ZAC, ZAD, ZAE, v ZAF, NSW Trustee and Guardian, Public Guardian, ZAG

NCAT Appeal Panel|2016-02-12|Before: Deane JJ, Gibbs CJ

Introduction

This is an appeal against a decision of the Guardianship Division of the NSW Civil and Administrative Tribunal (the Tribunal) on 18 May 2015. The appeal arises out of an application made by the appellants, ZAC, ZAD and ZAE, who sought the appointment of a guardian and financial manager in relation to their father, ZAF, the first respondent.
The first respondent is 85 years old. He has lived for many years with his de facto spouse, Ms ZAG (the fourth respondent). The appellants are the first respondent's three daughters from his first marriage.
On 18 May 2015, the Tribunal:

consented to the withdrawal of the appellants' application to have a guardian appointed for their father pursuant to Sch 6, cl 10 of the Civil and Administrative Tribunal Act 2013 (CAT Act). As a consequence, the Tribunal summarily dismissed the application for a guardianship order pursuant to s 55(1)(a) of the CAT Act; and
dismissed the appellants' application to have a financial manager appointed for their father.

At the appeal hearing on 12 February 2016, the appellants withdrew all grounds of appeal relating to the Tribunal's decision to consent to their request to withdraw the application for guardianship in relation to their father.
As a result, the appeal against the Tribunal's decision in relation to guardianship was no longer before the Appeal Panel.
This left for consideration the grounds of appeal in relation to the Tribunal's decision on 18 May 2015 to dismiss the appellants' application for the appointment of a financial manager for their father.

Scope and nature of appeal

The decision under appeal, namely the decision to dismiss the application for a financial management order, is an "internally reviewable decision": ss 4, 32(4) of the CAT Act. A party may appeal an internally reviewable decision on any question of law or with the leave of the Appeal Panel on any other ground: s 80(2)(b) of the CAT Act.
Section 81 of the CAT Act sets out the orders that may be made on appeal: 81 Determination of internal appeals (1) In determining an internal appeal, the Appeal Panel may make such orders as it considers appropriate in light of its decision on the appeal, including (but not limited to) orders that provide for any one or more of the following: (a) the appeal to be allowed or dismissed, (b) the decision under appeal to be confirmed, affirmed or varied, (c) the decision under appeal to be quashed or set aside, (d) the decision under appeal to be quashed or set aside and for another decision to be substituted for it, (e) the whole or any part of the case to be reconsidered by the Tribunal, either with or without further evidence, in accordance with the directions of the Appeal Panel. (2) The Appeal Panel may exercise all the functions that are conferred or imposed by this Act or other legislation on the Tribunal at first instance when varying, or making a decision in substitution for, the decision under appeal.

The proceedings at first instance

On 24 December 2014, the appellants lodged an application seeking guardianship and financial management orders in respect of their father pursuant to the Guardianship Act 1987 (NSW) (Guardianship Act).
An interlocutory hearing was conducted by a single member of the Tribunal on 17 March 2015. A number of directions were made including the following: 1. The Tribunal granted leave for Ms Rosetta Lo Presti to represent [the first respondent] in all proceedings pending at the Tribunal (matter no. 2015/1998). 2. The Tribunal granted leave for [the appellants' former legal representative] to represent [the appellants] in all proceedings pending before the Tribunal (matter no. 2015/2360). 3. By 24 March 2015, all parties are to serve on all other parties all documents lodged to date with the Tribunal. 4. By 24 March 2015 Ms Lo Presti is to provide [the appellants' former legal representative] with the names of three psychogeriatricians considered appropriate to conduct an assessment of [the first respondent] as well as draft referral letter regarding the assessment. 5. By 27 March 2015 [the appellants' former legal representative] is to advise Ms Lo Presti of the choice of psychogeriatrician. 6. The applicants have agreed to meet the cost of the assessment by a psychogeriatrician. 7. Ms Lo Presti is to provide a copy of the psychogeriatrician's report to [the appellants' former legal representative] within two (2) days of its receipt. 8. The applicant is to lodge with the Tribunal and serve on all other parties any further documents on which they seek to rely by 4 May 2015. 9. All other parties are to lodge with the Tribunal and serve on the applicant and each other party any further documents on which he/she seeks to rely by 11 May 2015.
The hearing was conducted on 18 May 2015.
Section 25G of the Guardianship Act sets out the circumstances in which the Tribunal may make a financial management order. 25G Grounds for making financial management order The Tribunal may make a financial management order in respect of a person only if the Tribunal has considered the person's capability to manage his or her own affairs and is satisfied that: (a) the person is not capable of managing those affairs, and (b) there is a need for another person to manage those affairs on the person's behalf, and (c) it is in the person's best interests that the order be made.
The Reasons for Decision outline the evidence provided by the appellants, their reasons for making the financial management application and their concerns about their father's capability to manage his own financial affairs, including property in Italy.
The evidence provided by the first respondent was also summarised which was, in effect, that "he does not have an incapacity and is able to manage his own affairs at the present time".
The following documents formed part of the evidence before the Tribunal:

A report dated 13 January 2015 prepared by Dr Z, Geriatrician (Dr Z's report).
A report dated 4 May 2015 prepared by Dr Y, Consultant Psychiatrist (Dr Y's report)

The Tribunal in its Reasons for Decision focussed on the third limb of s 25G. The Tribunal determined that it was not satisfied that it was in the first respondent's best interests that a financial management order was made and dismissed the application.

Callover - 20 October 2015

At a call over on 20 October 2015, a differently constituted Appeal Panel made the following directions: 1. Leave is granted to the Appellants to be legally represented by Mr O Stichter, a solicitor. 2. Leave is given to the First Respondent to be legally represented by Ms R Lo Presti, a solicitor. 3. The First Respondent is to lodge with the Tribunal and provide to the Respondents a copy of the Reply to Appeal by 10 November 2015. 4. The Appellants are to lodge with the Tribunal and provide to the Respondents by 24 November 2015: (a) The Appellants' written submissions in support of the appeal; (see note below) and (b) If it is being relied on, the sound recording or transcript of the hearing at first instance. 5. The Respondents are to lodge with the Tribunal and provide to the Appellants by 15 January 2016: (a) The Respondents' written submissions in opposition to the appeal; and (b) If it is being relied on and has not already been provided, the sound recording or transcript of the hearing at first instance. 6. The Appellants are to lodge with the Tribunal and provide to the Respondents any written submissions in reply by 5 February 2016. 7. The Appeal is listed for HEARING on 12 February 2016 at 10:15am in Hearing Room 7C, John Maddison Tower for a full day. NOTES: 8. The written submissions of the Appellants and the Respondents are to have attached any statements upon which the Appellants or Respondents seek to rely which were not tendered at the original hearing. 9. An Italian-speaking interpreter is required for the First Respondent.

Internal appeal proceedings

The hearing of the appeal took place on 12 February 2016. A number of preliminary issues were dealt with at the commencement of the appeal hearing.
It is noted that the first respondent was assisted by an interpreter throughout the appeal hearing.

Parties

The Notice of Appeal filed by the appellants on 28 July 2015 identified ZAF as the only respondent to the appeal.
The parties to an internal appeal are, relevantly, the appellant and any person or body who was a party to the proceedings before the Tribunal at first instance (Civil and Administrative Tribunal Rules 2014, reg 29(a) and (b)).
At first instance, the Public Guardian was a party to the guardianship application (Guardianship Act, s 3F(2)(e)) and the NSW Trustee and Guardian was a party to the financial management application (Guardianship Act, s 3F(5)(f)). Accordingly, both the Public Guardian and NSW Trustee and Guardian were parties to the appeal. They did not, however, play a role in the appeal proceedings.
Despite not being identified as such in the Notice of Appeal, ZAG, the first respondent's de facto spouse, was also a party to both applications at first instance (Guardianship Act, ss 3F(2)(c) and 3F(5)(c)) and was therefore a party to the appeal.
ZAG was in attendance throughout the appeal hearing. At the commencement of the hearing, the Appeal Panel asked ZAG whether she wished to be legally represented in the appeal proceedings and gave her the opportunity to make submissions on the appeal. ZAG did not seek to be legally represented. ZAG told the Appeal Panel that she supported the position of the first respondent.

Leave granted to amend Notice of Appeal

The Notice of Appeal as filed by the appellants stated that the date of the decision of the Tribunal at first instance was 2 July 2015. At the appeal hearing, the legal representative for the appellants sought, and was granted, leave to amend the Notice of Appeal to correctly reflect the date of the decision as 18 May 2015.
As the appellant received the written Reasons for Decision on 6 July 2015 and the Notice of Appeal was filed on 28 July 2015, there was no dispute that the appeal was lodged within the required 28 day period.

Notice of Appeal

In support of the appeal, the appellants filed a Notice of Appeal, written submissions in support of the appeal, written statements from each of the three appellants as well as another family member and a written statement by ZAE in reply to the first respondent's written submissions.
The extent to which the appellants' ultimately relied on the filed material, given that much of it constituted "fresh evidence" thereby requiring the leave from the Appeal Panel in order to be considered, is set out later in these Reasons.
The Notice of Appeal filed on 28 July 2015 stated that the orders challenged on appeal were as follows: 11A. Orders challenged on appeal 1. Dismissal of the application for the appointment of a financial manager in relation to [the first respondent]. 2. Consent to the withdrawal of the application for guardianship in relation to [the first respondent] made by [the appellants].
The seven listed grounds of appeal set out in the Notice of Appeal as filed were amended during the course of the appeal hearing. This resulted in the appellants relying on the following grounds of appeal (as amended): 11B. Grounds of appeal 1. Relevant documents, to with, statements by [ZAC] and [ZAD], (copies attached), together with an article about dementia (copy attached), were filed and served out of time by the solicitor representing the applicants. The tender of such documents and any reliance thereupon was opposed by the solicitor for [ZAF], as a result of which the tender was not pressed by the applicants' solicitor. It is submitted that: a. the statements contained important factual information supporting the application; b. the late filing and the subsequent inability to rely thereon caused prejudice to the applicants; c. had that material been tendered, the result may have been otherwise. 2. The medical evidence was flawed by reason of [ZAG] being present and interpreting. [Dr Y]'s report dated 4 May 2015 (copy attached) records that [the first respondent's] partner, [ZAG], was present. [ZAG] was also present when [ZAF] was examined by [Dr Z], Geriatrician. His report dated 13 January 2015 (copy attached), admitted and relied upon in the proceedings, mentions that she was present, that she assisted with the provision of information and that she translated for [ZAF] when he carried out a Mini Mental State examination. The medical evidence is flawed thereby and should not have been relied upon. A further examination should have been conducted by an independent pschogeriatrician complying with the Tribunal's directions, without [ZAG] present. 3. [Withdrawn] 4. [ZAF]'s legal representative, as a person who had acted on [ZAF]'s behalf in past matters, was in a position of conflict and should not have represented him. The Tribunal was incorrect in allowing her to continue acting in such circumstances, all the more so in that she may have been a potential witness in the proceedings. 5. The Tribunal gave insufficient weight on the report of [Dr Y] and correspondingly placed too much weight on the report of [Dr Z]. 6. Even without the further evidence not put before the Tribunal, the Tribunal's determination was against the weight of evidence. 7. In all the above circumstances: a. there was substantial miscarriage of justice; b. it is unjust to allow the finding to stand (Collins v Urban [2014] NSWCATAP 17 at 84.c)
The Notice of Appeal (as amended) set out the orders sought by the appellants as follows: 11C. Orders the NCAT Appeal Panel should make: 1. That leave be granted to the application for appeal. 2. That the application for financial management should be reheard. 3. [Withdrawn] 4. That at such rehearing, that the Tribunal determine whether the applicants should be appointed financial managers of the estate of [ZAF]. 5. In the alternative that the New South Wales Trustee and Guardian be appointed financial manager of the estate of [ZAF]. 6. That at such rehearing, that the Tribunal determine whether the applicants should be appointed guardians of [ZAF]. 7. Alternatively that the applicants and such other person or persons as appointed by the Tribunal be appointed guardians of [ZAF].
The appellants in the Notice of Appeal did not expressly identify any of the grounds as raising a question of law and the legal representative for the appellants confirmed in oral submissions that the appellants did not assert that any of the grounds could be characterised as an error of law.
Accordingly, as has been previously noted, the leave of the Appeal Panel would be required in relation to each ground in order for the appellants to appeal the first instance decision (CAT Act, s 80(2)(b)).

Reply to appeal

The first respondent filed a Reply to Appeal, written submissions, a written statement by the first respondent (attaching what was described in the document as "Further evidentiary documents in response" (see page 13 of first respondent's submissions filed on 14 January 2016)) and an audio recording of the hearing before the Tribunal at first instance.
As was noted above in relation to the material filed by the appellants, the extent to which the first respondent ultimately relied on much of the filed material, given that it would have constituted "fresh evidence" thereby requiring the leave from the Appeal Panel in order to be considered, is set out later in these Reasons.
To the extent that it was possible for the Appeal Panel to discern the primary contention put on the first respondent's behalf, it was that the Tribunal at first instance had not erred and that the Appeal Panel should not grant leave for the appellants' to appeal the Tribunal's decisions. According to the first respondent, there was no miscarriage of justice suffered by the appellants and no issue of principle or question of public importance was raised in the Notice of Appeal.

Material before the Appeal Panel

A considerable amount of material was filed by the appellants and the first respondent.
Given this, time was taken at the commencement of the hearing to clarify the material that the parties sought to put before the Appeal Panel.
The appellants filed the following material: 1. Notice of Appeal (filed 28 July 2015) 2. Attached to Notice of Appeal: a. Statement by [ZAD] (undated) (3 pages) b. Statement by [ZAC] (undated) (14 pages) c. Statement by [ZAD's spouse] (undated) (2 pages) d. Report of [Dr Y] dated 4 May 2015 e. Report of [Dr Z] dated 13 January 2015 f. Document entitled "Tribunal's Reasons for Decision discrepancies" (2 pages) 3. The appellants' written submissions (11 pages) filed on 24 November 2015. 4. Attached to appellants' submissions filed 24 November 2015, purportedly in "compliance with the orders made on 20 October 2015" (at page 7): Statement by [ZAC] dated 22 November 2015 (22 pages) that annexed attachments numbered 23 to 52. Statement by [ZAD] dated 22 November 2015 (22 pages) that annexed attachments labelled Page 23, Page 24, and Page 25. c. Statement by [ZAE] dated 22 November 2015 (9 pages) d. Statement by [ZAD's spouse] dated 18 November 2015 (5 pages) 5. Statements of ZAE, ZAC and [ZAD's spouse] in reply to first respondent's 14 January 2016 written submissions (filed on 5 February 2016)
The first respondent filed the following material: 1. The first respondent's written submissions (14 pages) filed on 14 January 2016. 2. "Further evidentiary documents in response" attached to first respondent's written submissions filed on 14 January 2016: a. Report by [Dr Z] dated 22 October 2015 (Annexure A1) b. Letter from [Dr X] to Licence Review Unit dated 2 July 2015 (Annexure A2) 2. Statement by [ZAF] dated 14 January 2016 (21 pages) that attached: a. Contractors pass (Annexure A to [ZAF]'s statement) b. Letter from [the first respondent's Australian nephew] dated 1 April 2015 (Annexure B to [ZAF]'s statements) c. "Spontaneous declaration" by [the first respondent's nephew] dated 20 April 2015 (Annexure C to [ZAF]'s statement) d. Report of [Dr W] dated 11 August 2015 (Annexure D to [ZAF]'s statement) e. Report by [Dr Z] dated 13 January 2015 (Annexure E to [ZAF]'s statement) f. Event card - North Shore Local Area Command - Chatswood Police Station dated 18 February 2015 (Annexure F to [ZAF]'s statement)
The statements of each of the appellants that were sought to tendered in the appeal were different to the statements prepared for the Tribunal proceedings at first instance. These new statements were said by the appellants' legal representative to be the same in substance as those prepared for the Tribunal proceedings at first instance but "tidied up" and "amplified" for the purposes of the appeal proceedings. Some of the material, such as the statement by ZAD's spouse, was new material that had not been sought to put before the Tribunal at first instance.
The statement of the first respondent dated 14 January 2016 was prepared for the purposes of the appeal hearing. Many of the attachments to that statement, as well as the "Further evidentiary documents in response", were new material that was not before the Tribunal at first instance.
A party seeking to adduce fresh evidence in an appeal may only do so with the leave of the Appeal Panel and in accordance with well-established principles (see, for example, Gallagher v R [1986] HCA 26; (1986) 160 CLR 392, 402 (Mason and Deane JJ), 399 (Gibbs CJ); QP v RP [2014] NSWCATAP 59, [34]-[37]).
The Appeal Panel stood the hearing down for a short period in order to enable the parties to consider their respective positions and whether they sought leave to tender any fresh evidence.
Upon the resumption of the appeal hearing, the appellants withdrew all of the material originally sought to be put before the Appeal Panel, other than the following material that was in existence at the time of the Tribunal hearing at first instance:

Statement of ZAC (undated)
Statement of ZAD (undated)
Report of Dr Y dated 4 May 2015
Report of Dr Z dated 13 January 2015

The appellants' legal representative also put to the Tribunal that the written submissions filed by the appellants on 24 November 2015 were to be read as limited to the evidence now before the Appeal Panel.
The legal representative of the first respondent indicated that the first respondent would not press for the tender of material that was not in existence at the time of the Tribunal hearing at first instance.
As a result, the written material ultimately before the Appeal Panel was as follows:

The appellants' written submissions (11 pages) filed on 24 November 2015
The first respondent's written submissions (14 pages) filed on 14 January 2015
Statement of ZAC (undated)
Statement of ZAD (undated)
Report of Dr Y dated 4 May 2015
Report of Dr Z dated 13 January 2015

It is relevant to note at this juncture that whilst the statements of ZAC and ZAD were labelled as exhibits A1 and A2 without objection, the first respondent's legal representative objected to the content of those statements being before the Appeal Panel. This objection appeared to relate to the criticisms made by her client about the factual matters set out in the statements (on the basis that, according to the legal representative, the statements were "planned, contrived and devised with the view to bringing an application") and that it would have been unfair to the first respondent if they had been tendered into evidence at first instance as they were filed and served out of time and there was no opportunity to have them translated.
Although she was provided with the opportunity to do so on a number of occasions during the appeal hearing, the legal representative for the first respondent did not address the Appeal Panel on the issue of whether the statements should be admitted before the Appeal Panel for the purpose of considering whether the actions of the appellants' former legal representative (by not filing and serving the statements in accordance with the directions of the Tribunal) led to an injustice such that leave to appeal should be granted. Nevertheless, as noted, the Appeal Panel understood that the first respondent's position was that the contents of the statements should not be before the Appeal Panel.
As set out in the reasoning below, the Appeal Panel did not accept what it understood of the first respondent's position in this respect on the basis that it needed to consider the contents of the statements (without determining the accuracy of what was said in the statements) in order to properly consider whether leave to appeal should be granted. As will be seen below, the Appeal Panel was not satisfied that such was the case.
However, following the hearing of the appeal and after the decision had been reserved, the first respondent's legal representative wrote to the Appeals Registry objecting to the tender of exhibits A1 and A2 into evidence. Each of the parties was provided with a copy of that correspondence and an opportunity to make submissions on the following two matters:

The basis upon which the Appeal Panel should consider the first respondent's correspondence given that the appeal was reserved on 12 February 2016
If the Appeal Panel were to consider that correspondence, any submissions in response to the contents of that correspondence

The legal representative for the appellants objected to the first respondent submitting any further evidence or submissions in the appeal noting, in particular, that the first respondent had not sought nor been granted, leave to make any further submissions.
On 22 March 2016, the first respondent filed a statement through his legal representative.
On the same date, ZAG also filed a statement, also through the first respondent's legal representative.
After considering all of this material, the Appeal Panel declined to grant leave to the first respondent to make any further submissions in this matter given that the legal representative for the first respondent had the opportunity to make submissions as to the tendering of the statements before the Appeal Panel at the hearing of the appeal. There was no basis in the material submitted on behalf of the first respondent subsequent to the appeal hearing to reopen this issue.

Leave to appeal - General principles

The appellants seek leave to appeal against the decision of the Tribunal at first instance.
The principles for granting leave to appeal from guardianship proceedings were set out by White J in SAB v SEM [2013] NSWSC 253 ("SAB v SEM"): [8] Without intending to be exhaustive, the considerations governing a determination as to whether leave should be given will include whether or not a question raised involves a matter of administration or policy which might have general application, whether or not the Tribunal's decision has been arrived at after the Tribunal members have directed themselves properly and fairly on the facts and not gone wrong in law, whether there is an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand, and whether the factual error was unreasonably arrived at and clearly mistaken. (See K v K at [14] and Slinko v Guardian Administration Tribunal at [9]-[16].) [9] Underlying these constraints is the need to recognise that Parliament has entrusted to the Tribunal the primary function of making the factual determinations required for a guardianship order, and that the Court should not grant leave to appeal unless the Tribunal has gone about that fact finding process in a way which is so unorthodox as to be likely to produce an unfair result. It is not enough that a judge might consider that he or she would have reached a different conclusion on the facts from the conclusion reached by the Tribunal. [10] The grant or withholding of leave is to be exercised having regard to the general principles in s 4 of the Act, including the principle that the welfare and interests of the person with disabilities is to be given paramount consideration. But that is not to say that the gateway requiring leave to appeal can be emasculated by the Court's too readily engaging in a detailed review of the facts with a view to detecting possible error.
The principles which govern the granting of leave to appeal pursuant to s 80(2)(b) of the CAT Act are summarised in Collins v Urban [2014] NSWCATAP 17 at [84]: The general principles derived from these cases can be summarised as follows: (1) In order to be granted leave to appeal, the applicant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [19] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; (2) Ordinarily it is appropriate to grant leave to appeal only in matters that involve: (a) issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; or (c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed, BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [20] and the authorities cited there, SAB v SEM [2013] NSWSC 253 at [8] and [9] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; (3) In relation to an application for leave to appeal relating to a question of practice and procedure, the application is to be approached with the restraint applied by an appellate court when reviewing such decisions, especially if the application is made during the course of a hearing: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [21] and the authorities cited there.

Leave to appeal - Consideration

The appellants assert in their amended grounds of appeal that the decision of the Tribunal led to a substantial miscarriage of justice and that it would be unjust to allow the finding to stand (Collins v Urban, [84(2)(c)].
The Notice of Appeal (as amended) also sets out the reasons why the Appeal Panel should grant leave to appeal: 12A. Application for leave to appeal. 1. Refer to the grounds of appeal lodged herewith. 2. There has been a substantial miscarriage of justice by reason of the matters set out in the grounds of appeal. 3. The determination was against the weight of evidence in that there was sufficient evidence before the Tribunal, notably the report of [Dr Y], allowing a determination that there should be a financial manager appointed. 4. The applicants were denied the opportunity of tendering written statements as a result of delay by their solicitor. 5. The medical evidence was not prepared in accordance with the Tribunal's directions. 6. The medical evidence was unsafe to rely upon because of the presence of [ZAF]'s partner, who has barred the applicants from the home of [ZAF] and herself. That person, [ZAG], interpreted on a Mini Mental Examination and translated for [ZAF]. 7. [ZAF] is aged 85 and is at risk of exploitation. 8. The Reasons for Decision contain inaccuracies and discrepancies, list attached.
These reasons overlap to a significant extent with the grounds of appeal set out under 11B of the Notice of Appeal and confirm the appellants' primary contention that a substantial miscarriage of justice occurred as a result of certain aspects of the proceedings before the Tribunal.
The appellants did not press the matter raised in paragraph 5 of the Application for Leave to Appeal and, as noted earlier, also deleted the reference to those same directions made by the Tribunal on 17 March 2015.
It is logical to deal with the grounds of appeal (as amended) in the order in which they appear in the Notice of Appeal and with reference to the submissions made concerning leave to appeal.

Actions of appellants' former legal representative

The Tribunal set out the manner in which it dealt with the issue of what was described in the Reasons for Decision as "Late service of documents" as follows: On 17 March 2015, at a previous Directions Hearing before a single member of the Tribunal, Ms Rosetta Lo Presti was granted leave to represent [the first respondent] in the proceedings. As well, [the appellants' former legal representative] was granted to leave to represent [the appellants]. Directions were made for the filing and service of documents, including a report of a psychogeriatrician, and any further documents relied upon by the applicant to be served by 4 May 2015, and by all parties by 11 May 2015. Various documents were received by the Tribunal within the time frames directed by the Tribunal, with the exception of a bundle of documents lodged by the applicants on 13 May 2015. Those documents, totalling 21 pages, comprised statements of [ZAC] and [ZAD], as well as a print out of an article about dementia. Ms Lo Presti objected to the admission of the documents. She said she had had insufficient time to go through them with [the first respondent], and it was made more time consuming as they required translation into the Italian language. Ms Lo Presti submitted that a short adjournment (made by the Tribunal at the commencement of the hearing) was insufficient to enable proper consideration of the documents. [The appellants' former legal representative] did not press the tender of those documents, indicating that they were provided by way of notice of the oral evidence the applicants intended on giving at the hearing, and the applicants subsequently agreed to the withdrawal of the documents from the evidence before the Tribunal.
As the Appeal Panel understood the appellants' contention in relation to this issue (referenced in the first ground of appeal and paragraph 4 of the application for leave to appeal), the late filing and service of the written statements of ZAC and ZAD occurred as a result of the actions of their former solicitor who failed to file and serve the documents in accordance with the Tribunal's direction made on 17 March 2015.
The first respondent opposed the tender of the statements to the Tribunal and the appellants' former solicitor did not press the tender of those documents. According to the appellants, they were prejudiced in presenting their case to the Tribunal as it was a "daunting task" to remember the content of their written statements which they could not do when they gave oral evidence. According to the appellants, as a result important factual information supporting the financial management application was not taken into account by the Tribunal.
At the request of the appellants' legal representative, and without objection, ZAD gave evidence that the two written statements in question were personally delivered by her to the office of her former solicitor on the date noted in her handwriting at the top of the two statements. This was well before the interlocutory hearing conducted by the Tribunal on 17 March 2015 and therefore well before the date upon which the applicants were required to file and serve any documents on which they intended to rely in the proceedings before the Tribunal.
In oral submissions during the appeal hearing, the appellants' legal representative emphasised that through no fault of the appellants', their case was prejudiced because of the actions of their former solicitor. This is because, according to the submission, the former solicitor failed to file and serve the documents in accordance with the Tribunal's direction made on 17 March 2015. The actions of the appellants' former legal representative, according to the appellants, resulted in an injustice and they submitted that leave to appeal should be granted to remedy that injustice.
The first respondent submitted orally that there was nothing in the primary decision that was wrong, no issue of principle was raised, and no injustice was caused.

Appeal Panel's findings

The late filing and service of the two statements is consistent with the manner in which the Tribunal at first instance recorded the submissions before it. The appellants do not submit, and nor could they, that the Tribunal erred in respect of this issue given that the decision not to press the tender of the two statements was one made by the appellants, presumably on the advice of their former legal representative.
The appellants assert in the Notice of Appeal that:

the statements contained important factual information supporting the application
the late filing and the subsequent inability to rely thereon caused prejudice to the applicants
had that material been tendered, the result may have been otherwise
and that this involved an injustice which was reasonably clear in the sense described in Collins v Urban such that it would be unjust to allow the finding to stand.

The Appeal Panel was not persuaded that this was the case. A close reading of the two statements tendered into evidence at the appeal hearing, for the purpose of considering whether leave to appeal should be granted, reveals the following:

The concern of both daughters as to their father's vulnerability to financial exploitation by other family members. They regard this as being the result of various cognitive problems experienced by their father but also as the result of what they describe as his difficult and irrational behavior which are, according to them, long held character traits.
The two statements outlined some examples of what both daughters regarded as evidence of their father's vulnerability to financial exploitation in Sydney (such as, according to the statements, the first respondent giving open/signed cheque books to individuals, leaving a spare key of his vehicle with his local mechanic when the first respondent travelled overseas). However, a significant part of the statements, and in particular the statement of ZAC, deals in great detail (over 11 pages) with her version of events that occurred in Italy from September to October 2014 relating to her father and what she regards as his vulnerability to the actions of family in that country.

The difficulty for the appellants' application for leave to appeal is that it is clear from the Reasons for Decision that evidence in similar terms was, in any event, before the Tribunal and was considered by the Tribunal.
Such is evident in the following paragraphs of the Reasons for Decision: Application for financial management The applicants submit that there is a need to make a financial management order for their father as they claim that his assets are disappearing and unaccounted for. She states that while [ZAF] was in Italy between September to October 2014, the manager of the [ZAF]'s investment property had contact with [ZAD]. During this contact, the manager advised [ZAD] that [ZAF] had given one of the tenants of his property an amount of cash to erect a makeshift gate, which resulted in the blocking of laundry access for another tenant. The applicants also referred to a practice of [ZAF]'s whereby for a number of years he has left his motor vehicle with a local mechanic for the duration of his regular trips to Italy. According to the applicants, [ZAF] would leave a blank cheque with the mechanic with an understanding that it was to cover registration renewal. However, during [ZAF]'s 2013 trip to Italy, the motor vehicle was used by the mechanic for his own purposes which resulted in damage to the vehicle and the accrual of approximately $180 in unpaid e-way tolls. The applicants submit [ZAF] is being taken advantage of financially by persons related and unrelated. They say it is well-known that he is an easy target, and this has been conceded by his Australian nephew, [the first respondent's Australian nephew], who has asked for, and received sums of money from [ZAF]. The applicants also say [ZAG] has expressed concern that people were taking advantage of [ZAF], and that this concern was expressed during a conversation with ZAC in about September or October 2014. [ZAC] said that her father's property in Italy is currently the subject of a boundary dispute, in which a solicitor in Italy is engaged on [ZAF]'s behalf. [ZAC] states that while in Italy, her father has been vulnerable to fraud and financial exploitation. She said that a nephew of her father's, [the first respondent's nephew], sought to persuade her father to make a power of attorney, despite not having shown any prior interest in her father. [ZAC] also stated that her father had made large cash withdrawals in Italy between 2012 and 2014 totalling approximately €90,000, which she says are unaccounted for. In support of this claim, [ZAC] relied on Italian bank records, most of which appear to indicate withdrawals ranging from €3000 to €15,000 mainly between July and September 2012, with the exception of a withdrawal on 8 August 2014 for €5000. [ZAC] also suggested that cash payments have been made by her father for supposed work on his Italian property since about 2006-2007. They are also concerned that the property is able to be accessed and used by third parties. [ZAC] states her father leaves legal papers visible and his chequebook open. She said her father trusts people, as evidenced by him leaving an open cheque with the mechanic while he is in Italy, which he has been doing for several years. [ZAE] expressed the view that [ZAF]'s issues with managing his financial affairs are more recent, and she opined that her father finds the management of his affairs overwhelming. [ZAG] does not support the application. She told the Tribunal that she could not see any change in [ZAF] over the last few years. She said [ZAF] is very friendly (with the mechanic) and that was the reason why the cheque had been left with him. She said that had never seen [ZAF] with large bundles of money. [ZAF]'s Australian nephew, [the first respondent's Australian nephew], does not support the application. In his written correspondence, he states that [ZAF] manages his own financial affairs and the maintenance of his and [ZAG]'s investment properties. [the first respondent's Australian nephew] also states [ZAF] travels each year to Italy and continues to drive a motor vehicle, and had recently passed a driving test. [ZAF] denied being involved in his uncle's financial affairs. He said that [ZAF] and [ZAG] are reserved in relation to their finances, and use an accountant or solicitor. [the first respondent's Australian nephew] states he finds his uncle to be capable of managing his finances. He further stated that as his uncle and [ZAG] live together and look after each other, any decision in relation to his uncle's care should be made by [ZAG]. Ms Lo Presti told the Tribunal that [ZAF] had asked her to correspond with the solicitor in Italy in relation to the dispute involving [ZAF]'s Italian property. She stated that [ZAF] never made a power of attorney in favour of [the first respondent's nephew], and that he ([ZAG]) "is careful with him". She expressed the view that a financial management order is not required at this stage. She stated that in addition to her services, [ZAF] has a number of people to assist with his legal and financial affairs, including an agent, an accountant and [ZAG]. Whilst Ms Lo Presti concedes [ZAF] has some memory difficulties, she submits that a financial management order is not required at this stage.
The Tribunal's Reasons for Decision addresses this evidence in the following terms: The Tribunal acknowledges that the evidence about [ZAF]'s practice of leaving open cheques with his mechanic is concerning. His reluctance to utilise filling cabinets for storage of his legal and financial documents is less so, particularly if such practices are not necessarily new or recent practices, but rather, have been adopted by [ZAF] for a considerable period of time. In the Tribunal's view, there was insufficient evidence that such practices are as a result of any recent decline in [ZAF]'s capacity to manage his affairs, but rather, appear to point to longer-standing (and not ideal) habits and practices. It appears to the Tribunal that the major concerns raised by the applicants relate to [ZAF]'s assets in Italy and his actions whilst in that country. Such actions include the withdrawal of large sums of Euros during the period 2012-2014. The applicants provided Italian banking records to this effect, the majority of which indicate such transactions occurred in 2012. Notably, this is at a time where there is insufficient medical evidence to indicate [ZAF] had cognitive issues affecting his capacity to manage his affairs.
In the Appeal Panel's view, even if it accepted that through no fault of the appellants, but as result of the actions of their former legal representative, the two statements were not tendered into evidence before the Tribunal, the appellants have failed to establish that there is any injustice which would require or justify the granting of leave to appeal in the circumstances.

Medical evidence

The Tribunal set out in some detail the medical evidence before it. This included the following references to ZAG's attendance at the medical appointments the first respondent attended with Dr Z and Dr Y. The Tribunal had before it a report of [Dr Z], Geriatrician, and dated 13 January 2015. [Dr Z] was referred by [ZAF]'s general practitioner, [Dr X], for review of [ZAF]'s cognition. [ZAF] attended with [ZAG], who helped to interpret for [ZAF] during the appointment. [Dr Z] noted [ZAF] lives with [ZAG], his partner of 32 years, in a home in Willoughby. [Dr Z] indicated [ZAF] and [ZAG] do all the household chores including gardening, and do not utilise external help. … The Tribunal also had before it a report of [Dr Y], Consultant Psychiatrist, dated 4 May 2015. [ZAF] attended one appointment with [Dr Y] on 10 April 2015, together with [ZAG] and an Italian interpreter.
As the Appeal Panel understood the appellants' contention in relation to this issue (referenced in the second ground of appeal and paragraph 6 of the application for leave to appeal), the medical evidence in the form of the written reports by Dr Z and Dr Y was flawed due to the presence of ZAG and her involvement in each of the appointments with those practitioners. As a result, according to the appellants, the medical evidence should not have been relied upon.
The appellants' written submissions dated 23 November 2015 set out (at [21]) the appellants' view that the examination and assessment process was flawed, open to manipulation and that there is no reliability that the picture presented to the Tribunal was factually correct and reliable.
In oral submissions, the appellants' legal representative also referred the Appeal Panel to the principles set out in s 4 of the Guardianship Act and drew particular attention to the principle that the welfare and interests of people with disabilities should be given paramount consideration (s 4(a)) and that such persons should be protected from neglect, abuse and exploitation (s 4(g)). As the Appeal Panel understood the appellants' contention in this regard, the Tribunal should have placed greater weight on these considerations than it did and that, had the Tribunal done so, it would have reached a different conclusion as to the weight to be accorded to the medical opinions.
The appellants also seek leave to appeal against the Tribunal's decision on the basis that Tribunal gave insufficient weight to the report of Dr Y and correspondingly placed too much weight on the report of Dr Z. This is set out in the fifth ground of appeal and paragraph 3 of the application for leave to appeal.
The first respondent's submissions on these aspects of the leave application, as far as they were relevant, were that the medical evidence was not flawed as a result of ZAG's presence during the assessments undertaken by both medical practitioners and that there was no injustice caused as a result of the way that the Tribunal dealt with the medical reports.

Appeal Panel's findings

The Tribunal's Reasons for Decision make it clear that the appellants, through their former legal representative, made a similar criticism of the reliability of Dr Z's evidence as reflected in the following paragraph: [The appellant's former legal representative] submits that [Dr Z]'s opinion is clouded by the absence of an Italian interpreter, and by the level of [ZAG's] input. [The appellant's former legal representative] noted that whilst [the first respondent] may be a simple person, he reads newspapers every day. [The appellant's former legal representative] prefers the findings of [Dr Y], whose opinion is that [the first respondent] has cognitive impairments about which he ([the first respondent]) has limited insight.
The Reasons for Decision specifically address the manner in which the Tribunal took account of ZAG's presence at these assessments: The Tribunal gave careful consideration to the evidence of the medical professionals, both of whom assessed [ZAF] within a three month period, and reached somewhat different conclusions about his capacity. The Tribunal took into account the fact that [ZAG] assisted in interpreting during [Dr Z]'s assessment, whereas an independent interpreter was present during [Dr Y]'s assessment. However, even taking into account that difference and its potential impact on the reliability of the scores recorded for [ZAF], there is not dispute that [ZAF] appears to function reasonably well in terms of his daily living. In this regard, the Tribunal also notes [ZAF] continues to drive a car and live in the community without external supports.
The more fundamental difficulty with this aspect of the application for leave to appeal, however, is that the Reasons for Decision make clear that the Tribunal's decision to dismiss the financial management application did not rely on the Tribunal's view of the medical evidence.
Whilst the Tribunal discussed in detail the content of the two medical reports, the Tribunal dismissed the application for financial management on the basis of a finding that it would not be in the first respondent's best interests to make a financial management order.
Such was evident from the following paragraphs of the Reasons for Decision: The Tribunal noted the different conclusions reached by the medical professionals, both of whom are specialists in their respective fields, and also noted the short period of three months between assessments. Notwithstanding those different opinions, the Tribunal considered that, in any event, the available evidence did not indicate that it was in [ZAF]'s best interests that a financial management order should be made. The Tribunal notes that [ZAF] has engaged, and continues to engage the assistance of professional services to assist with management of his legal and financial affairs. Ms Lo Presti is engaged by [ZAF] in relation to the legal matters concerning his Italian property. She also confirmed that there has been no conferring of a power of attorney to [the first respondent's nephew] in Italy. Such evidence indicates that arrangements have been made to assist in the protection of [ZAF]'s assets in Italy. However, it is relevant that any financial management order made by this Tribunal is unlikely to apply to [ZAF]'s property in Italy or to any other assets he has in that country. As a consequence, it would be of little or no utility to make a financial management order in order to address the concerns surrounding [ZAF]'s Italian assets. In this regard, the Tribunal notes that the NSW Trustee has no reciprocal arrangements with Italy in relation to the management of estates. In Re W and L (Parameters of Protected Estate Management Orders) [2014] NSWSC 1106, Lindsay J states that the exercise of the protective jurisdiction is not dependent on the existence of property; and that the Court can, as a matter of jurisdiction, appoint a manager to a presently unpropertied estate in anticipation of a protected person's receipt of property for management. However, his Honour emphasises the importance of identifying the practical utility of an order where there is effectively no property to manage: That said, the practical utility of the office of a protected estate manager does generally depend upon the existence of property under management. Without property, or at least the prospect of property, there is no "estate" to manage. [Footnotes omitted] The utility of a management order must, like other features of the protective jurisdiction, be measured by reference to whether it is of benefit to, and in the interests of, the protected person [Footnotes omitted]. Ordinarily, an absence of property under management is likely to tell decisively against the making of management orders, or decisively in favour of an order for revocation of management orders. [Footnotes omitted] Having determined that a financial management order would be unable to address the concerns about [ZAF]'s Italian assets, the Tribunal considered whether the making of a financial management order as it applies to [ZAF]'s Australian estate would be in his best interests. Having regard to the principles in section 4 of the Guardianship Act, and on the available evidence, the Tribunal could not be so satisfied. The Tribunal acknowledges the concerns expressed by the applicants. The Tribunal finds that their application is motivated by a genuine concern for their father's welfare. Whilst the Tribunal must give paramount consideration to the welfare and interests of [ZAF], and that he should be protected from abuse and exploitation, the Tribunal is also required to consider the other important principles in section 4, which include that [ZAF]'s freedom of decision and freedom of action should be restricted as little as possible, that he should be encouraged as far as possible to live a normal life in the community, that his views should be taken into account as much as possible, that his family relationships and his cultural and linguistic environment should be recognized, and that he should be encouraged to be as self-reliant as possible in respect of his personal, domestic and financial affairs. The Tribunal takes into account [ZAF]'s strong opposition to the making of a financial management order. He expresses a desire to maintain his independence, and is resistant to changes being made at this point in time. In this regard, the Tribunal notes that [ZAF] has the support of his long-term partner, and continues to engage professional services to assist him with his affairs. On balance and on the evidence before it, the Tribunal was not satisfied that a financial management order should be made. Accordingly, the application is dismissed.
It is clear from these Reasons for Decision that whether or not ZAG's presence at the medical appointments had an impact on the reliability of the expert opinions contained in those reports, it ultimately had no bearing upon the outcome of the proceedings at first instance given the basis upon which the Tribunal dismissed the application. Accordingly, the Appeal Panel was not persuaded that there was an injustice on this basis which would require or justify the granting of leave to appeal.
The appellants' contention that leave to appeal should also be granted on the basis that the Tribunal accorded insufficient weight to the report of Dr Y and too much weight on the report of Dr Z, and an injustice thereby resulted, is, in the Appeal Panel's view, attended with the same difficulties. The first respondent's capability to manage his own affairs was not, ultimately, the crux of the Tribunal's decision. As previously noted, the Tribunal did not make a finding about this issue but rather dismissed the application on the basis that it was not satisfied that it was in the first respondent's best interests to make a financial management order. The appellants have failed to establish that there is any injustice which would require or justify the granting of leave to appeal on this ground.

ZAF's legal representative

The Tribunal dealt with an issue concerning Ms Lo Presti's representation of her client under the heading "Legal representation" as follows: Towards the very end of the Tribunal hearing, it became apparent that Ms Lo Presti had been engaged by [the first respondent] some months earlier to advise and correspond with a solicitor in Italy in relation to [the first respondent's] legal and financial affairs in Italy. Ms Lo Presti disclosed that she had also been involved in the drafting of documents for [the first respondent], including a power of attorney instrument which had not been executed. In light of the fact that [the first respondent's] capacity to manage his legal and financial affairs was in dispute, this information raised the possibility of a possible conflict between Ms Lo Presti's duty to serve the best interests of her client and her own interests to act for a client in circumstances where she may be required to give material evidence. Clauses 12.1 and 27.1 of the Solicitor's Rules state that: 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. 27.1 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 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 continue to act for the client unless doing so would prejudice the administration of justice. In considering whether Ms Lo Presti continuing to act for [the first respondent] would prejudice the administration of justice, the Tribunal took into account that considerable evidence had already been given during the course of the hearing and the hearing was expected to conclude shortly. The Tribunal also had the opportunity to question [the first respondent] directly throughout the hearing, and had intimated that it may wish to question [the first respondent] in the absence of the participants at a later stage. Upon receiving becoming aware [sic] of the information disclosed by Ms Lo Presti, the Tribunal decided to proceed to question [the first respondent] on his own. After doing so, and summarising his evidence in the presence of the participants, there were no further submissions by the legal representatives. In those circumstances, namely, the timing of information as conveyed, and in light of the opportunity for the Tribunal to question [the first respondent] separately, the Tribunal did not consider that Ms Lo Presti continuing to act for [the first respondent] for the remainder of the hearing would prejudice the administration of justice.
The appeal ground in relation to this issue (referenced in the fourth ground of appeal but not referred to in the application for leave to appeal) was to the effect that as Ms Lo Presti had acted for the first respondent in past matters, she was in a position of conflict and should not have represented him in the Tribunal proceedings. Further, the Tribunal below erred in allowing Ms Lo Presti to continue to act in such circumstances, all the more so in that she may have been a potential witness in the proceedings.
In oral submissions during the appeal hearing, the appellants' legal representative asserted that Ms Lo Presti should never have acted in the proceedings from the outset and that a separate representative should have been appointed for the first respondent rather than leave being granted for a legal representative. This assertion was made on the basis that, in the appellants' view, the first respondent did not have the capacity to instruct a solicitor.

Appeal Panel's findings

The oral submissions by the appellants' legal representative appear to raise a different matter to that contained in the appeal ground. In relation to the oral submissions, the decision to grant leave for the first respondent to be legally represented was made by a differently constituted Tribunal at an interlocutory hearing on 17 March 2015. There was no indication in the Reasons for Decision of the Tribunal on 18 May 2015 that an application was made for this leave to be revoked on the basis that the first respondent lacked the capacity to instruct a solicitor or that a separate representative should be appointed. Nor, it seems, has there been any such application for the purpose of these internal appeal proceedings.
The difficulty with the appeal ground as stated in ground 4, as it appears to the Appeal Panel, is that whilst it appears from the Reasons for Decision that there was evidence before the Tribunal that the first respondent's legal representative was involved in the drafting of a power of attorney for her client, and acted for him in respect of other matters, the power of attorney was not executed by the first respondent. As there was no evidence that the first respondent's legal representative had provided certification required by the Powers of Attorney Act 2003 (NSW), it is difficult to see how the asserted conflict arose.
Unusually, given this ground of appeal, it does not appear that any challenge was made to Ms Lo Presti's representation of the first respondent during the callover before a differently constituted Appeal Panel on 20 October 2015.
The Appeal Panel was not persuaded that there is any injustice which would require or justify the granting of leave to appeal on the ground set out in the fourth ground of appeal or raised in oral submissions.

Against the weight of the evidence

The final ground of appeal for which leave was sought was that "even without the further evidence not put before the Tribunal, the Tribunal's determination was against the weight of evidence".
Paragraph 3 of the Application for Leave to Appeal states that "The determination was against the weight of evidence in that there was sufficient evidence before the Tribunal, notably the report of [Dr Y], allowing a determination that there should be a financial manager appointed."
It is not enough that a judge, or in this instance, the Appeal Panel, might consider that it would have reached a different conclusion on the facts from the conclusion reached by the Tribunal (SAB v SEM at [9]). Leave to appeal should not be granted unless the Tribunal went about the fact finding process (here in relation to financial management proceedings) in a way which is so unorthodox as to be likely to produce an unfair result (SAB v SEM at [9]).
In its Reasons for Decision, the Tribunal provided a detailed summary of the evidence before it, weighed the medical evidence before it, made relevant findings and, as previously noted, ultimately decided not to make a financial management order in respect of the first respondent on the basis that it would not be in his best interests to do so.
The Appeal Panel was not persuaded that the Tribunal below went about the fact finding process in such an unorthodox manner as to have produced an unfair result. Accordingly, the Appeal Panel was not persuaded that the Tribunal's determination was against the weight of the evidence.

Conclusion

For these reasons, the Appeal Panel refused leave to appeal and dismissed the appeal.

Costs

The Appeal Panel directs that any application for the costs of the appeal must be filed and served on each party, with supporting submissions, within 14 days of the date of this decision. Any opposing submissions must be filed and served on each party within a further 14 days. Any party desiring that the question of costs should not be reserved for a decision "on the papers", but should be the subject of a hearing, should address this matter in their submissions. Unless persuaded otherwise, the Appeal Panel will make its decision "on the papers".
The Appeal Panel notes that it will not consider the submission of a party unless there is written confirmation that the same submission has been served on each other party to this appeal.

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

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 May 2016

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