ZAH v ZAI

NCAT Appeal Panel|2016-10-06

ings: s 65 of the Civil and Administrative Tribunal Act 2013 (NSW). Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Guardianship Division Date of Decision: 20 July 2015 Before: R Bailey (Senior Member), C Kennedy (Senior Member - Professional), J Cootes (General Member - Community) File Number(s): C/57559

Overview

ZAH has appealed from several orders made by the Guardianship Division of the Tribunal in relation to her mother, ZAK. The current guardianship order, which was made at a review hearing on 20 July 2015, appoints the Public Guardian to make decisions about where ZAK should live and who should have access to visit her and appoints two of ZAH's siblings, ZAJ and ZAI, jointly to make decisions about her health care and medical and dental treatment. Those appointments, which were for 12 months, continue in force until the Guardianship Division reviews them after we have handed down this decision. We understand that ZAH wants to be her mother's sole guardian.

Background

ZAK is an 89 year old woman who has been diagnosed with dementia. She lives in supported accommodation with her husband ZCH. She has four children: ZAH (who is the Appellant), ZAJ, ZAI and a fourth son who did not take part in these proceedings.
By two separate instruments dated 23 May 2007: 1. ZAK appointed her husband ZCH as her attorney. The instrument provided that if ZCH was unwilling or unable to act as attorney, ZAJ and ZAI were appointed jointly and severally as her attorneys. The attorneys accepted their appointments on 11 October 2013; and 2. ZAK appointed ZAJ and ZAI jointly as her enduring guardians. Those appointments were accepted on 11 October 2013.
On 25 September 2012 ZAK appointed ZAH as her power of attorney and her enduring guardian.
On 18 February 2014 ZAK signed a document which purported to revoke the appointments made on 23 May 2007.
Late in 2014 ZAJ and ZAI applied to the Guardianship Division for the appointment of a financial manager and guardian. At that time ZAH also applied for a review of the February 2014 revocation of the May 2007 appointments and for a review of the making of the power of attorney in September 2012.
By its orders which took effect on 22 December 2014(following a hearing on that day) the Guardianship Division: 1. appointed ZAJ and ZAI jointly as guardians of ZAK for 12 months to make decisions about her access, accommodation, health care, medical and dental treatment and services; 2. appointed ZAJ and ZAI jointly and severally as ZAK's financial managers. The Tribunal also revoked the guardianship appointment made in 2012 and declared invalid the enduring power of attorney also made in 2012; 3. determined not to carry out a review of the revocation on 28 January 2014 of the enduring power of attorney made by ZAK on 23 May 2007 appointing ZCH, ZAJ and ZAI; and 4. dismissed the application by ZAI and ZAJ for a review of that revocation
By orders which took effect on 19 January 2015 (following the hearing on 22 December 2014), the Tribunal: 1. revoked ZAK's 25 September 2012 appointment of ZAH as her enduring guardian; 2. declared the enduring power of attorney made by ZAK on 25 September 2012 appointing ZAH, to be wholly invalid;
ZAH then applied to the Tribunal to review the guardianship order. That application was heard on 20 July 2015 together with the 12 month statutory review of the order which was brought forward by six months. The Tribunal refused an application for an adjournment and varied the guardianship order made on 22 December 2014. The following orders were made: 1. This is a continuing guardianship order for a period of 12 months from the date of this order. 2. ZAI of (address deleted) and ZAJ of (address deleted) and the Public Guardian are appointed as joint guardians for ZAK. 3. The Public Guardian has the following functions: 1. Access to make decisions about who can have access to [ZAK] and under what circumstances such access shall take place, including to decide which services are necessary to implement any access arrangements for [ZAK]; 1. Accommodation to decide where [ZAK] may reside. 1. ZAI (address deleted) and ZAJ (address deleted) have the following functions: 1. Health Care To decide what health care [ZAK] may receive 1. Medical and Dental Consent To make substitute decisions about proposed minor or major medical or dental treatment, where [ZAK] is not capable of giving a valid consent.
On 23 December 2015 the Supreme Court determined an application made by ZAH: J v J [2015] NSWSC 1984. The main question was whether she, as a resident of the family home since July 2006, had an equitable life estate in that property which was owned by ZAK and her husband as joint tenants. The Court found that ZAH did not have any interest in the property.

Preliminary issues

This decision addresses the following preliminary issues: 1. whether the Appeal Panel should adjourn the hearing or, alternatively, give ZAH further time to provide evidence or submissions; 2. whether the Appeal Panel should take into account further or fresh evidence filed by ZAH and by ZAI; 3. whether the Appeal Panel should extend the time to appeal from the financial management order made on 22 December 2014; 4. whether the Appeal Panel should extend the time to appeal from the guardianship order made on 22 December 2014; 5. whether the Appeal Panel should extend the time to appeal from other related orders made on 22 December 2014 and 19 January 2015; and 6. whether the Appeal Panel should grant leave to appeal from the interlocutory decision to refuse an adjournment application.

Application for adjournment or to provide further submissions

ZAH's solicitors applied for an adjournment of the Appeal Panel hearing after prompting from the Appeal Panel as to whether an adjournment was sought. Mr Christie, the Principal of Jesus' Advocacy International, had written in an email to the Tribunal dated 6 October 2016 at 9.01 am: Attending solicitor for today sick. I will attend ([ZAH] also will be there hopefully) Adjournment possibly best: will cover as best enabled.
Mr Christie did not formally apply for an adjournment until prompted by the Panel.
The basis for the adjournment application was that the solicitor with carriage of the matter was unavailable to represent ZAH due to ill health and that Mr Christie had to take over at short notice. Mr Christie said the other solicitor had worked extensively with ZAH while he had only a "rough working knowledge" of the matter. He said that between four and six folders of material were being prepared but had not been completed. Mr Christie was not able to say what the folders contained.
Mr Christie said he had received a text message from the solicitor who had had carriage of the matter on the morning of the hearing saying that she was unable to attend for reasons that we do not need to disclose and asking him to appear for her. Mr Christie also emphasised that his client was "disabled" which, he said, was a complication in its own right. When pressed to explain the nature of his client's disability, he said that she has mobility difficulties and emotional or personal issues associated with the experience of domestic violence. Mr Christie suggested from the bar table that his client's "nervous tension" may have "rubbed off" on the solicitor. In the context of this application, Mr Christie did not point to any supporting medical evidence relating either to ZAH or the solicitor.
ZAJ and ZAI's representative and ZAK's separate representative opposed the adjournment.
There have been 9 directions hearing in this matter over a period of more than 11 months. On each occasion directions were made for the filing and service of submissions or other material. It was first listed in December 2015 but was adjourned to give ZAH an opportunity to instruct other solicitors. Jesus' Advocacy International first appeared for ZAH at a directions hearing on 28 July 2016 when a two week adjournment was granted. On 10 August 2016 the Appeal Panel gave detailed directions. Two versions of the Notice of Appeal had already been filed but the Appeal Panel allowed the Appellant until 22 August 2016 to file a further amended Notice. ZAH did not comply with that direction and sought an extension of time. That application was refused. Despite that, ZAH served an amended Notice on the parties on 8 September 2016 and the parties responded, as best they could, to those grounds. The amended Notice was not filed in the Tribunal until 6 October 2015, the day before the hearing.
Unaware that a differently constituted Appeal Panel had refused an extension of time, we allowed ZAH's to rely on the amended Notice of Appeal. Neither party objected to that course.
Adjournment applications should be considered in light of the guiding principle which is to facilitate the just, quick and cheap resolution of the real issues in the proceedings: NCAT Act, s 36.
While it is unfortunate that the solicitor with the most knowledge of the matter was unable to represent ZAH at the hearing, the fact that her supervising solicitor has, in his words, only a "rough working knowledge" of the matter does not justify further cost and delay. There was no medical evidence setting out the nature or effect of any disability ZAH may have or its effect on her ability to instruct solicitors. Mr Christie suggested that it was open for the Appeal Panel to conclude on the basis of our observation of ZAH during the hearing that obtaining instructions has been difficult. We are not in a position to make such a finding merely on the basis of observation but even if that is the case, ZAH is legally represented and it is the responsibility of her solicitors to present her case as best they can.
It would not advance the principles of expedition or economy to grant an adjournment. The respondents to the appeal have spent considerable time and money defending the proceedings since they were lodged in August 2015. In addition, there is some urgency because the guardianship order made in July 2015 was for 12 months and is pending review following the Appeal Panel's decision: Guardianship Act 1987 (NSW), s 25(6).
Alternatively, if an adjournment is refused, ZAH requested that she be permitted to make further submissions. Mr Christie sought an opportunity to file and serve further evidence, authorities and submissions.
ZAH's solicitors have had adequate time to prepare for the case. The solicitor with carriage of the matter only became unavailable on the day before the hearing. We are not persuaded that even if further time were given, the solicitors would be able to provide material which would advance ZAH's appeal.

Applications to adduce fresh evidence

Although the appeal was confined to questions of law, ZAH sought leave to adduce evidence filed with the Appeal Panel and comprising documents about 15 cm thick. ZAH's representative was not able to tell the Appeal Panel whether the box of papers contained documents that had previously been tendered in evidence before the Guardianship Division or whether the material was fresh evidence. Nor was he able to identify the content of the material. The Appeal Panel perused the documents which contained photos, greeting cards, diary entries, financial records, correspondence, statutory declarations, copies of text messages, character references, newspaper clippings, medical reports and hospital records. There may well have been some method of organisation of the material in the box, but if so, it was not readily apparent to the Appeal Panel.
ZAH also sought leave to provide fresh evidence from four witnesses even though statements had not been filed. Those witnesses were Dr Tam, a geriatrician, as to ZAK's state of health and the relationship between ZAK and ZAH; Dr Kana, ZAH's GP, Michael Kelly, a friend of ZAH and Dianthia Zsche, ZAH's psychologist. At the hearing ZAH added David Pim, a religious counsellor to the list.
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. If the Appeal Panel is to exercise its discretion in favour of the party applying for leave, it must be "affirmatively satisfied" that, having regard to the findings of the Tribunal at first instance, the further evidence, if tendered at the hearing conducted by the Tribunal was "likely to have produced a different result": Building Professionals Board v Hans (2008) NSWADTAP 13 at [54].
In the absence of any submissions as to which document, if any, was sought to be tendered as fresh evidence on appeal, we decline to allow fresh evidence to be tendered. Further, we have not taken into account any document which had previously been filed with the Tribunal unless that document was brought to our attention. The only document in that category was a report from Mr Rock, clinical neuropsychologist, dated 19 March 2015. The report assesses ZAH's cognitive function and provides an opinion on whether she would find it difficult to represent herself in Tribunal proceedings. The report is of no relevance to this appeal because we have not extended time to appeal from decisions made in December 2014 and January 2015 when ZAH was not represented. ZAH was legally represented at the hearing in July 2015.
ZAI filed a statutory declaration dated 4 March 2016 setting out the family's circumstances and his view that the current arrangements should remain in place. ZAI's solicitor did not seek to tender that document and we have not taken it into account.

Extension of time to appeal from 2014 financial management order

On 22 December 2014 the Guardianship Division made a financial management order in relation to ZAK's estate and appointed ZAJ and ZAI jointly as financial managers. ZAH purports to appeal from this decision.
The appeal was lodged well out of time. ZAH maintains that the Appeal Panel gave her permission in a directions hearing on 3 September 2015, to appeal from the financial management order. The Appeal Panel's record of the directions made on that day do not include any reference to such a decision. In the absence of any evidence supporting ZAK's assertion that the Appeal Panel made such an order, the Panel must now determine whether to extend the time to appeal from that order.
Time should not be extended because on 23 December 2015 the Supreme Court declared that ZAK was incapable of managing her affairs and ordered that her estate be subject to management under the NSW Trustee and Guardian Act 2009 (NSW): J v J [2015] NSWSC 1984 and that management of the estate be committed to the NSW Trustee. Significantly, Lindsay J also noted that his order has the effect of suspending the operation of any otherwise subsisting power of attorney granted by ZAK as well as the financial management orders made by the Guardianship Division which appointed ZAI and ZAJ jointly.
Lindsay J also recorded at [24] that ZAH had personally confirmed that she would submit to the appointment of the NSW Trustee as financial manager of her mother's property. In circumstances where an order is currently in force in relation to ZAK's estate, the Tribunal does not have jurisdiction to make a new financial management order: Guardianship Act, s 25K(2); NZN [2014] NSWCATGD 19 (25 March 2014); XC v Protective Commissioner and Ors [2006] NSWADTAP 64 (6 December 2006). Section 25K(2) provides that: 25K Tribunal cannot make financial management order in certain circumstances (2) The Tribunal does not have jurisdiction to make any financial management order (including an interim financial management order) in respect of a person if an order made under the NSW Trustee and Guardian Act 2009 or the Mental Health Act 2007 is in force in respect of any part of the person's estate.
ZAH's application to extend time to appeal from the financial management order made by the Tribunal on 22 December 2014 is refused.

Extension of time in relation to 2014 guardianship order

On 22 December 2014 the Guardianship Division made a guardianship order. In the original Notice of Appeal filed on 24 August 2015 and each amended Notice, ZAH has sought to appeal from that order. As it was lodged out of time, we need to decide whether to accept it.
An appellant has 28 days from receiving the reasons to lodge an internal appeal: Civil and Administrative Tribunal Rules 2014 (NSW) (NCAT Rules), r 25(4)(c). The Tribunal may extend the time for the lodgement of an appeal: NCAT Act, s 41.
In Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 at [22] the Appeal Panel set out the principles which govern the granting of an extension of time to appeal: The considerations that will generally be relevant to the Appeal Panel's consideration of whether to grant an extension of time in which to lodge a Notice of Appeal include: (1) The discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the appellant - Gallo v Dawson [1990] HCA 30, 93 ALR 479 at [2], Nanschild v Pratt [2011] NSWCA 85 at [38]; (2) The discretion is to be exercised in the light of the fact that the respondent (to the appeal) has already obtained a decision in its favour and, once the period for appeal has expired, can be thought of as having a "vested right" to retain the benefit of that decision - Jackamarra v Krakouer (1998) 195 CLR 516 at [4], Nanschild v Pratt [2011] NSWCA 85 at [39] and, in particular, where the right of appeal has gone (because of the expiration of the appeal period) the time for appealing should not be extended unless the proposed appeal has some prospects of success - Jackamarra at [7]; (3) Generally, in an application for an extension of time to appeal the Appeal Panel will be required to consider: (a) The length of the delay; (b) The reason for the delay; (c) The appellant's prospects of success, that is usually whether the applicant has a fairly arguable case; and (d) The extent of any prejudice suffered by the respondent (to the appeal), - Tomko v Palasty (No 2) [2007] NSWCA 369; (2007) 71 NSWLR 61 at [55] (per Basten JA) but note also [14], Nanschild v Pratt [2011] NSWCA 85 at [39] to [42]; and (4) It may be appropriate to go further into the merits of an appeal if the explanation for the delay is less than satisfactory or if the opponent has a substantial case of prejudice and, in such a case, it may be relevant whether the appellant seeking an extension of time can show that his or her case has more substantial merit than merely being fairly arguable - Tomko v Palasty (No 2) [2007] NSWCA 369; (2007) 71 NSWLR 61 at [14] (per Hodgson JA, Ipp JA agreeing at [17]) and Molyneux v Chief Commissioner of State Revenue [2012] NSWADTAP 53 at [58] - [59].
In a statement dated 29 January 2015 ZAH says she received the reasons a few days before the adjourned hearing in July 2015. It appears that she was mistakenly referring to a decision relating to a hearing on 8 April 2015 which was adjourned. We have reached that conclusion because ZAH's solicitors at the time, Penhall & Co, wrote to the Tribunal on 23 February 2015 stating that a copy of the reasons had been received on Friday 20 February 2015 at 10.42 am. In submissions at the appeal hearing, ZAH's representative said that his client received the reasons in late February 2015. The Tribunal file contains a letter addressed to ZAH dated 20 February 2015. We find that ZAH received the decision on 20 February 2015. As the Notice of Appeal was filed on 24 August 2015, the appeal is 5 months out of time.
ZAH's statement also sets out the reasons for lodging a late appeal. She says that she did not know what to do when she heard the Tribunal deliver its decision on 22 December 2014. She said she asked a friend who told her that she should request a review of the decision. ZAH applied to the Guardianship Division for a review of the order: Guardianship Act, s 25.
In March 2015, ZAH says she went to the Supreme Court with documents seeking to appeal the decision. She said she spoke to a person who she believed was the duty registrar and was told that she could not file an appeal until the review proceedings had been completed. No other evidence apart from her assertion has been provided to support the content of this conversation.
ZAH consulted a solicitor, Mr Penhall, in February 2015. Following a hearing on 8 April 2015 she said she told Mr Penhall that she wanted to appeal. ZAH then states: The hearing was adjourned to July 2015 but the reasons for decision were not received by me until a few days before the adjourned hearing in July 2015.
ZAH says she attended the review hearing in the Guardianship Division on 20 July 2015. Mr Penhall told her that he could no longer act for her and she says she began to look for another solicitor. After receiving the Guardianship Division's reasons on review on or about 1 September 2015 ZAH says she went to see a new solicitor who filed an appeal in early October 2015. In fact the appeal was filed on 24 August 2015. Shortly after that time the new solicitor ceased to act for her.
We are not persuaded that ZAH filed the appeal late because of advice she received from friends or court staff. She had access to legal advice as early as February 2015. We accept the submission from ZAI and ZAJ's representative that it can be implied that, whatever advice she received, ZAH initially decided to seek a statutory review of the December 2014 guardianship order rather than to appeal from the decision. The delay of 5 months, while not inordinate, is significant. ZAH had access to legal advice around the time she received the Guardianship Division's reasons.
It is also significant that the guardianship order of December 2014 is not the operative order. Following the review of that guardianship order at the hearing on 20 July 2015, the guardianship order was varied. It must follow that the operative order is the order of 20 July 2015. That order distributes guardianship functions among ZAI, ZAJ and the Public Guardian. That is the current position. Even if ZAH was successful on appeal and the guardianship order made in December 2014 was set aside, the status quo would not change.
It is in the interests of the just, quick and cheap administration of justice to refuse ZAH's application to extend time to lodge an appeal from the 2014 guardianship order.

Extension of time in relation to other orders

In the amended grounds filed with the Appeal Panel the day before the hearing, ZAH sought to appeal from the following orders of the Guardianship Division: 1. to declare that the enduring power of attorney made by ZAK on 25 September 2012 appointing ZAH is invalid; (order made on 19 January 2015); 2. to declare that the enduring power of attorney made by ZAK on 25 September 2012 appointing ZAH is revoked; (order made on 19 January 2015) 3. not to carry out a review of the revocation on 28 January 2014 of the enduring power of attorney made by ZAK on 23 May 2007 that appointed ZCH, ZAJ and ZAI; (order made on 22 December 2014); and 4. to dismiss ZAI and ZAJ's applications for a review of the revocation of the enduring power of attorney made by ZAK on 23 May 2007 that appointed ZCH, ZAJ and ZAI; (order made on 22 December 2014).
We have found that ZAH received the reasons for these decisions by letter dated 20 February 2015. As ZAH did not appeal from the decisions listed above until 6 October 2016, they are 18 months out of time.
A delay of 18 months where the general rule is 28 days is considerable. No separate reasons have been given for the delay. ZAH has no prospects of success on appeal because no grounds of appeal specifically address these orders. The respondents are prejudiced by an extension of time because the current guardianship order is due to be reviewed.

Appeal from refusal to adjourn proceedings

On 20 July 2015 Mr Penhall, representing ZAH, applied for an adjournment of the requested review and end of term review of the guardianship order made on 22 December 2014. The reasons for that application were that he had received some documents three working days before the hearing; he wished to cross-examine ZAK's husband, ZCH but he was not at the hearing because of ill-health; ZAH had only just received notice of the sale of the house in which she was living; he wished to issue summonses for ZCH's medical records and he objected to an interpreter being present.
The Guardianship Division refused the adjournment. It found that ZAH had been told on 30 June 2015 that the house would be sold. Mr Penhall had been overseas and had returned 3 working days before the hearing. The Tribunal found that there had been sufficient time to view the documents and respond to the information that the house would be sold. On the basis of evidence from the Director of Nursing at the facility where ZCH lived, the Tribunal found that even if an adjournment was granted, there was no evidence suggesting that his capacity to understand and participate in the proceedings would improve.
On the question of summonses, the Tribunal found that as Mr Penhall had been granted leave to represent ZAH on 21 May 2015, he had had ample time to issue summonses.
Leave is required to appeal an interlocutory decision: NCAT Act, s 80(2)(a ). The refusal to grant an adjournment is an interlocutory decision under s 4 because it is a "decision … concerning any of the following … (a) the granting of a stay or adjournment". The word "concerning" is a strong indication that the refusal of an adjournment is also an interlocutory decision. The Appeal Panel has previously taken that view: Walker v Paloma International Pty Ltd [2014] NSWCATAP 111; Hadidi v Owners Corporation Strata Plan 84787 [2015] NSWCATAP 74.
The legislation does not provide any guidance as to the relevant considerations when determining whether to grant leave against an interlocutory decision. Those principles must be derived from the objects of the NCAT Act and the nature of the appeal. The 'guiding principle' of the NCAT Act is "to facilitate the just, quick and cheap resolution of the real issues in the proceedings": s 36. The purpose of requiring leave to appeal from interlocutory decisions is to minimise costs and to ensure that the real issues in dispute are determined justly and quickly. The importance and complexity of the subject matter is also relevant.
The Appeal Panel summarised the relevant principles for granting leave to appeal from an interlocutory decision in Commissioner of Police, New South Wales Police Force v Fine [2014] NSWCATAP 24 at [19]. The granting of leave should be a relatively rare occurrence but there are no rigid rules or exhaustive criteria which can be set down. If there has been an error of principle or the decision was "attended with sufficient doubt" the Appeal Panel may grant leave: [19] It is settled law that leave to appeal against an interlocutory decision is reserved for cases with special features warranting appellate review. The fact that the statute imposes a leave requirement makes it clear that such appeals are not to be brought as a matter of routine: Niemann v Electronic Industries Ltd [1978] VR 431 at 436. The High Court in Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at 177 acknowledged, referring to the often cited passage of Sir Frederick Jordan in In re the Will of Gilbert, that "a tight rein" had to be kept on interlocutory appeals if all exercises of discretion in interlocutory applications were not to be transferred to a court of appeal. Nonetheless, the High Court also held that it was unnecessary and indeed unwise to lay down rigid and exhaustive criteria, and specifically stated that the requirement for an error of principle and a risk of substantial injustice were not cumulative. Of the same mind in this latter regard was the Victorian Full Court in Niemann, where their Honours pointed out that if the appellate court were expected to say in all cases that the decision below was clearly wrong and that substantial injustice would follow if it went undisturbed, "leave would never be granted by the primary judge" ([1978] VR at 441). The Full Court considered that the use of the word "wrong" in this context was itself misguided and that the requirement would be better expressed as "attended with sufficient doubt".
The Tribunal's decision was based on a consideration of all the relevant material and submissions. The Tribunal considered the application and gave rational reasons for refusing it. The hearing went ahead and ZAH's case was put forward on her behalf by a lawyer. The decision to refuse the adjournment was not attended by sufficient doubt as to warrant granting leave to appeal from it.

Appeal from July 2015 guardianship order

ZAH has appealed only on questions of law. As Gummow J said in a similar legislative context in TNT Skypak International (Aust) Pty Limited v Commissioner of Taxation (Cth) at 178: "[t]he existence of a question of law is ... not merely a qualifying condition to ground the appeal, but also the subject matter of the appeal itself."
The questions of law are articulated in the Amended Grounds of appeal provided to the Tribunal on 6 October 2016 and in the written outline of submissions. The grounds of appeal are, in fact, the orders that ZAH seeks. The real grounds are listed under the "particulars" for each ground. Given our previous findings, we will only set out the "particulars" relating to Ground 7 because they are the only grounds relating to the guardianship order on 20 July 2015. Those grounds are: 1. that the Tribunal erred in law in failing to make findings of fact first with reference to the definition of guardianship order in section 3 of the Guardianship Act, and what section 14 of that act requires in so making an order of this nature, and by so failing, lacked the jurisdiction to make the order of 20 July 2015; 2. that the Tribunal erred in law because it failed when conducting a review under s 25(2) of the Guardianship Act to exercise its jurisdiction to establish findings of fact which it was required to do so under s 3(2); 3. that the Tribunal in failing to establish the findings of fact consequently could not make and/or confirm the findings of fact affecting ZAK as if it were a fresh enquiry into ZAK as being the person under the Act in need of a Guardian, made an error of law; 4. that in the alternative to (2) and (3) above, the Tribunal failed or failed at all to make or confirm previous findings in such a manner in order to be satisfied that ZAK remains somebody with a disability within s 3(2) of the Guardianship Act, and thus made an error in law; 5. that the Tribunal when conducting a review under s 25(2)(a) of the Guardianship Act must make or confirm findings of fact referred to in (2) above, before proceeding to vary, suspend, revoke or confirm the order, and in failing to do so made an error in law; 6. that the Tribunal failed to take into account relevant considerations with reference to the Appellant's allegations against the applicants ZAI and ZAJ of financial impropriety and ought to have assessed this evidence in a properly reasoned manner making the reasons for decision unbiased, and with reference to the failure of the respondents, when providing this opportunity, to show evidence to the contrary of these allegations, and therefore erred in law; 7. that the Tribunal failed in conducting a review and in exercise of its discretion, to take into account relevant considerations under s 17 of the Guardianship Act of what the requirements for appointment of a person are to be a guardian, and ought to have gone much further in its enquiry as to the suitability of the applicants, ZAI and ZAJ, as guardians given that the appointment has onerous and grave obligations by reason of self-determination rights of the individual, and in so doing erred in law; 8. that the Tribunal misdirected itself in making its decision of 20 July 2015 'by referring to a disability which prevents her from being able to make lifelong decisions' and thereby in direct contradiction to the plain and unambiguous words of the statute in s 3(2)(a) to (d), and therefore erred in law; 9. that the Tribunal erred by not taking into account relevant considerations of which it was required to do within s 4 of the Guardianship Act, of the advantages of ZAK to be accommodated near her home environment keeping her in touch with her friends, her Ukrainian church, friends and community being her cultural-linguistic community, her friends and the opportunity for those friends to visit her, whilst not taking into account the views of ZAH who cared for her for 8 years, and was an error in law in that the Reasons for Decision did not have proper regard to the requirements of s 4 of the Guardianship Act.

Finding that ZAK was a "person in need of a guardian"

We understand grounds 1-5 to relate to the threshold issue when making a guardianship order, namely whether the Tribunal is satisfied that the person is "a person in need of a guardian". Section 14(1) states that; 14 Tribunal may make guardianship orders (1) If, after conducting a hearing into any application made to it for a guardianship order in respect of a person, the Tribunal is satisfied that the person is a person in need of a guardian, it may make a guardianship order in respect of the person.
Determining whether a person is a "person in need of a guardian" is the first step in the process of deciding whether to make a guardianship order: IF v IG & Ors [2004] NSWADTAP 3 (13 February 2004) at [24].
On 20 July 2015, the Tribunal was conducting a review of the existing guardianship order at the request of ZAH as well as an early statutory review. The Guardianship Division concluded at p 5 of the decision, that: When the previous order was made, the Tribunal found that ZAK was a "person in need of a guardian" for whom an order could be made. There is no new evidence before the Tribunal which would cause it to alter its opinion in relation to this issue. The Tribunal is satisfied that ZAK remains a person for whom a guardianship order could be made.
Contrary to ZAH's assertion, the Tribunal made a finding of fact that ZAK remains a person for whom a guardianship order could be made. There was no failure to make a finding of fact nor can it be said that the Tribunal did not exercise its jurisdiction to establish findings of fact. No error of law has been identified.
We apprehend that ZAH may have intended to submit that the Tribunal did not embark on its own investigation of whether ZAK was "a person in need of a guardian". Instead it noted that the parties had not provided any new evidence on that point since the original guardianship order had been made. But that ground was not expressed in those terms and nor was it argued in that way at the hearing. No authority was put forward in support of that view. In the absence of any proper articulation of a question of law these grounds of appeal have not been made out.

Grounds 6 and 7 - relevant considerations grounds

Grounds 6 and 7 purport to be 'relevant considerations' grounds. It is an error of law for a decision maker, when exercising a discretion, to fail to take into account some relevant consideration: House v The King [1936] HCA 40; (1936) 55 CLR 499 at 505-506. It is not an error of law for a decision maker to fail to take into account a relevant consideration unless it is bound to take that consideration into account: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24
Our understanding is that the relevant considerations that the Tribunal should have taken into account were ZAH's allegations of financial impropriety against ZAI and ZAJ. Those allegations were pressed by ZAH in the 20 July 2015 hearing and the Tribunal summarised them in the reasons. The Tribunal concluded that there was insufficient evidence to make a finding of financial impropriety but nevertheless, "in order to ensure that there can be no suggestion that decisions about ZAK's accommodation are predicated on the prospect of financial gain for anyone other than ZAK, … the Tribunal found that the Public Guardian should be appointed to make decisions about accommodation instead of the current guardians".
It is apparent from the Tribunal's reasoning and conclusion that it not only took into account the allegations of financial impropriety, it also made a decision to ensure that ZAK would not be exploited. This ground of appeal has not been made out.

Ground 8 - substitution of statutory test for "person who has a disability"

A question the Tribunal posed for itself in a heading was: Is ZAK someone for whom the Tribunal could make an order because she continues to have a disability, which prevents her from being able to make important life decisions?"
Contrary to ZAH's submission, the Tribunal did not refer to 'a disability which prevents her from being able to make lifelong decisions'. Nevertheless we understand this ground of appeal to be that the way the Tribunal characterised the test in the heading does not reflect the statutory test in s 3(2).
The term "a person in need of a guardian" is defined in s 3 of the Guardianship Act to mean "a person who, because of a disability, is totally or partially incapable of managing his or her person". A "person who has a disability" is defined in s 3(2): In this Act, a reference to a person who has a disability is a reference to a person: (a) who is intellectually, physically, psychologically or sensorily disabled, (b) who is of advanced age, (c) who is a mentally ill person within the meaning of Chapter 3 of the Mental Health Act 1990, or (d) who is otherwise disabled, and who, by virtue of that fact, is restricted in one or more major life activities to such an extent that he or she requires supervision or social habilitation.
We assume that ZAH's argument is that the Tribunal should have asked itself whether ZAK was "restricted in one or more major life activities to such an extent that he or she requires supervision or social habilitation".
In P v NSW Trustee and Guardian [2015] NSWSC 579 (18 May 2015) at [302] the Supreme Court discussed the meaning of the word "habilitation": 302.The word "habilitation" found in section 3(2) is not a word commonly used, unlike its derivative "rehabilitation". Both have Latin roots. The prefix "re" in the word "rehabilitation" means "again, anew". The noun habilitas means "aptitude, ability". The verb habilitare means "to make fit". The adjective habilis means "easily handled, manageable, handy, suitable, fit, proper, apt, nimble, swift". 303.The expression "social habilitation" (in the context of references to "disability", "restricted", "major life activities" and the word "requires") may be taken to refer to a need for services to help a person to be, or become, able to function normally in community with others.
While the Tribunal paraphrased the test in the heading, it quoted the full provision in the body of the decision. Ultimately the Tribunal was "satisfied that ZAK remains a person for whom a guardianship order could be made". That finding reflects the terms of the legislation. The Tribunal did not substitute the statutory test for a different test. It merely used a short-hand expression in the heading. That is not an error of law.

Ground 9

ZAH submitted that when exercising discretion under s 14 of the Guardianship Act the Tribunal failed to take into account "the importance of preserving family relationships" and "the importance of preserving the person's particular cultural and linguistic environments".
If the Tribunal is satisfied that a person is "a person in need of a guardian" it may exercise the discretion in s 14(2) to make, or not make, a guardianship order: (2) In considering whether or not to make a guardianship order in respect of a person, the Tribunal shall have regard to: (a) the views (if any) of: (i) the person, and (ii) the person's spouse, if any, if the relationship between the person and the spouse is close and continuing, and (iii) the person, if any, who has care of the person, (b) the importance of preserving the person's existing family relationships, (c) the importance of preserving the person's particular cultural and linguistic environments, and (d) the practicability of services being provided to the person without the need for the making of such an order.
These are considerations that the Tribunal is bound to take into account: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24.
Our understanding of ZAH's submission is that the Tribunal did not give any consideration or sufficient consideration to the advantages for ZAK of being accommodated close to where she had been living with ZAH. Accommodation in that vicinity would have allowed her to keep in touch with her friends in the Ukrainian speaking people and organisations.
But the s 14(2) considerations are compulsory in relation to the decision as to whether or not to make (or in the case of a review, to make a further) guardianship order . The Tribunal does not have jurisdiction to determine where a person should live. That is a matter for the guardian who has the accommodation function. It follows that the Tribunal Panel cannot have made an error of law by failing to take into account the importance of preserving the person's particular cultural and linguistic environments in deciding whether or not to renew the guardianship order.

Other grounds

We deal briefly with other grounds which, though not set out in the Amended Grounds of Appeal, were raised during the hearing.
The first of these relates to the weight the Tribunal gave to particular evidence including the fact that ZAH had been ZAK's carer for 8 years. Giving insufficient weight to evidence is not an error of law. To constitute a legal error a decision maker must, for example, make a decision which has "no basis in the evidentiary material or which [is] contrary to the overwhelming weight of that material": Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [23] - [24]. Nothing ZAH put to the Appeal Panel brings this ground of appeal within that category. As no error has been identified, these grounds of appeal must fail.
The second "other ground" was that the interpreter was biased. At the hearing in July 2015 ZAH objected to the Ukraine interpreter, because her style of translation was biased against her. After deliberating for a short time, the Guardianship Division arranged for a different Ukraine interpreter to interpret the proceedings by telephone.
Following the adjournment the Tribunal made the following statement: The Tribunal has considered the points you have raised, Mr Penhall and I will deal with them each in turn. In relation to the interpreter we have been able to arrange a new interpreter by telephone so we have Madam Interpreter on the telephone now.
ZAH continues to maintain that the first interpreter was biased and that this affected the hearing. We have assumed that the question of law is that the Tribunal breached procedural fairness by not re-commencing the hearing with the new interpreter. In circumstances where ZAH has not identified, much less established, any instances of biased interpreting, the Tribunal has not breached procedural fairness.
The third 'other ground' is that the Tribunal erred by failing to take into account ZAK's views as required by s 14 of the Guardianship Act. The Tribunal recorded in its reasons that ZAK told the Tribunal: "I am with my husband. I live with him nicely and I don't' want to move." The Tribunal sought and took into account ZAK's views. There is no error of law.

Costs

Mr Beazley, on behalf of ZAI and ZAJ applied for ZAK's estate to pay their costs. Mr Beazley clarified that he was not applying for costs against ZAH's solicitors, but rather against ZAH herself, but that those costs should be paid from ZAK's estate. The basis for that submission was that ZAH would be unable to pay the costs because of her financial situation.
The general rule is that each party pays their costs: NCAT Act, s 60(1). The Appeal Panel may only award costs if it is satisfied that there are 'special circumstances' warranting an award of costs; NCAT Act, s 60(1)(2). If costs are to be awarded, the Tribunal may determine "by whom and the extent costs are to be paid": NCAT Act s 60(4)(a).
The first issue is whether there are special circumstances warranting an award of costs in favour of ZAI and ZAJ. If there are, and the Appeal Panel exercises its discretion to award costs, the second issue is who should pay those costs and to what extent.
Mr Beazley made the application on behalf of ZAI and ZAJ at the conclusion of the hearing. He was not aware of the outcome at that stage but as this is not a jurisdiction where costs follow the event, we invited him to identify the 'special circumstances' that would justify an order for costs.
The special circumstances were said to be that ZAI and ZAJ are currently ZAK's guardians. As statutory parties to the guardianship application, and parties on appeal, they had no choice but to appear in the proceedings. They were also given leave to be legally represented and have incurred considerable costs.
It is relatively common for a person's guardian to be a party to appeal proceedings and to be given leave to be legally represented. These matters do not constitute 'special circumstances'. Mr Beazley has not raised any issue relating to the way the appeal was conducted or any other relevant matter which may justify a costs order. There is therefore no need to address the issue of who should pay the costs.

Orders

The Appellant's application for an adjournment of the hearing is refused.
Leave is refused for the Appellant to appeal from the decision made on 20 July 2015 to refuse an application for adjournment.
The Appellant's application to extend time to lodge appeals from each of the following decisions is refused: a. the financial management order made on 22 December 2014; b. the guardianship order made on 22 December 2014; c. all orders made on 19 January 2015.
The appeal from the guardianship order made on 20 July 2015 is dismissed.
ZAJ and ZAI's application for costs 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: 10 November 2016

Trustee and Guardian Act 2009(NSW)

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