ZBR v ZBS

Appellant's Position

1. The appellant accepts that his wife should be the subject of protective orders of both types. In his view, the Public Guardian should be her sole guardian in respect of all assigned functions.
2. As will emerge, his principal concern relates to his wife's care location. While he continued to live at Avalon for a time after the hearing of 2 February 2015, he has now moved back to Culburra Beach. His wife remained at his daughter's place, and that situation applied as at the time of the Tribunal hearing in December, 2015. Importantly, his wife has now moved to a nursing home in Warriewood, which is near Avalon.
3. The appellant agrees that his wife should remain in a nursing home, but would prefer that she be moved to one near their former home at Culburra Beach. She has many friends in the region, and they would be near each other. He feels that his daughter will not allow that to occur, and it would therefore be better that the Public Guardian be responsible for decisions of that kind.

Scope of Appeal

1. An appeal may be made as of right against a final decision of the Tribunal at first instance on a 'question of law' and may, with the leave of the Appeal Panel, be extended to 'other grounds', i.e. grounds that do not raise questions of law: see Civil and Administrative Tribunal Act 2013, s 80(2)(b) (NCAT Act). We will not dwell in these reasons on the difference, in law, between a 'question of law' and 'other grounds'. For a recent exploration, see Haritos v Commissioner of Taxation [2015] FCAFC 92.
2. In approaching the task of reviewing a Tribunal decision, we agree with the view expressed by Lindsay J in A (by his tutor Brett Collins) v Mental Health Review Tribunal (No4) [2014] NSWSC 31 (A No4) at [225] (there referring to the Mental Health Review Tribunal): In reviewing Reasons for Decision published by the Tribunal the court approaches the task beneficially, fairly and not in an overzealous search for error: Minister for Immigration and Ethnic Affairs v Wu Shan Lian (1996) 185 CLR 259 at 271-272.
3. The notice of appeal is divided into six principal grounds each with several sub-grounds. The total number of sub-grounds is 16. The 'other grounds' are organised under a single principal ground with 3 sub-grounds. There is a reply from the first respondent, S. The Public Guardian, in essence, made a submitting appearance.
4. In essence the grounds of appeal, as expressed, put in issue all aspects of the reasoning of the Tribunal at first instance, and seeks to have taken into account the further developments to which we have referred.
5. In the notice of appeal, the appellant applies for the setting aside of the guardianship order, and either the making of an order in substitution appointing the Public Guardian as sole guardian in respect of the functions described, or remitting the matter for redetermination by the Tribunal. His daughter, S, opposes any variation to the existing orders.
6. The appeal hearing proceeded on 22 July 2016.
7. The appellant was represented by Ms M Fraser of counsel. The appellant was present. Ms Fraser provided the Appeal Panel with an 'appeal book' (filed 3 May 2016) containing various documents seen as relevant, including a full transcript of the hearing of 18 December 2015. The appellant's written submissions are found at tab 27.
8. The appeal book includes material in the nature of fresh evidence relating to the circumstances of Y. There has also been other material filed of that kind, in particular a letter dated 15 July 2016 from Y's treating physician, Dr Norrie, as to her present condition. The material also referred to the decision since made by the Tribunal in relation to the financial management function.
9. We were also provided with a bundle of case-law authorities seen as relevant to the grounds of appeal.
10. S appeared in person. She referred to a bundle of documents (filed 14 July 2016) that mainly contained statements from persons with a knowledge of her mother's situation, some of which predated the hearing of December 2015, and some of which post-dated the hearing. S was accompanied by her maternal uncle.
11. We were provided with a copy of the Tribunal's decision of 22 June 2016 in relation to the financial management order.
12. Mr G Smith attended on behalf of the Public Guardian.

Grounds 1 and 2

1. Ground 1, and its sub-grounds, puts in issue the absence of a separate representative for Y at the hearing on 18 December 2015. She did have a separate representative at the hearing in February 2015. The submission, as developed at hearing, was that because of the duty the Tribunal bears to have regard to the wishes of the protected person (Act, s 14(2)(a)(i)), it has, in turn, a duty to appoint a separate representative for the protected person when he or she is not able to participate in the hearing, and the only views put to the hearing as held by the protected person are not accepted. It is said that the Tribunal failed in this duty by not considering the appointment of a separate representative and by not making such an appointment.
2. Ground 2, and its sub-grounds, went to the same area of the case. The appellant referred to a written request he had made prior to the hearing for a separate representative for his wife. His request was not actioned. In his view that resulted in an unfairness to his wife, and to him, in the hearing of the case.

Grounds 1 and 2: Consideration

1. We will deal first with Ground 2.
2. On 13 November 2015 the appellant applied for review of the current orders. On 27 November 2015 the appellant made an interlocutory application (via his solicitor, Mr Penfold, of the Shoalcoast Community Legal Centre) for leave to be legally represented, as legal representation is not otherwise permitted in this class of proceedings in the Tribunal. In that application, he also included an application asking the Tribunal to appoint a separate representative for his wife.
3. The Tribunal gave notice of intention to hold a directions hearing on 3 December 2015. The Registry briefing note prepared for the Member conducting the directions hearing, dated 2 December 2015. It noted that the appellant was seeking leave to be legally represented and for other persons to be present (not named at that point). It did not refer to his request for his wife to have a separate representative. The Member granted leave for legal representation, and allowed the appellant to have four support persons in attendance. They included the family friends who later gave evidence at the hearing, referred to later in these reasons.
4. We infer from these records that his request for his wife to have a separate representative was not drawn to the Tribunal member's attention, giving rise to the Tribunal member's omission in not addressing the matter in the directions of 3 December 2015. Despite there being no records of attendances at the making of the directions, we infer that there were people in attendance, in particular the appellant or his legal representative, by virtue of the naming in the directions of the particular people who could attend as the appellant's support persons at the hearing.
5. We therefore infer that there was an opportunity at this point for the appellant or his legal representative to remind the presiding member of the issue of appointing a separate representative.
6. In any event, at the hearing on 18 December 2015, Ms Fraser of counsel appeared, instructed by Mr Penfold. There was another opportunity at this point to raise the question of the Tribunal's inaction in relation to the request for appointment of a separate representative.
7. In these circumstances, we do not think that there was any procedural unfairness to the appellant therefore in the Tribunal's failing to consider the application made 27 November 2015.
8. In any event, we doubt whether a failure by the Tribunal to consider a request from a party other than the subject person for appointment of a separate representative can, if not considered due to an administrative oversight, found an application to have the Tribunal's determination set aside for want of procedural fairness.
9. The power to appoint a separate representative is vested in the Tribunal (NCAT Act, 45(4)(c)). The present provision replaced s 58 of the Act, which was in broadly similar terms. The Tribunal's power is an 'own motion' power. It is a protective facility. In the case of the guardianship jurisdiction, it should be exercised having regard to the objects of that jurisdiction (here, as set out in s 4 of the Act).
10. We have expressed doubt as to whether an administrative failure to consider an application from a party other than the subject of the proceedings can found an objection that procedural fairness has not been accorded to the person who made the application. However, we do consider such an omission, or, a decision not to make an appointment after consideration, could found the making of a procedural fairness objection by the subject, or by another party concerned for the best interests of the subject, depending on the circumstances.
11. We will now consider Ground 1 on that basis. The submissions as they were put in writing, and as developed by Ms Fraser at hearing, argue that the Tribunal was duty-bound to look at the need to appoint a separate representative as part of its obligation to ensure that it ascertained the views of the subject person. Section 14 of the Act provides: 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. (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.
12. As noted by the Appeal Panel in BPY v BZQ [2015] NSWCATAP 33: 34. The Guardianship Division's jurisdiction is essentially protective with the focus being on the person who is the subject of an application. The role of the Tribunal is not to resolve a dispute between parties but to consider applications made in relation to the subject person. The Tribunal is under several duties when exercising its functions including a duty to give the subject person's welfare and interests paramount consideration and to protect him or her from exploitation: Guardianship Act, s 4.
13. Section 14, in effect, amplifies one of the general principles set out at s 4, i.e. It is the duty of everyone exercising functions under this Act with respect to persons who have disabilities to observe the following principles: (d) the views of such persons in relation to exercise of these functions should be taken into consideration.
14. The appellant contends that the witnesses he called were the only ones to put evidence before the Tribunal in relation to his wife's present wishes. They were uniform in indicating that she had a preference to be relocated to the Culburra Beach area to be near her old friends. He had in mind the Greenwell Gardens nursing home, rather than her present location at Warriewood. He said that the Tribunal had no other evidence of his wife's wishes. The Tribunal should therefore have appointed a separate representative to ensure that it had further information as to those wishes, as had occurred at previous hearings, in particular the one of 2 February 2015.
15. Y had no separate representative at the September and December 2014 hearings. She did have a separate representative for the 10 February 2015 hearing, Ms Nihal Danis. Ms Danis had visited Y the day before the hearing. Y did not attend the hearing. Her guardian, S, advised the Tribunal that she had thought it better for her mother to attend her day program, and expressed the opinion that her mother would be unable to appreciate the nature of the proceedings or contribute meaningfully in the hearing. The Tribunal in its written reasons for decision on that occasion canvassed the question of whether it should have made contact with Y. Ms Danis's advice was similar to that of S. Ms Danis advised the Tribunal that the degree of her cognitive impairment was such that she also did not consider that Y could meaningfully contribute or participate. The Tribunal stated that it had therefore decided not to adjourn the proceedings so that it could hear from Y.
16. The use of a separate representative in protective jurisdictions to assist the court or tribunal to reach a full understanding of the needs and wishes of the subject person has an important role.
17. In earlier times it was not uncommon for the judge in a protection matter to interview or take evidence directly from the subject person in a private way in chambers, and, if seen as conducive to that process, to do so without any legal representatives present.
18. The facility of a separate representative builds on that tradition. It has the benefit of allowing the judge to stay at arm's length in relation to the ascertainment of the subject person's needs or wishes. The separate representative will often be a lawyer but that is not essential. A separate representative may be preferred, who has special training in the ascertainment and assessment of a person's needs and wishes. In addition, the Guardianship Division has staff who prepare reports for use at hearing that will include any information obtained from the subject person in relation to their needs and wishes.
19. The objective is to undertake a form of review appropriate to a protective jurisdiction, within the confines of the relevant statute. What that process involves admits of a variety of approaches. The observations of Lindsay J about the nature of an appropriate review process in the forensic mental health patients jurisdiction can, we think, be applied, in general terms to decisions in relation to guardianship and financial management: A (No4) at [112]-[115]. The decision whether or not to appoint a separate representative is one aspect of the process.
20. The NCAT Act, as the Guardianship Act did previously, vests the power to appoint a separate representative in the Tribunal: '(4) The Tribunal may: … (c) order that a party be separately represented.'
21. Section 45(4)(c) confers a broad discretion. The Tribunal is left at large in deciding whether or not to appoint a separate representative in a particular matter.
22. The separate representative is a facility to assist the Tribunal in reaching the best decision in the circumstances. In a protective jurisdiction an argument could be made for a separate representative to be used in all cases. But the Tribunal needs, also, to ensure that it deals with cases in a timely way, and does not generate costs and administrative demands which are not justified by the case and the issues that it presents. The special representative is a facility, which, in our experience, is used sparingly by the Tribunal.
23. The ultimate goal of the proceedings is to make a decision in the best interests of the subject person. That includes, we acknowledge, a responsibility to ascertain to the extent possible his or her wishes, and then to give them adequate consideration.
24. Whether there is any unfairness arising from non-appointment of a separate representative depends, as we see it, on whether it can be demonstrated practically that the non-appointment gave rise to a 'practical injustice' to the subject person. ('Practical injustice' being the expression used by Gleeson CJ in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at 14 [38].)
25. In considering that question, the particular proceeding under notice should be examined in its wider administrative context. It is appropriate to have regard, we consider, to the administrative decision-making process to which the particular set of reasons under notice belongs. Here there were at least two sets of recent, considered reasons before the Tribunal. The decision of 18 December 2015 was not made in isolation.
26. Y did participate in the December 2014 hearing. She did not participate in the February 2015 hearing. The Tribunal did appoint a separate representative, Ms Danis. Ms Danis advised the Tribunal that Y had a deteriorating condition. The Tribunal on the present occasion had an expert report before it as to Y's circumstances.
27. The Tribunal was engaged in a special review, which by the time the hearing commenced, overlapped in time with the usual end of term review. The material before the Tribunal included the previous decisions of the Tribunal, in this instance all made in the period September 2014-February 2015. Detailed reasons were given for the decisions of 2 December 2014 (the first guardianship and financial management orders) and the decision of 10 February 2015 (responding to the appellant's application for review of those orders).
28. There was a body of material setting out the views of Y. The Tribunal had regard to those views as reported by the friends called by the appellant. It did not dismiss them out of hand. It simply considered that those views had to be set in the context of her dementia. It also had evidence that Y had been very responsive and happy with the activities and care provided in the day programs arranged by her daughter.
29. There has been no suggestion that Y's cognitive function has improved. Hers is a condition of a permanent and deteriorating kind. In its reasons for decision in relation to the hearing of 18 December 2016 the Tribunal acknowledged Y's non-participation giving a reason: Y 'did not attend or participate in the hearing due to her condition' ([18]). The Tribunal had before it a report from Dr Sushmita Hunter dated 3 June 2015, assessing Y's cognitive function. The doctor administered a range of tests, and Y scored low on most on them. She confirmed previous diagnoses of moderate to severe Alzheimer's disease with an early onset (presenile onset).
30. In the reasons now under notice, the Tribunal referred to the strong support for maintenance of the present care arrangements. The support came from Y's side of the family. Her six siblings supported the arrangements. The professional reports were positive about the adequacy of care. The appellant objected on various bases, including by reference to what he saw as the wishes of his wife. Three family friends from the Culburra Beach area gave evidence that Y had expressed to them a desire to return to Culburra Beach.
31. The Tribunal gave particular weight to her daughter's account of her mother's well-being and enjoyment of various activities. It gave weight to family members' observations.
32. The Tribunal found, having regard to the evidence as a whole that the present guardianship arrangement was working well. As to the evidence given by the three friends in support of a move to Culburra Beach, the Tribunal said: 51. The Tribunal did not doubt the evidence of [the appellant's] witnesses was genuine but was left with the concern that it did not take into account the impact of [Y's] dementia on her ability to express genuine or considered views independent of the particular circumstances in which the apparent views were expressed.
33. The Tribunal's concern was in line with the medical report provided by Dr Hunter.
34. The appeal grounds criticised the failure of the Tribunal to refer to a passage in the Public Guardian's written evidence for the hearing. The passage contained a short report on a visit by an officer to Y on 9 April 2015. Y had referred to her desire to have contact with her husband. After that, the Public Guardian (as guardian in respect of access) revised the appellant's visiting and contact arrangements. The Tribunal is not required to document every piece of evidence before it. This record of Y's desires is affected by the same difficulty that the Tribunal referred to in para [51].
35. The submission continued that if the Tribunal was not prepared to put weight on only the views of the subject of the application brought to its notice in the proceedings, 'then it should have appointed a separate representative to discover whether [Y] was able to express her view, and if so, what those views were'.
36. While ideally it would be preferable for Y to be in a care location that was easily accessible for all concerned with her welfare, including her husband (the appellant), her friends in the Culburra Beach area, her daughter and her wider family, that was not possible in the circumstances of the case. Therefore choices needed to be made which might be seen as unsatisfactory from one or other perspective.
37. In our view the Tribunal went about its task in a way that did not expose itself to any legal error in failing to seek to ascertain the wishes of the subject person. It is not obliged to appoint a separate representative in a case where the subject person does not participate directly in the hearing. There are various ways in which the views of the subject person can be ascertained. In this case there were several recent expressions of views before it, and it could reasonably infer from the evidence of Y's daughter and her siblings, that Y was likely to hold favourable views of the adequacy of the care being provided to her by her daughter.
38. Grounds 1 and 2 are rejected.

Grounds 3 and 4

1. Ground 3, and its sub-grounds, refer to alleged conflicts that existed as between the guardian's interests and the protected person's interests. The appellant contended that his daughter's conflicts of interest militated against her reappointment as guardian. The appellant referred to various items of expenditure made by their daughter in respect of her mother which, it was said, were excessive and inappropriate in the circumstances. The appellant drew support from the Tribunal's recent decision (22 June 2016) to revoke his daughter's appointment as financial manager, and replace her with the NSW Trustee.
2. His key submission was that the matters which led the Tribunal to revoke his daughter's financial management role should have been taken into account, equally, in respect of the decision as to guardianship. He criticised the splitting of the case and adjourning further consideration of the review of the financial management order. It had contributed, in his view, to the Tribunal's failure to address the conflicts of interest that he saw as now identified by the financial management review as part of the guardianship review. He argued that had the Tribunal had proper regard to those matters in its review of the guardianship order it would have made a difference to the outcome.
3. Ground 4 criticised the Tribunal for not resolving various factual disputes in its reasons for reappointing S as guardian. The appellant contended that if they had been resolved, the result would have been rulings favourable to the case put by the appellant; and that would have led to a different or better decision. The sub-grounds listed a number of matters that were raised relating to the adequacy of S's standards of care, which, it was said, the Tribunal had not addressed in its reasons. The application for leave to extend the appeal to matters that did not raise questions of law (Ground 7) had a number of similar points.

Consideration of Grounds 3 and 4

1. A court or tribunal, when making a decision founded on a discretion, must only give weight to relevant considerations and any considerations that is required to consider ('mandatory considerations'). It must not give weight to irrelevant considerations and must not disregard mandatory considerations. These are the basic requirements of the relevant law. Its weighing of the permitted considerations, in the sense explained, can only give rise to an error of law in extreme circumstances, such as an absence of logically probative evidence, a failure to make a rational decision ('irrationality') or the making a decision that is manifestly unreasonable. See further, BTK v The Public Guardian [2015] NSWCATAP 89 at [41].
2. Section 17(1) of the Act provides relevantly: (1) A person shall not be appointed as the guardian of a person under guardianship unless the Tribunal is satisfied that: (a) the personality of the proposed guardian is generally compatible with that of the person under guardianship, (b) there is no undue conflict between the interests (particularly, the financial interests) of the proposed guardian and those of the person under guardianship, and (c) the proposed guardian is both willing and able to exercise the functions conferred or imposed by the proposed guardianship order.
3. The Tribunal gave an explanation for splitting the review hearing into two stages in 18 December guardianship decision. It gave further reasons in its financial management decision of 22 June 2016.
4. While we accept that it is normally desirable for a Tribunal dealing with review of guardianship and financial management orders to consider all the material relevant to both together in the one hearing, there cannot be a fixed approach to this issue. There will be cases where it is necessary to split the two tasks, having regard to the best interests of the subject person.
5. It was clearly desirable in December 2015 to make an immediate decision on the continuation or variation of the guardianship application.
6. In our view, the Tribunal gave a sound explanation in its December decision (to do with the need for an assessment of the expenditures made by S and her accounting methods) which warranted a delay in the disposal of its review of the financial management order.
7. Its July 2016 reasons referred to the deep conflict that existed between the appellant and his daughter. The Tribunal accepted the NSW Trustee's criticism of S for having exceeded her expenditure authority in relation to some of her financial management decisions in relation to the application of her mother's cash reserve. We note also that it accepted that S made no inappropriate use of her mother's cash reserve. It did not accept suggestions that she had acted as she did for her personal benefit, or sought to deplete the cash reserve to place pressure on the appellant to sell the house. The Tribunal also rejected criticism of the use to which a small inheritance that Y had received while in S's care, an issue revived at our hearing.
8. The Tribunal acknowledged that the point had been reached where to fund her future care needs it might become necessary to fund them through her interest in the proceeds of sale of the home at Culburra Beach. One consequence would be that the appellant would be forced to find someone else to live.
9. Not surprisingly, in our view, in these circumstances the Tribunal's ultimate decision was to appoint NSW Trustee as financial manager in substitution for S.
10. That there will often be some conflicts of interest as between family members and the person in need of protection is a usual aspect of proceedings of this kind. So much is recognised by the Act at s 17(1)(b) when it speaks of 'undue' conflict. In IR v AR [2015] NSWSC 1187 at [35] Lindsay J said: A 'conflict of interest' is 'undue' within the meaning of s 17(1)(b) it is reasonably likely, to an unacceptable degree, to impede the guardian's performance of the duties of guardian in the particular case.
11. We are not satisfied that any error of law is revealed by its decision in December 2016 to adjourn its review of the financial management order, with the result that it did not look closely at criticisms relating to S's financial management as part of the guardianship decision. In our view, the Tribunal was well aware from the history of the proceedings as well as the matters it canvassed in its reasons that there were some arguable conflicts of interest. It referred to a number of them in its reasons.
12. Had the Tribunal ultimately found that S had misconducted herself in the performance of her responsibilities as financial manager in a way that put in issue her character and integrity, there may have been some strength to the challenge made by Ground 3. Conduct that goes to character and integrity bears on suitability for either role. But that did not prove to be the case.
13. Ground 4 is concerned with the way the Tribunal dealt with matters to which it did refer in relation to S's suitability to continue as guardian. The appellant criticised its omission to consider some matters raised by the appellant going to the quality of the care provided during 2015. The appellant raised a number of matters. Some of them are referred to in the Tribunal's decision: for example, the nature of the accommodation S was providing within her home to her mother (said to be a sleeping place under a verandah), the proximity of the accommodation to busy roads, Y's tendency to wander, the number of other members of S's family who lived there, and the business activities carried on there by her S (a child care business). The appellant contended that the Tribunal should have made specific findings on each of the matters raised. Instead it simply alluded to the criticisms without resolving them.
14. The submission is that had it made findings of the kind the appellant sought on these issues, it could not properly have gone on to find S suitable to be reappointed.
15. The specific matters raised, all to do with the quality of the accommodation in S's home, are no longer relevant, as Y has, as previously noted, now moved to the nursing home at Warriewood. The appellant's position, as we understood it, is that nevertheless the way his daughter managed her mother's care while she was with her at her home bears on her overall suitability to retain her appointment as a guardian.
16. It is not necessary in protective proceedings of the present kind for the Tribunal to resolve each and every contest of fact between the parties interested in the care of the subject person. This is not a species of adversarial civil litigation, where findings may be required on any factual dispute materially relevant to the cause of action. To similar effect, Young J in Church v Price [2000] NSWSC 754 at [12]: 'The only object of the proceedings, at least the only valid object, is to protect a person in need of protection.'
17. It is plain from the administrative history that was before the Tribunal at the time it made the decision under appeal that there were deep differences between the appellant and his daughter over the adequacy and quality of the care she had been providing to her mother. The Tribunal clearly favoured the evidence given by the daughter as to the adequacy of her accommodation, the program of day activities she had organised for her mother, and took action of the strong support she had received from a number of members of Y's wider family. The Tribunal was not obliged to resolve the various 'conflicts in the evidence' to which Ground 4 refers, in the mechanical way suggested by Ground 4. It did allude to those matters in its reasons, and it clearly set out the primary considerations which had influenced it to maintain the status quo in respect of guardianship. There was no error of law.
18. Grounds 3 and 4 are rejected.

Ground 5

1. Ground 5 raised the question of whether the Tribunal failed to evaluate the alternative proposed guardians. At hearing this Ground was not strongly pressed. We will deal with it briefly.

Ground 5: Consideration

1. This was not a case where alternative private guardians were being proposed. It would be necessary to make a comparative evaluation if there were two or more options as to a private guardian. But here there was only one civilian option under notice -S. Section 15(3) of the Act provides: (3) A continuing guardianship order appointing the Public Guardian as the guardian of a person under guardianship shall not be made in circumstances in which such an order can be made appointing some other person as the guardian of the person.
2. If she was not suitable, then it followed as a matter of necessity that the Public Guardian would have been appointed. To similar effect, see Windeyer J in W v G [2003] NSWLR 220 at [25]. In our view, this ground of appeal is misconceived.

Ground 6

1. Ground 6 is ancillary to Ground 4, in that it asks whether the Tribunal's reasons disclosed a logical and adequate reasoning process. The Ground also refers to Ground 7, the ground seeking leave to extend the appeal to matters other than questions of law.

Ground 6: Consideration

1. It is well established law that the Tribunal is obliged to give adequate reasons for its decisions, and a failure to do so constitutes an error of law. The law takes a pragmatic approach to what constitutes an adequate set of reasons, and gives weight to such factors as the nature of the jurisdiction and the docket pressures under which first instance, trial jurisdictions work.
2. As noted in Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 (15 May 2009) per McColl JA (Ipp JA, Bryson AJA agreeing), citations omitted: 57 The giving of adequate reasons lies at the heart of the judicial process. Failure to provide sufficient reasons promotes "a sense of grievance" and denies "both the fact and the appearance of justice having been done", thus working a miscarriage of justice: ... . 58 The extent and content of reasons will depend upon the particular case under consideration and the matters in issue: ... While a judge is not obliged to spell out every detail of the process of reasoning to a finding ... , it is essential to expose the reasons for resolving a point critical to the contest between the parties: ... . 59 The reasons must do justice to the issues posed by the parties' cases: ... . Discharge of this obligation is necessary to enable the parties to identify the basis of the judge's decision and the extent to which their arguments had been understood and accepted: ... ... [I]t is necessary that the primary judge " 'enter into' the issues canvassed and explain why one case is preferred over another"; ... .
3. For a recent discussion of the principles, see Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 esp per Basten JA at [40] ff. Basten JA noted at [48]: When an appellate court is invited to find that a trial judge provided inadequate reasons, it is important to understand the nature of the function being invoked. It is not the function of an appellate court to set standards as to the optimal, or even desirable, level of detail required to be revealed in reasons for judgment. Rather it is to determine whether the reasons provided have reached a minimum acceptable level to constitute a proper exercise of judicial power. Transparency in decision-making is an important value, but it is not cost free, and may involve separate parameters of quantity and quality.
4. These principles apply in this Tribunal: see Collins v Urban [2014] NSWCATAP 17 at [47]-[57]; see further, Sikka v Roads and Maritime Services [2013] NSWADTAP 110 at [17] ff; Mouwad v Commissioner of Police, NSW Police Force (GD) [2011] NSWADTAP 50 at [18]-[22] and Battenberg v The Union Club [2005] NSWADTAP 20 at [40]-[42.
5. We have already dealt with and dismissed the more specific objections to the reasons made by Grounds 4 and 6. Ground 7 goes to issues not seen as raising specific questions of law.
6. We will not deal Ground 6 at length. It is apparent from our reasons to date that we are satisfied that the reasons were not affected by any specific errors of law.
7. In regard to their overall adequacy, in our view they engaged with the critical issue in the proceedings - what was in the best interests of the protected person, they had appropriate regard to relevant material, and the Tribunal explained how it reached its conclusions.
8. Ground 6 is rejected.

Leave to Extend Appeal: Ground 7

1. Ground 7 rehearses ongoing issues in the relationship between the appellant and his daughter. Their existence and their nature is documented in the earlier decisions of the Tribunal and was well understood, we consider, by the Tribunal that made the decision under appeal. As the submissions properly recognised, Ground 7 did not raise any questions of law. We refuse leave for the appeal to be extended to these matters.

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: 13 September 2016