ's estate to the NSW Trustee and Guardian is affirmed. 3. The decision to dismiss, under s 55(1)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) the proceedings to review the appellants' application seeking review of the purported revocation of their appointment as attorneys, is set aside. 4. The decision to dismiss, under s 55(1)(b) of the Civil and Administrative Tribunal Act 2013 (NSW), the proceedings to review the appellants' application seeking review of YJE's appointment as enduring guardian on 18 November 2021, is set aside. 5. The appellants' application seeking review of the purported revocation of their appointment as attorneys (referred to in Order 3) is to be reconsidered by the Guardianship Division on the basis of the material that was before the Tribunal at the hearing on 19 October 2023. 6. The appellants' application seeking review of YJE's appointment as enduring guardian on 18 November 2021 (referred to in Order 4) is to be reconsidered by the Guardianship Division on the basis of the material that was before the Tribunal at the hearing on 19 October 2023. The parties may provide further evidence relevant to that application, which relates to the period from 19 October 2023.

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: 16 August 2024

Guardianship (Amendment) Act 1993(NSW)

Guardianship Amendment Act 1997(NSW)

Trustee and Guardian Act 2009(NSW)

Protected Estates (Disability Services and Guardianship) Amendment Act 1987(NSW)

Protected Estates Act 1983(NSW)

(2023) 111 NSWLR 514

(2019) 100 NSWLR 578

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