ZAW v ZAX & ZAY & ZAZ & New South Wales Trustee and Guardian

NCAT Appeal Panel|2016-04-08

Introduction

Ms ZAW has appealed against a decision of the Guardianship Division of the Tribunal made on 15 September 2015. The Tribunal dismissed an application by Ms ZAW that she replace the NSW Trustee and Guardian as her mother's financial manager.
In accordance with s 65 of the Civil and Administrative Tribunal Act 2014 (NSW) the names of the parties to the guardianship proceedings and this appeal will be anonymised.
For convenience, in these reasons we will refer to Ms ZAW as "the appellant", Ms ZAX as the appellant's mother, and Ms ZAY and Ms ZAZ as the "second and third respondents". They are the appellant's mother's nieces. We will refer to the fourth named respondent, the NSW Trustee and Guardian as "the NSW Trustee".
The appellant's mother, who was the subject of the proceedings in the Guardianship Division of the Tribunal, is the sole registered proprietor of an unencumbered home in the south-western suburbs of Sydney. We will refer to this property as "the home". The second and third respondents sought a professional financial management company to be appointed as the appellant mother's financial manager. We will refer to this entity as the "company" and its director, who appeared at the hearing, as "the director".
The appellant filed her Notice of Appeal on 13 November 2015. The appeal was listed for hearing on 8 April 2016. The Appeal Registry received telephone advice from the second and third respondents on the morning of the hearing to the effect that they were unable to appear due to illness.
As will shortly be more fully explained, the appellant's first and principal ground of appeal is that the Tribunal failed to afford her procedural fairness. However, notwithstanding a direction had been made by Mr S Westgarth, Deputy President, on 19 January 2016 that the sound recording of the transcript of the hearing at first instance should be lodged with the Tribunal "if what happened at the hearing is being relied on", the appellant had not done so prior to the appeal hearing. Accordingly, we adjourned the appeal and made directions for lodging and service of the CD of the hearing together with submissions and documents that had been before the Tribunal on the second and third respondents and the NSW Trustee.

The grounds of appeal

The appellant, who is self-represented, has not drafted grounds of appeal, but rather has annexed a document to her Notice of Appeal. That document contains background material, material under the heading "Procedural Fairness" and further sub-headings of quotes from the reasons for decision of the Tribunal. The quotes are the submissions made by the Separate Representative for the appellant's mother, the Tribunal's conclusion that the appellant would, if appointed financial manager, act primarily in accordance with her mother's wishes and not in her best interests, and that it was not persuaded that the appellant "had sufficient knowledge of or experience in relevant financial issues in order to make an objective decision on key issues involved in the management of her mother's affairs, most particularly whether [the home] should be leased and not sold".
In discussion with the appellant we assisted her to define her grounds of appeal. We did so in accordance with the principles espoused by the High Court in Neill v Not [1994] HCA 23, 121 ALR 148, 68 ALJR 506. The grounds, as identified with the appellant, may be summarised as follows: 1. The appellant was denied procedural fairness: 1. Particulars 1. The second and third respondents failed to comply with directions of the Tribunal to lodge any documents on which they relied within 10 days from 26 June 2015 but did not lodge documents until 10 September 2015. 2. The second and third respondent's failure to comply with the Tribunal's order of 26 June 2015 deprived the appellant of sufficient time to properly respond to their applications. 3. The second and third respondent's failure to comply with the Tribunal's order deprived the appellant's mother the opportunity to have the documents translated to her in the Greek language. 4. The appellant had insufficient notice that the Tribunal would hear the second and third respondent's applications at the hearing. 5. That the hearing of the second and third respondent's application to review the guardianship order meant the Tribunal had insufficient time to properly consider the applications to vary the appointment of the Financial Manager. 6. The appellant was not afforded sufficient time to make submissions on her written material. 7. The Tribunal did not have before it three documents lodged by the appellant namely document No 637204 - submissions; document No 637203 - an email; document 625274 - an email; document No. 621438 and 621439 - an email and by not reading these documents the appellant was prejudiced in the presentation of her case. 8. The Tribunal provided copies of the documents to a non-party, the director. 9. That the Tribunal considered an application to appoint an independent financial management company without joining its director as a party to the proceedings. 1. The Tribunal failed to give sufficient weight to relevant matters and/or reached a conclusion not available on the evidence. 1. Particulars 1. The Tribunal failed to give sufficient weight to the appellant's mother's cultural background and traditions. 2. The Tribunal failed to give sufficient weight to the appellant's financial experience and expertise, or 3. the conclusion that the appellant lacked the requisite financial expertise to objectively manage her mother's financial affairs was not available on the evidence before the Tribunal.

Background

The appellant's mother is an 87 year old woman of Greek background. She is presently a permanent resident of a nursing home located near the appellant's home. At the date of the hearing before the Tribunal she was residing in a nursing home at Marrickville. There was no dispute that the appellant's mother suffers cognitive impairment, hearing and sight difficulties, and has other medical conditions. She requires high level care. Nor was there any dispute before the Tribunal that she needed a guardian and a financial manager.
The appellant's mother is a widow, her husband having died over a decade ago. She has two children, the appellant and a son. Her son did not participate in the proceedings before the Tribunal. His whereabouts are unknown. The appellant's mother has a frail elderly sister, and a brother. She has two nieces, the second and third respondents.
For the period between 2012 and 2015 the appellant's mother resided for various periods with her sister and the second and third respondents. The appellant asserts she was precluded from visiting her mother during this period. There was, and remains, a high level of conflict between the second and third respondents and the appellant.
There have been a number of applications to the Guardianship Division of the Tribunal. The present proceedings commenced in April 2015 when the appellant, who at that stage had been appointed as her mother's guardian, brought an application seeking that she be appointed to replace the NSW Trustee as her mother's financial manager.
The appellant's application came before the Tribunal on 26 June 2015, and was adjourned on the application of the second and third respondents. Directions were made for the second and third respondents to lodge any applications and material on which they sought to rely within 10 days. Material was filed by the director on behalf of the respondents but the second and third respondents did not otherwise comply with the direction.
On 3 August 2015 a differently constituted Tribunal adjourned proceedings then before it for six weeks to enable a separate representative to be appointed for the appellant's mother and "to allow late documents to be provided to all parties and to allow for [the appellant's mother] to participate in the hearing". That Tribunal noted: 1. Significant differences between the appellant and the second and third respondents about the appellant's mother's care and management of her financial affairs. 2. That the appellant's mother was said to have executed an Enduring Power of Attorney in 1998 in favour of the second respondent. 3. On 21 September 2012 the appellant's mother was said to have executed another Enduring Power of Attorney appointing the second and third respondents jointly and severally. On the same day the appellant's mother executed a Deed of Enduring Guardianship appointing the second and third respondents as her guardians. 4. A guardianship order was made in respect of the appellant's mother on 17 December 2012. The Public Guardian was appointed as her guardian. 5. On 17 December 2012 an interim financial management order was made. The NSW Trustee was appointed as the appellant's mother's financial manager. A final financial management order was made on 5 March 2013 again appointing the NSW Trustee as financial manager. 6. On 24 March 2015 the appellant was appointed as her mother's guardian with functions of accommodation, healthcare, and services and authority to give any necessary medical and dental consents. 7. On 10 April 2015 the appellant lodged an application to review the appointment of the financial manager in which application she sought to be appointed to that role in lieu of the NSW Trustee. 8. On 26 June 2015 the Tribunal adjourned the proceedings for four weeks and made directions about the lodging of documents
It is not in dispute that on 26 June 2015 the Tribunal received an Application for Review of a Revocation of an Enduring Power of Attorney from the second and third respondents. However, as agreed by the second and third respondents at the hearing on 15 September 2015, that application, which had been filed in error, was dismissed there never having been a revocation of a power of attorney by the appellant's mother. The second and third respondents also lodged an application to review or revoke a financial management order on 29 July 2015.
Prior to the filing of the latter application, documentation was lodged with the Tribunal by the financial management company's director. The director lodged further material on 25 August 2015 and 28 August 2015. This material was relied on by the second and third respondents at the hearing.
On Friday 11 September 2015 the appellant received from the Tribunal the following applications filed by the second and third respondents on 10 September 2015: 1. An application for Request to Review a Guardianship Order by the second and third respondents. 2. An application to review or revoke a financial management order by the second and third respondents in which application they proposed the appointment of the director as the appellant's mother's financial manager.
The hearing of all applications took place on Tuesday 15 September 2015.

Internal appeal provisions and relevant legal principles

Schedule 6 Part 5 Cl 12 of the Civil and Administrative Tribunal Act 2014 (NSW) enables an appeal to be made against a decision of the Guardianship Division of the Tribunal by way of an internal appeal to the Appeal Panel or to the Supreme Court of NSW. If an appeal is made to the Appeal Panel no appeal may be made against the same decision to the Supreme Court. Similarly, if an appeal is made to the Supreme Court, unless withdrawn with the approval of that Court to enable an internal appeal to be determined, no appeal against the decision can be made to the Appeal Panel (Cl (3) and (4)).
Section 80 of the Civil and Administrative Tribunal Act deals with the making of an internal appeal. It provides as follows: (1) An appeal against an internally appealable decision may be made to an Appeal Panel by a party to the proceedings in which the decision is made. Internal appeals are required to be heard by the Tribunal constituted as an Appeal Panel. See section 27 (1). (2) Any internal appeal may be made: (a) in the case of an interlocutory decision of the Tribunal at first instance--with the leave of the Appeal Panel, and (b) in the case of any other kind of decision (including an ancillary decision) of the Tribunal at first instance--as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds. (3) The Appeal Panel may: (a) decide to deal with the internal appeal by way of a new hearing if it considers that the grounds for the appeal warrant a new hearing, and (b) permit such fresh evidence, or evidence in addition to or in substitution for the evidence received by the Tribunal at first instance, to be given in the new hearing as it considers appropriate in the circumstances.
The Appeal Panel's powers in determining the appeal are found in s 81 of the Civil and Administrative Tribunal Act. It provides as follows: (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 nature of an appeal under s 80 is an appeal on "a question of law". The scope of that phrase is comprehensively reviewed by Lindsay J in C v W [2015] NSWCA 1774. His Honour refers at [27] with reference to authority to the circumstance where an error of law may be treated as synonymous with an appeal on a question of law. At [28] his Honour notes however that the two concepts are "conceptually distinct; but demonstration that a decision is affected by an error of law is sufficient to sustain an appeal on a question of law". At [34] his Honour explains: The nature of a statutory appeal depends critically on the language of the particular statute governing the appeal: Kostas v HIA Insurance Services Pty Limited (2010) 241 CLR 390 at 418[89]. The nature and breadth of the provisions of the Civil and Administrative Tribunal Act governing the present appeal (including sections 5(2), 34 and 53(3)-(4) and Schedule 6, clauses 12 and 14), in practice are likely to render a sharp distinction between the concepts of "a question of law" and "an error of law" less significant than might otherwise be the case.
His Honour identifies three interrelated "gateways" an appellant may seek to access to challenge a decision of the Tribunal. In summary, an appellant must demonstrate that: 1. Absent a grant of leave, the appeal is an appeal on a question of law; 2. If leave is to be granted for a ground, other than on a question of law, to generally satisfy the appellate court or tribunal that there is a question of principle or policy or a manifest error in the decision which merits a grant of leave. 3. Having regard to the broad discretion to make or decline to make a financial management order (or we would say to review the appointment of a financial manager) error of principle must be established.
His Honour cited with approval the decision of the Appeal Panel in Prendergast v Western Murray Irrigation Limited [2014] NSWCATAP 69 which decision identifies matters that may constitute a question of law. Relevantly for the purpose of this appeal is the determination that a denial of procedural fairness is a question of law. Further, a question of law may arise where there is no evidence to support a finding of fact. In respect of this question of law the Appeal Panel cited a decision involved with principles of administrative law namely Australian Broadcasting Tribunal v Bond [1990] HCA33; (1990) 170 CLR 321.
Lindsay J at [51] explained the duties of a Court (and we would say of an Appeal Panel) hearing an appeal from the Guardianship Division of the Tribunal. His Honour said: In dealing with an appeal from the Tribunal under clause 14 of Schedule 6, the Court must remain mindful of the different analytical perspectives that need to be taken of each decision under appeal, mindful of the procedural flexibility clause 14 allows, insistent upon precision in definition of an appellant's case, and careful to ensure that the welfare and interests of a person in need of protection are afforded paramountcy at each stage of the proceedings: P v NSW Trustee and Guardian [2015] NSWSC 579 at [147]-[149], [168]-[172] and [190]-[198].
The appellant's appeal is primarily based on her assertion of a lack of procedural fairness afforded to her by the Tribunal below. The authorities on procedural fairness are well known. The relevant principles from the authorities are set out by the NSW Court of Appeal in Warkwark Mining Limited v Bulga Milbrodale Progress Asscn Inc [2014] NSWCA 105 as follows: Warkworth contended that it was denied procedural fairness in a number of respects …. It is useful, however, to first state the principles relating to procedural fairness, a concept which has application in a wide range of circumstances. As the authorities indicate, it is sometimes not difficult to determine that a particular circumstance requires procedural fairness to be accorded. The difficult question, more often, is in determining what is required in the particular circumstance to satisfy the obligation and whether those requirements have been satisfied in the given case. It is in this sense that Gleeson CJ in Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6; 214 CLR 1 commented, at [37], in respect of procedural fairness that: "Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice." Insofar as procedural fairness relates to the issues raised in the grounds of appeal, the statement of Mason J in Kioa v West [1985] HCA 81; 159 CLR 550 at 587 is of particular relevance. As his Honour stated: "... recent decisions illustrate the importance which the law attaches to the need to bring to a person's attention the critical issue or factor on which the administrative decision is likely to turn so that he may have an opportunity of dealing with it." (citations omitted) This passage was endorsed by McHugh and Gummow JJ in Ex Parte Lam, at [81]. See also SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152 at [32]. On the same question, Mark Aronson and Matthew Groves, Judicial Review of Administrative Action, 5th ed (2013) (Thomson Reuters) at 527 have said: "A fair hearing presumes that the parties to it are fully informed of, and able to respond to, the relevant issues. That is not possible if disclosure is inadequate. Inadequate disclosure can also reduce the accountability, acceptability and quality of decision-making." Whilst the preceding comments were made in reference to administrative decision-making, procedural fairness is also "an essential characteristic of judicial proceedings": RCB v The Honourable Justice Forrest [2012] HCA 47; 247 CLR 304 at [42]. However, as the High Court there observed, "its content is dependent upon the nature of the proceedings and the persons claiming its benefit". In this regard, the requirement under the Court Act, s 38(1), that proceedings in the Court's Class 1 jurisdiction are to be brought with as little formality as possible, does not abrogate the fundamental requirements of procedural fairness in those proceedings: see RTA v Peak [2007] NSWCA 66 at [15] and [150]. A failure to afford a party procedural fairness will constitute an error of law: see Clements v Independent Indigenous Advisory Committee at [8] per Gray ACJ and North J. Where the relevant failure to afford procedural fairness is a failure to consider a substantial claim that has been advanced by a party, there will also be a constructive failure to exercise jurisdiction: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 77 ALJR 1088, per Gleeson CJ at [24], Kirby J at [87] and Callinan J at [95]. Construing the legal limits of a court's powers to determine whether it has exceeded its jurisdiction in a particular case will involve, at least implicitly, a question of law within the meaning of the Court Act, s 57(1): see RTA v Peak at [15] and [141]-[151]; Kostas v HIA Insurance Services at [23]-[25] per French CJ, [69] per Hayne, Heydon, Crennan and Kiefel JJ. There will be procedural unfairness where information is used by a decision maker in a way that could not reasonably be expected by one party and that party is not given an opportunity to respond to that use: see Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22; 206 CLR 57 at [142] per McHugh J and Muin v Refugee Review Tribunal [2002] HCA 30; 190 ALR 601 at [128]-[134] per McHugh J. Another aspect of procedural fairness was argued in the present case, namely, that where a court determines a matter on a basis that was not in issue or argued in the proceedings, there will have been a denial of procedural fairness: see Stead v State Government Insurance Commission [1986] HCA 54; 161 CLR 141. This is a basic requirement of a fair trial. See also Re Minister for Immigration and Multicultural Affairs; Ex parte Miah in the context of administrative decision-making. That general principle is, however, subject to an important qualification, stated at the practical level, by asking, "Would further information possibly have made any difference [to the decision]?": Stead v State Government Insurance Commission at 145; Re Minister for Immigration and Multicultural Affairs; ex parte Applicant S154/2002 (2003) 77 ALJR 1909 at [28]. An appellate court will not order a new trial where the inevitable result would be that the same order would be made on a retrial. Or, as McHugh J observed in Muin v Refugee Review Tribunal, stating the obverse of this principle, an appellate court should not refuse relief unless it is confident that the breach could not have affected the outcome of the case. In Ucar v Nylex Industrial Products Ltd [2007] VSCA 181, Redlich JA, at [75], identified a further circumstance where relief would be refused, namely, where there is an incontrovertible fact or point of law which provides a discrete basis for the decision which cannot be affected by the procedural unfairness. The Stead v State Government Insurance Commission line of authority deals with the circumstances in which a new trial will be ordered. The same principles apply in respect of this Court's power to remit matters where an error of law has been identified on an appeal under s 57 (or, for that matter, under s 56): RTA v Damjanovic [2006] NSWCA 166 at [122]; Castle Constructions Pty Ltd v North Sydney Council [2007] NSWCA 164 at [123]. We would comment in passing that it is not necessary for the purposes of this matter to decide whether the less stringent test stated in Damjanovic & Sons Pty Ltd v Commonwealth [1968] HCA 42; 117 CLR 390 should be applied. A failure to afford procedural fairness is also a basis upon which an order in the nature of certiorari may be made under the Supreme Court Act, s 69: see Clements v Independent Indigenous Advisory Committee at [8]; Roads & Traffic Authority of New South Wales v Peak at [141]-[151]; Rana v Military Rehabilitation and Compensation Commission at [24]; Goodwin v Commissioner of Police at [19].
The principles have been applied regularly in decisions of the Appeal Panel of the Tribunal (see, for example, Kline v NSW Land and Housing Corporation [2014] NSWCATAP 41, Chan Cuong Su v Public Guardian [2014] NSWCATAP 32, Ayoub v CPT Corp Pty Ltd [2015] NSWCATAP 259, Smeaton v Valerius [2015] NSWCATAP 223).
Similarly a question of law may occur in the circumstances outlined by the High Court in House v R [1936] HCA 40; 55 CLR 499. The High Court explained: The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance.

Consideration of the grounds of appeal

It is convenient that we group some of the procedural fairness grounds together.

Procedural fairness - particulars (vii) and (viii)

We commence our consideration by dealing with the appellant's assertion in her submissions that four documents, which she lodged with the Tribunal, were not considered by the panel at the hearing, and that documents were provided to the director. These particulars can be dealt with shortly.
It is the practice in the Guardianship Division that a list of all documents lodged with the Tribunal is provided to the parties to the proceedings and the separate representative, if any, shortly prior to the hearing. That list is also provided to and relied on by the panel members to identify the material to be read by them.
Before us the appellant agreed that she had been provided with the list of documents dated 15 September 2015 produced by the registry staff. That list contained all documents relied on by the appellant, and were documents that were before the Tribunal. It was clear at the hearing before us that the appellant believed her documents had not been read by the panel because her application was dismissed, and her material was not extensively referred to in the reasons for decision. The appellant conceded before us that these particulars should not be pursued. However, we note in passing on listening to the recording of the proceedings it does not appear the documents to be relied on were confirmed with the parties. It is regrettable this did not occur, as the failure has clearly caused the appellant distress, and waste of time in pursuing this appeal point up to the appeal hearing.
There was no evidence before us to indicate the basis on which the appellant asserts the documents were provided to the director. Even if an administrative mistake did occur and the director, who was not a party to the proceedings, received the documents, this could not be said to have caused procedural unfairness to the appellant that would constitute an error of law.
We are satisfied from listening to the recording of the proceedings that during the hearing, the Presiding Member, on not less than three occasions, informed all present at the hearing that the panel had read and carefully considered all material lodged with the Tribunal.

Particulars (i) (ii) and (iii)

The appellant's position is that she was unable to properly prepare for and present her case before the Tribunal because of the late filing of the second and third respondent's late applications, and that those applications were not provided to her mother and translated into the Greek language for her.
At first blush there appears to be substance in these particulars. There is no doubt there was a failure by the second and third respondents to comply with the Tribunal's directions made 26 June 2015, and their applications were lodged four days (or two working days) prior to the hearing. The recording also makes it clear that the Presiding Member referred to the difficulties the late filing caused to the registry staff and the members, but did not avert to any prejudice or disadvantage suffered by the appellant. However, it is clear from the reasons of the differently constituted Tribunal of 3 August 2015 that the nature of the applications to be heard were competing guardianship and financial management applications. That Tribunal said: Although [the second and third respondents] were confused about the correct application to make to the Tribunal it was clear that in addition to opposing [the appellant's] appointment as a guardian, they wanted to be appointed as [the appellant's mother's] financial managers (or they wanted to manage [her] financial affairs through the enduring power of attorney which [the appellant's mother] is said to have executed on 21 September 2012. This was part of the reason they had approached [the director] to prepare the financial advice for the [appellant's mother] submitted to the Tribunal.
Thus, we are satisfied that the appellant, and her mother, were well aware that the appellant's appointment as guardian was the subject of challenge, and that an alternate financial manager, other than the NSW Trustee or the appellant, was proposed from 29 July 2015.
On 29 July 2015 the second and third respondents filed an Application to review revocation of an Enduring Power of Attorney. That application was based on identical grounds to those agitated in the second and third respondents' correct application, namely, the application filed on 10 September 2015 to review the appointment of the financial manager. The extensive material lodged by the director prior to the August hearing, and available to the appellant by the August hearing was the material relied on by the second and third respondents in the review of the appointment of the financial manager lodged on 10 September 2015. As the reasons from the August hearing clearly disclose, the underlying competing applications were identified, supporting material was lodged and provided to the appellant, but the correct formal applications had not been filed. This was not a case insofar as the application the subject of this appeal is concerned that involved material or issues about which the appellant had no notice. She had been provided with the material relied on by the second and third respondents by August 2015.
We are satisfied the appellant had ample notice that both her appointment as guardian and her application to be appointed financial manager were opposed. As the Presiding Member explained at the hearing the onus lay with the party asserting a change of the financial manager should occur.
We are further satisfied that these particulars are not established insofar as they relate to the appellant's mother. First, her views about both applications were cogently and carefully expressed to the Tribunal by the Separate Representative. The Tribunal was fully cognisant, and took into account that the appellant's mother opposed any appointment of the second and third respondents (or anyone associated with them), that it was her wish that her home not be sold, and that the appellant make life-style decisions for her as her guardian and manage her financial affairs.
Further, the appellant's mother participated in the hearing and with the assistance of a Greek interpreter re-iterated her views directly to the Tribunal. This is reflected in the Tribunal's reasons at page 6 and again at page 16 of the reasons.
In summary, we are not satisfied that particulars (i), (ii) and (iii) are established.

Particular (iv)

The nub of this particular is that the appellant was not aware that the Tribunal would hear all the applications, rather she anticipated that the Tribunal would only hear her application for financial management.
The recording of the proceedings discloses that, at the commencement of the hearing, the Presiding Member, clearly articulated the five applications before the Tribunal and sought the second and third respondents consent to dismiss their application for review of revocation of an enduring power of attorney. They agreed to this course. Later during the hearing the second and third respondent consented to the withdrawal of their application for revocation of the financial management order.
Neither at the commencement of the hearing, nor at the conclusion of the hearing insofar as it related to guardianship, did the appellant object to the hearing of all applications that day, or her application to review the appointment of the financial manager then proceeding. At no stage did she seek an adjournment, or indicate to the Tribunal that she could not address or meet the second and third respondent's financial applications.
We accept a litigant in person may have a natural reticence to interrupt the Presiding Member, and that it would have been good practice for the panel to raise with a party, such as the applicant, potential prejudice that may be occasioned by late filed applications and to enquire whether that party is able to proceeding with the hearing or seeks an adjournment. We are cognisant however that the appellant was well aware she could seek an adjournment as the second and third respondents had done so successfully on 26 June 2015 and again on 3 August 2015. Further, we are satisfied that the appellant is an intelligent, well educated woman and as the recording of the proceedings discloses, was well able to articulate her views, and position before the Tribunal. For these reasons, we do not find this particular is established.

Particulars (v) and (vi)

The thrust of the appellant's submissions on these particulars is that because of the time taken to hear submissions on guardianship issues, namely whether she should be replaced as her mother's guardian, there was insufficient time to properly explore all the evidence relating to the competing financial management applications, and that she was not afforded sufficient time to make her submissions.
The applications were allocated a full half day for the hearing. The recording discloses that the panel first dealt with the application to change the appellant's appointment as guardian (an application ultimately rejected by the Tribunal). During the course of that part of the hearing the Tribunal heard from the appellant's mother and heard submissions by the Separate Representative, including some submissions about the financial management of the appellant's mother's estate.
It is clear that the Presiding Member told all present that time limits would, in the interests of efficient case management, be placed on their submissions, but reminded the parties the panel had read and carefully considered all the relevant written material. The appellant, as the first applicant, was afforded the opportunity to first speak to her application to be appointed as her mother's financial manager in lieu of the NSW Trustee. She did not suggest that she had insufficient time to put anything to the panel, or that she was stopped before completing her submissions. From our review of the recording we note she spoke for approximately ten minutes.
During the appellant's submissions she highlighted her mother's views, stressed the cultural importance of a family home to persons of her mother's background, explained her concerns about the loss of income to her mother by reason of the NSW Trustee's failure to rent the home. She also explained how she had paid insurance, and asserted that the home only needed cosmetic repairs to be fit for rental.
The appellant stressed that she was looking at other accommodation options for her mother in her role as guardian and for this reason did not wish to commit to paying a bond at the Marrickville nursing home. We note that by the hearing of the appeal the appellant's mother's accommodation had been changed.
The appellant was questioned by the panel about her financial expertise and employment. She explained that she had fifteen years' experience in her employment as a human resources manager with a local health authority with responsibility for a number of major Sydney teaching public hospitals and that she had responsibility for an annual budget of approximately 1 million dollars.
The appellant made submissions that she wished to give weight to her mother's wishes not to sell the home, and she wished to explore the viability of renting the property and applying the rental to her mother's accommodation costs and outgoings. When challenged by the panel, she explained that if renting was not an option she accepted the home would have to be sold.
We note that the Tribunal also had the benefit of submissions by the Separate Representative which are accurately recorded in the reasons for decision. The Separate Representative spoke in positive terms of a conversation with an officer of the NSW Trustee, who explained the appellant was cordial and co-operative in her dealings with the NSW Trustee, and it was possible the appellant could be given an opportunity to manage her mother's affairs under the supervision of the NSW Trustee.
We accept that the Tribunal did spend time obtaining information from the NSW Trustee's representative, Ms A Atlihan, Assistant Manager and questioned her as to why no decision had been implemented since 2013 to 2015 to lease or sell the home. Ms Atlihan confirmed that the appellant's mother's income was insufficient to meet her expenses and that for some period the second and third respondents had provided personal items and medical expenses for the appellant's mother. She also explained that no decision had been made to sell the home pending the outcome of the Tribunal proceedings because of the conflicting positions of the second and third respondents who wanted the home sold, and that of others, including the appellant, who expressed a view the house should be retained.
We also accept that the Tribunal did question carefully the director as to his qualifications and experience, and by that questioning established his business relationship with the second respondent.
From listening to the recording we are not satisfied these particulars are established. First, we are satisfied the time spent by the Tribunal was fairly and carefully apportioned between guardianship and financial management issues. Further, the appellant was afforded the opportunity to speak to her material uninterrupted for a considerable period. She was again afforded an opportunity at the end of the hearing to respond to suggestions put to her by the panel that, if she was acted in her mother's best interests, rather than in accordance with her wishes, the home may well need to be sold.
We note that in her submissions to us the appellant asserted she was not able in the time available to put rental figures she had obtained to the Tribunal. The appellant's written material before the Tribunal and in particular her material received by the Tribunal on 20 July 2015 referred to the appellant's concerns about the NSW Trustee's management of her mother's affairs and stressed her mother's wish for the house to be rented, not sold. She further pointed out that she had experience having previously managed her mother's financial affairs including paying her bills. She explained that: I would utilise my mother's income by leasing my mother's property. The income from the rent including her pension would pay for her daily accommodation fee and any remaining costs. This will allow my mother's finances to be returned to a surplus position. The mother's property is her asset and will be used to sustain an income for her.
The appellant further noted in her statement: Any outstanding expenses on her property, such as Council rates and Utilities can be paid from any remaining funds in her account. If no such funds are available, I can pay these expenses including her accommodation, her health care needs and her property.
The recording discloses the Presiding Member asked the appellant to address the Tribunal about why she asserted she should be appointed in lieu of the NSW Trustee as her mother's financial manager. The appellant explained that she could manage her mother's financial affairs, that she wanted to "respect her wishes" and her proposal involved letting the home to provide sufficient funds to meet her mother's expenses. She said: I have done the figures and they can be provided at a later time if you wish.
The applicant's application had been on foot since April 2015. As the Presiding Member pointed out the appellant bore the onus of proof to establish that a change of financial manager was in her mother's best interests. The appellant had not lodged any expert or independent material to support her contention that her proposal to rent the home would provide sufficient income, after tax and leasing costs, together with her mother's pension, to pay her mother's daily nursing home fees, and repairs, maintenance and outgoings in respect of the home. We infer from the appellant's statement the figures "could be provided at a later time" that she did not have that evidence available for the hearing. Notwithstanding that situation the appellant did give oral evidence that her enquiries led her to believe the home could be rented at $600 per week, that the property only needed cosmetic repairs, and that she had made enquiries from Centrelink about her mother's pension entitlements. She also expressed her concern, as did the second and third respondents, about the NSW Trustee's fees, and losses caused to her mother by the NSW Trustee's failure to rent the property. Thus, we conclude the appellant was afforded the opportunity to put relevant evidence before the Tribunal.
We are not satisfied that particulars (v) and (vi) are established.

The Tribunal considered an application to appoint an independent financial management company without joining the director as a party

Little needs to be said about this particular. The statutory parties to an application to review of an appointment of a financial manager are set out in s3F (7) of the Guardianship Act. A person may be joined as a party to the proceedings under s 44 of the Civil and Administrative Tribunal Act. No application was made by the director on behalf of the company, or the second and third respondents to join it or him as a party to the proceedings. It was not clear from the second and third respondents' applications whether they were proposing the director as the appellant's mother's financial manager until that position was clarified by the President Member during the course of the hearing. However, it was clear that at the hearing the second and third respondents placed reliance on his expertise, set out in his material filed in July and August 2015 including his recommendation that the house be sold.
The appellant did not articulate in what manner the absence of a formal order joining the director caused procedural unfairness to her. We find no substance in this particular.

The Tribunal failed to give sufficient weight to relevant matters and gave insufficient weight to a relevant matter, and/or the Tribunal's decision was contrary to the facts

The appellant asserts that the Tribunal failed to give sufficient weight to her mother's cultural background and the importance in the Greek culture of preserving the family home.
The appellant further asserts insufficient weight was afforded to her mother's clearly expressed wishes that she be appointed as her financial manager.
The appellant stresses the fact that the Tribunal either failed to afford proper weight to her financial experience and expertise, or that they made a finding she lacked the relevant expertise to manage her mother's financial affairs and that finding was not open to them on the evidence.
The principles applicable to these asserted questions of law are ones articulated by the High Court of Australia in the oft cited passage in dealing with discretionary judgments set out in House v King. That passage is set out earlier in these reasons.
At page 18 of its reasons the Tribunal recorded: Firstly, the Tribunal gave particular weight to the clearly expressed views of [the appellant's mother], confirmed by the views of her Separate Representative, on two important issues. The first of these was whether the [house] should be sold. The second of these was [the appellant's mother's] strong view that she wished [the second and third respondents] to have nothing to do with the financial management of her affairs. In relation to the [home] itself [the appellant's mother] clearly has a strong emotional attachment to the property and does not want it [sic] to pass out of the family. It would be diametrically opposed to her views on this subject for the property to be sold.
Later in the same paragraph in its reasons the Tribunal said: Against that conclusion, on an objective basis, is the contention implicit in the Statement of Advice, to the effect that it is only through a sale of the property ….that a sufficient sum will be available to support the [appellant's mother] in a full-service aged care facility.
Significantly, the Tribunal went on to conclude: However, the Tribunal is not satisfied that that is necessarily the case. Although there is no clear leasing proposal for the property available to the Tribunal and there are, understandably, no projections have yet been carried out by the NSW Trustee, (sic) it seems quite feasible that rent from a letting of the property, particularly on a reasonably long-term basis, may well be sufficient to meet the costs of [the appellant mother's] accommodation and care needs. A further factor is that it appears that the offer of $1.35 million has been made by a developer and development of the property as opposed to the sale to someone who would use it as a residence, would appear to be most likely a course [sic] of further distress to [the appellant's mother].
The Tribunal noted that there was a paucity of evidence from the director about a comparison of income yields from the property as opposed to its sale. The Tribunal concluded, in rejecting the director, and the second and third respondents' applications, that the director's approach was influenced by the need to take early advantage of the developer's offer. The Tribunal also recorded that the director's appointment would be likely to be seen by the appellant's mother as causing the second and third respondent's to have an indirect role in her affairs.
The Tribunal's reasons disclose that the panel took into account the appellant's mother's desire for her house to be retained, and in fact did not conclude it would have to be sold. Further, we infer the Tribunal's finding that distress would be caused to the appellant's mother if the property was sold to a developer recognised her desire, because of her cultural background to retain the house in specie. That recognition was also apparent in the Tribunal's recording that the appellant's mother had a strong emotional attachment to the property and did not want it to pass out of the family. The Tribunal also clearly took cognizance of the appellant's mother's view in not appointing the director because of his association with the second and third respondents.
We accept that, at this point in the reasons, the Tribunal did not refer to the appellant's mother's wish to have the appellant manage her financial affairs. But that consideration was not overlooked by the Tribunal, who as we earlier noted recorded the appellant's mother's wishes in the reasons. While it would have been preferable for the Tribunal to say directly why it rejected the appellant's mother's views about her daughter's appointment, the rejection of that view is implicit in the Tribunal's reasoning that it would not be in the appellant's mother's best interests to do so. This was because as the Separate Representative submitted the important mitigating factor against the appellant's appointment "was that it would probably exacerbate and prolong the conflict between [the appellant] of the one part and [the second and third respondent] of the other". The Tribunal accepted the Separate Representative's primary submission being in accordance with its own findings on the evidence. Thus, no error is demonstrated in respect of the appellant's mother's wishes.
The appellant submits that the Tribunal was in error in concluding that it was not "persuaded that [the appellant] has sufficient knowledge of or experience in relevant financial issues in order to make an objective decision on key issues involved in the management of her mother's affairs, most particularly the sure [sic] whether [the home] should be leased or sold".
There is no doubt that the appellant has tertiary qualifications, sound financial experience and manages a significant budget within the NSW Health system. These attributes would appear to well equip her to manage her mother's financial affairs and would relieve her mother's estate of the costs and charges of the NSW Trustee. These facts are ones to be weighed in the balancing exercise when appointing a financial manager (see Holt v The Protective Commissioner (1993) 31 NSWLR 227). But we are not satisfied that the Tribunal made a material error of fact in rejecting the appellant's application.
It is to be remembered that a wrong finding of fact is not an error of law (see Waterford v The Commonwealth [1987] HCA 25 (1987) 163 CRL 54 per Brennan J). Rather what is required is that the error must be a material error of fact which is of sufficient substance to justify the setting aside of the exercise of discretion. This is to be contrasted with the position of a finding of fact made in the absence of probative evidence in the context of general judicial review (see Walsh v Visionsteam Pty Ltd [2004] NSWCA 104 per Barrett JA at [32]).
Here the Tribunal's role was to determine whether the appellant had satisfied the criteria in s 25U of the Guardianship Act. The exercise being undertaken, as highlighted in the note immediately after the Division Heading, is in the general law jurisdiction of the Tribunal not its administrative law jurisdiction. Section 25U relevantly states: (1) On reviewing its appointment of the manager of a protected person's estate, the Tribunal may: (a) revoke the appointment, or (b) confirm the appointment. (2) The Tribunal may also review the financial management order under which the manager was appointed, and may take any action in respect of that order that it may take on a review of such an order under Division 2. (3) If the relevant financial management order is not revoked under subsection (2), the Tribunal is to appoint another person as manager of the estate subject to the order in substitution for a person whose appointment as manager has been revoked under this section. (4) The Tribunal may revoke the appointment under review only if: (a) the person appointed seeks the revocation, or (b) the Tribunal is satisfied that it is in the best interests of the protected person that the appointment be revoked, or (c) the financial management order in respect of the estate concerned is revoked.
Thus, the task with which the Tribunal was charged was only to revoke the appointment of the NSW Trustee if it was satisfied that it was in the best interests of the appellant's mother to do so.
The relevant paragraph of the Tribunal's reasoning of which the appellant complains cannot be read in isolation. In reaching its conclusions the Tribunal found "an objective and independent observer" could not be satisfied that the appellant would be independent in the light of family disputes. The Tribunal also used the word "objective" in relation to the director's statement of advice when it noted "…on an objective basis, is the contention implicit in the Statement of Advice, to the effect that only through a sale of the property …that sufficient funds will be available to support [the appellant's mother] in a full aged care facility".
The Macquarie dictionary (online at https://www.macquariedictionary.com.au/) defines objective as 1. Free from personal feelings or prejudice, unbiased 2. … 3. Intent upon or dealing with things external to the mind rather than thoughts or feelings, as person, a book etc.
It appears to us that the crux of the Tribunal's reasoning was not that the appellant was financially incompetent or without financial experience, rather they found she would be unable to act free from personal feelings or prejudice (in the sense of feeling bound by her mother's wishes) to make a rational financial decision whether the home should be leased or sold.
We find no merit in this particular.

Summary and conclusions

The appellant has not established a lack of procedural fairness that would constitute an error of law or a question of law. In reaching this conclusion we have had regard to the approach to appeals such as this one discussed in C v W and in particular to the elucidation at [113] in that decision of the principles relevant to procedural fairness discussed by the High Court in Minister for Border Protection v WZARH [2015] HCA 40. Nor have we found that the Tribunal committed a material error of fact that vitiated its discretion in rejecting the appellant's application. Although she sought leave to appeal we found no other grounds of appeal were agitated before us nor were we satisfied that the appellant has demonstrated that the decision of the Tribunal below raised questions of principle or policy, or that there was manifest error in the decision under review such that such leave should be granted. Accordingly we find the appeal should be 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: 25 July 2016

Civil and Administrative Tribunal Act 2014(NSW)

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Decision date

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Judgment (13 paragraphs)

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Legislation Cited (2)

Cases Cited (30)