ZCI v ZCJ

Relevant legislation

1. Under s 25P of the Act, 25P Action on review 1. On reviewing a financial management order under section 25N, the Tribunal: 1. must vary, revoke or confirm the order, and 2. if it considers it appropriate to do so-may take such action with respect to the appointment of the manager of the protected person's estate as the Tribunal could take on a review of such an appointment under Division 3. 1. The Tribunal may revoke a financial management order only if: 1. the Tribunal is satisfied that the protected person is capable of managing his or her affairs, or 2. the Tribunal considers that it is in the best interests of the protected person that the order be revoked (even though the Tribunal is not satisfied that the protected person is capable of managing his or her affairs).
2. Under s 25U of the Act (contained within Division 3 of Part 3A of the Act), 25U Action on review 1. On reviewing its appointment of the manager of a protected person's estate, the Tribunal may: 1. revoke the appointment, or 2. confirm the appointment. 1. 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. 2. 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person as manager of the estate subject to the order in substitution for a person whose appointment as manager has been revoked under this section. 3. The Tribunal may revoke the appointment under review only if: 1. the person appointed seeks the revocation, or 2. the Tribunal is satisfied that it is in the best interests of the protected person that the appointment be revoked, or 3. the financial management order in respect of the estate concerned is revoked.
3. When "exercising its Division functions for the purposes of the Act in relation to persons who have disabilities", the Tribunal is under a duty to observe the principles referred to in s 4 of the Act (Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act), sch 6, cl 5(1)).
4. Under s 4, it is the duty of everyone exercising functions under the Act with respect to persons who have disabilities to observe the following principles: 1. the welfare and interests of such persons should be given paramount consideration, 2. the freedom of decision and freedom of action of such persons should be restricted as little as possible, 3. such persons should be encouraged, as far as possible, to live a normal life in the community, 4. the views of such persons in relation to the exercise of those functions should be taken into consideration, 5. the importance of preserving the family relationships and the cultural and linguistic environments of such persons should be recognised, 6. such persons should be encouraged, as far as possible, to be self-reliant in matters relating to their personal, domestic and financial affairs, 7. such persons should be protected from neglect, abuse and exploitation, 8. the community should be encouraged to apply and promote these principles.

Tribunal's decision

1. In its written reasons for decision, the Tribunal identified the issues it needed to determine in relation to the application made by the younger son for the financial management order made on 29 January 2015 to be revoked as follows (at [51]-[52]): [51] On reviewing the financial management order the Tribunal must confirm, confirm and vary or revoke the financial management order. [52] The Tribunal may revoke the financial management order only if: 1. it is satisfied that [ZCJ] is capable of managing his/her affairs; or 2. it considers that it is in the best interests of [ZCJ] that the order be revoked.
2. In relation to the question of whether ZCJ is capable of managing his or her affairs which, if answered in the affirmative, would have provided a basis for the Tribunal to exercise its discretion to revoke the financial manager order, the Tribunal addressed the evidence and submissions of the parties at [55]-[58]. The Tribunal concluded (at [59]) that the Tribunal "could not be satisfied on the evidence before it that [ZCJ] has regained capacity to manage her affairs".
3. In relation to the question whether it is in the best interests of ZCJ that the order be revoked, the Tribunal set out its discussion of the evidence and submissions at [60]-[65]. Its consideration and conclusion that it was not satisfied that it was in ZCJ's best interests to revoke the financial management order are set out as follows at [66]-[72]: [66] The Tribunal considered all of the evidence and submissions before it, and was satisfied that the factors which were relevant to the Tribunal's determination to make a financial management order in 2015 continue to be present. In particular, there remains significant family conflict which is highly unlikely to resolve. [67] In addition, the current circumstances also give rise to a continuing need for a financial management order. Aside from a small Romanian pension, all of [ZCJ's] property continues to be in Australia. [68] Revocation of the financial management order would enable [the younger son] to resume management of his mother's legal and financial affairs. In the context of a hearing which lasted over two sessions, the Tribunal considered [the younger son] to be an unimpressive witness. [The younger son] maintains that decisions about [ZCJ's] residence and property are decisions for [ZCJ] to make alone. However, this belies the reality of the situation; that is, that he has made, and is highly likely to continue to make, all significant decisions for his mother. [69] The Tribunal also finds that [the younger son] has given inconsistent evidence, for example, claiming on the one hand that [ZCJ] enjoys living in Romania and wishes to remain there, while on the other hand suggesting she may return to Australia if there are no Tribunal orders in place. The Tribunal could not rely on [the younger son's] evidence and as a result there is a lack of certainty around [ZCJ] residence, the funding of her accommodation and care, and the future plans for her estate. [70] [The younger son] proposes to exercise powers pursuant to the power of attorney executed by [ZCJ] in 2013. Notably, whilst an attorney has fiduciary duties, there is no requirement to report to, or be subject to the directions of, an external supervisory body. [71] Given [ZCJ's] current residence overseas, her advanced age and dementia diagnosis, she is vulnerable to the influence of others. The Tribunal was satisfied that [ZCJ] continues to need the protection of a financial management order. In this regard, the Tribunal notes that a financial manager is required to report on his or her management of the subject person's estate. There is an obligation to maintain records and provide regular statements of account. Mechanisms are in place to enable oversight and review of the actions of the financial manager. The Tribunal considered that this level of accountability and transparency is appropriate in the current circumstances. [72] Accordingly, the Tribunal is satisfied on all of the evidence that there continues to be a need for a financial manager for [ZCJ] and was therefore not satisfied that the order should be revoked in her best interests.
4. In its written reasons, the Tribunal also identified the issues it needed to determine in relation to conducting a review of the appointment of a financial manage as follows (at [53]-[54]): [53] The Tribunal may also review the appointment of the manager if it considers it appropriate to do so. [54] On reviewing the appointment of the manager, the Tribunal may either confirm or revoke the appointment. The Tribunal may revoke the appointment under review only if: 1. The appointed manager seeks the revocation, or 2. The Tribunal is satisfied that it is in the best interests of [ZCJ] that the appointment be revoked.
5. The written reasons noted (at [73]) that the younger son had confirmed that he wished to nominate for appointment as financial manager of his mother's estate in the event that the financial management order was not revoked and the Tribunal expressed the view (at [73]) that it "considered it appropriate in the circumstances to also conduct a review of the appointment of the financial manager". In doing so the written reasons also noted that "the evidence and submissions relied upon by the parties in relation to the review of the financial management order is also relevant to the review of the appointment of financial manager".
6. The written reasons then proceed to set out a discussion of the evidence and submissions at [74]-[85]. Its consideration and conclusion that it was not satisfied that it was in ZCJ's best interests that the appointment of the NSW Trustee and Guardian be revoked, is set out as follows at [86]-[95]: [86] In appointing a financial manager, as in making all other orders under the Guardianship Act, the Tribunal must act with the interests of the person concerned as the paramount consideration and in accordance with the other principles set out in section 4 of the Guardianship Act. [87] Section 25M of the Guardianship Act provides that, if the Tribunal makes a financial management order, it may appoint a suitable person to manage the person's estate or may commit the management of the estate to the NSW Trustee and Guardian. [88] In Holt & Anor v Protective Commissioner (1993) 31 NSWLR 227, the Court said that the dominant consideration in making orders about financial managers was the welfare of the person. The President of the Court of Appeal emphasised the Court's broad discretion in deciding who should be financial manager but also set out possible considerations as to the competing advantages of the Protective Commissioner and a family member as the manager of an estate. The NSW Trustee and Guardian now exercises the role of the Protective Commissioner. [89] On the side of the Protective Commissioner was seen to be the manifest independence of the statutory office, the advantages of a dispassionate and neutral approach in situations of family conflict and divided views as to the best interests of the person, expertise and experience in managing estates, an impeccable reputation and the security provided to an estate against loss or damage. [90] The advantages of the appointment of a family member were more economic management of smaller estates (that is, freedom from fees) and a greater familiarity with assets and liabilities in smaller estates, a greater capacity of a person with a disability to interact with the manager so as to exercise a greater influence over the broad directions of the management of the estate, love and affection for and knowledge of the protected person and concern for his or her quality of life, and particular qualities or qualifications enabling family members to act as managers. [91] The Court considered that interrelated property interests in a family situation, where a conflict of interest and duty may be "more apparent than real," should not necessarily present an absolute bar to appointment of a family member who is otherwise appropriate. However, when appointing a family member, a decision maker must be satisfied that the estate, income and capital assets, will be utilised to advance the interests and quality of life of a protected person rather than to eventually increase the assets of the family. [92] In Application by AMAM; Re SAM [2011] NSWSC 503 Hallen AsJ stated: [34] It would be unwise to attempt any definition of the matters that may legitimately be enquired into to determine whether the applicant is suitable. Each case must depend on its own circumstances. Needless to say, however, the Court must consider, at least, the proposed manager's character, honesty and ability to manage, diligently, the managed person's property in the managed person's best interests. [93] The matters or "guidelines" which a Tribunal should consider when determining who to appoint as a financial manager are discussed by Lindsay J in M v M [2013] NSWSC 1495 at [50]. [94] The Tribunal takes into account [ZCJ's] wish that her son be able to manage her affairs. However, the Tribunal does not consider [the younger son] suitable for appointment as financial manager of [ZCJ's] estate. By his own admission, prior to the appointment of the NSW Trustee and Guardian, [the younger son] was managing his mother's finances. Also by his own admission, his mother's finances were intermingled with his own. [The younger son] was unable to appreciate the relevance and importance of avoiding conflicts of interest, and was unable provide a satisfactory answer to the Tribunal's questions about how he would manage such conflicts. Moreover, the Tribunal finds that [the younger son] has failed to provide a satisfactory explanation for the expenditure of [ZCJ's] funds while he was in charge of her affairs, and his evidence in this regard was inconsistent and lacked credibility. The Tribunal was therefore not satisfied that [the younger son] was suitable to be appointed as financial manager of [ZCJ's] estate. [95] Furthermore, the family conflict that was present at the time the Tribunal made its financial management order continues to exist and is highly unlikely to resolve. Therefore, taking into account all of the evidence and submissions as well as the important section 4 principles, the Tribunal was not satisfied that it is in the best interests of [ZCJ] that the appointment of the NSW Trustee and Guardian be revoked.

Appeal framework

1. The decision under appeal in this matter is an "internally reviewable decision" (CAT Act, ss 4 and 32(4)). A party may appeal an internally reviewable decision on any question of law or with the leave of the Appeal Panel on any other ground (CAT Act, s 80(2)(b)).
2. Section 81 of the CAT Act sets out the orders that may be made on appeal: 81 Determination of internal appeals 1. In determining an internal appeal, the Appeal Panel may make such orders as it considers appropriate in light of its decision on the appeal, including (but not limited to) orders that provide for any one or more of the following: 1. the appeal to be allowed or dismissed, 2. the decision under appeal to be confirmed, affirmed or varied, 3. the decision under appeal to be quashed or set aside, 4. the decision under appeal to be quashed or set aside and for another decision to be substituted for it, 5. 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. 1. 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.

Internal appeal proceedings

1. The hearing of the appeal commenced on 27 September 2016. At the request of the appellant, who wished to seek legal advice and a copy of the transcript of the Tribunal proceedings on 30 March 2016, we adjourned the hearing.
2. The appeal hearing resumed on 27 February 2017.
3. ZCJ was represented by a guardian ad litem (GAL), Ms Linda Fisher. The GAL submitted that the appeal should be dismissed.
4. Both the younger son and the granddaughter appeared in person at the hearing. Although leave had been granted at an earlier callover date for both parties to be legally represented in the appeal proceedings, neither party was legally represented at the appeal hearing.
5. We were given a letter from ZCN, ZCJ's daughter-in-law with whom she is living in Romania, to the effect that ZCN did not wish to take part in the appeal proceedings. ZCN was a party to the review of the financial management order heard by the Tribunal below as she was regarded as the person "who had the care of" ZCJ (the Act, ss 3F(6) and 3D(1)) and was therefore also a party to the appeal (Civil and Administrative Tribunal Rules 2014 (NSW), Rule 29(b)). Accordingly, although she was a party to the appeal, we did not have any submissions from ZCN.
6. The NSW Trustee and Guardian did not take part in the appeal.

Notice of Appeal

1. In support of the appeal, the younger son filed a Notice of Appeal and an incomplete copy of the written reasons for decision of the Tribunal in relation to the orders made on 30 October 2014 when, relevantly, the Tribunal made the interim financial management order appointing the NSW Trustee and Guardian as ZCJ's financial manager and adjourned the financial management application for three months. This copy was annotated with comments made by the younger son. The written reasons relating to the 30 March 2016 decision were also provided, in part, with annotations. Other documents were also included with that material and it was unclear whether these had been in evidence before the Tribunal below.
2. Following the adjournment of the appeal hearing on 27 September 2016, the younger son also filed a transcript of the Tribunal hearing on 30 March 2016 along with a number of documents. These documents included correspondence signed by ZCJ in 2014 and 2015 and copies of various utility and council rate bills addressed to ZCJ dating from 2012 to 2014. Copies of bank statements for accounts in the names of various members of ZCJ's family, including ZCJ and the younger son, ranging from 2010 to 2015 were also provided.
3. The younger son did not provide any additional written submissions in support of the appeal. At the appeal hearing, he confirmed that the contents of the Notice of Appeal and the annotated reasons for decision represented the written submissions that he wished to make.
4. Under the heading "Grounds of appeal", the younger son provided 10 grounds of appeal. Whilst in his Notice of Appeal the younger son indicated that his appeal related to questions of law only and he did not seek leave to appeal on any other grounds, in a letter to the Appeal Registry dated 9 August 2016, he requested permission to broaden his appeal from questions of law to questions of fact.
5. As the appellant was unrepresented, the Appeal Panel assisted him to define his grounds of appeal (Neill v Not [1994] HCA 23). We have divided the grounds of appeal into four categories given the overlapping nature of some of the grounds: 1. that the Tribunal denied the younger son procedural fairness by allowing ZCO to accuse him of stealing from ZCJ without providing verification of those allegations and refusing to allow the younger son to lead evidence of his good character until agreeing to do so on the insistence of ZCJ's legal representative (Ground 9). 2. that the Tribunal failed to give sufficient weight to the views of ZCJ that she wished to have her younger son manage her financial affairs (Grounds 1, 2, 5). 3. that the Tribunal failed to give sufficient weight to evidence relevant to the younger son's suitability to manage his mother's financial affairs (Grounds 3, 4,10). 4. the Tribunal's adverse findings against the younger son were without foundation and failed to take account of his ethnic and cultural heritage and that Romanian remains his first language (Grounds 6, 7, 8).
6. Other than the assertion of a denial of procedural fairness, we were unable to identify any other potential questions of law from the younger son's material (John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69, at [13] to [18]).

Reply to appeal

1. ZCO, ZCJ's granddaughter, filed a reply to appeal in which she disputed each of the appellant's grounds of appeal. The granddaughter also provided written and oral submissions as well as a number of documents that were in evidence before the Tribunal below. ZCO submitted that the appeal should be dismissed.

Ground of appeal 9 - Denial of procedural fairness

1. A denial of procedural fairness is a question of law: Italiano v Carbone [2005] NSWCA 177; Clements v Independent Indigenous Advisory Committee [2003] FCAFC 143 at [8]; John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [13(4)].
2. Accordingly, if a denial of procedural fairness is established, the younger son has a right to appeal and leave to appeal is not required (CAT Act, s 80(2)(a)).
3. The first way that the Tribunal was said by the younger son to have denied him procedural fairness was by allowing ZCJ's granddaughter to accuse the younger son of stealing from ZCJ without providing any verification of those allegations.
4. In his oral submissions, the younger son told us that he bought his parents' home for them in 1979. He also renovated the home and paid $25,000 of his own money towards these costs. The younger son told us that he was able to undertake much of this work himself as he used to work as a contractor and electrician. We understood the younger son provided us with this information as part of his submission that denied any allegation that he has stolen from his mother and that he in fact contributed a significant sum of money and time towards the purchase of the home. He also denied any suggestion that he had misappropriated rental income from his mother's property and stated that he had in fact cared for his mother over a very lengthy period and spent his own funds towards her care.
5. The granddaughter, in her reply to the appeal and written submission, disputed that the hearing was procedurally unfair to the younger son. ZCO submitted that particulars of the advertisements for the rental of ZCJ's property were in evidence before the Tribunal below and the younger son admitted receiving rental income over a period of five years yet ZCJ was in debt.
6. The second way that the Tribunal was said by the younger son to have denied him procedural fairness occurred when he attempted to lead evidence of his good character. According to the younger son, the presiding member refused to allow that evidence and it was only on the insistence of ZCJ's legal representative that the presiding member "begrudgingly" allowed the witnesses to give their evidence.
7. In reply, the granddaughter submitted that one of the younger son's character witnesses gave written evidence and three gave oral evidence. The younger son was not prevented from having this evidence considered by the Tribunal.

Discussion

1. Section 38(2) of the CAT Act states: The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice. [Emphasis added.]
2. Section 38(5)(c) of the CAT Act states: The Tribunal is to take such measures as are reasonably practicable... to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings.
3. The obligation of the Tribunal to accord procedural fairness in relation to Guardianship Division proceedings is summarised in BTD v NSW Trustee and Guardian [2015] NSWCATAP 87 (at [14]-[15]) as follows: 14 The Guardianship Division is required to comply with the rules of procedural fairness, which are also known as the rules of natural justice: NCAT Act, s 38(2). Those rules require that a person be afforded a fair and unbiased hearing before decisions are taken which affect them: Aronson, Dyer and Groves, Judicial Review of Administrative Action, (5th ed 2013 LawBook Co) at 397. In particular the hearing rule, which is an element of procedural fairness, requires that a decision-maker hear a person before making a decision affecting their interests. McHugh J spoke generally of this rule in Re Refugee Tribunal; ex parte Aala [2000] HCA 57; (2000) 75 ALJR 52 at 73: One of the fundamental rules of the fair hearing doctrine is that a decision-maker should not make an adverse finding relevant to a person's rights, interests or legitimate expectations unless the decision-maker has warned that person of the risk of that finding being made or unless the risk necessarily inheres in the issues to be decided. It is a corollary of the warning rule that a person who might be affected by the finding should also be given the opportunity to adduce evidence or make submissions rebutting the potential adverse finding (Mahon v Air New Zealand Ltd [1983] UKPC 29; [1984] AC 808 at 820-821.) 15 The content of the hearing rule must be "appropriate and adapted to the circumstances of the particular case": Kioa v West [1985] HCA 81; (1985) 159 CLR 550 per Mason J at 585. The Guardianship Division's jurisdiction is a protective one. One of its primary aims is to protect vulnerable people from neglect, abuse and exploitation: The Act 1987 (NSW), s 4(g). But that is not its only obligation. The Guardianship Division of the Tribunal is also obliged to ensure that people who are parties to applications receive a fair hearing from an impartial decision-maker. The Tribunal is obliged to disclose to parties who have an interest in the proceedings, the substance of any adverse or prejudicial information and give them a reasonable opportunity to respond: KV v Protective & Ors; KW & Ors v KV & Ors (No.2) [2004] NSWADTAP 48.
4. See also Warkworth Mining Limited v Bulga Milbrodale Progress Association Inc [2014] NSWCA 105; Kline v NSW Land and Housing Corporation [2014] NSWCATAP 41, [61]-[63]; Chan Cuon Su v Public Guardian [2014] NSWCATAP 32; Ayoub v CPT Corp Pty Ltd [2015] NSWCATAP 259; Smeaton v Valerius [2015] NSWCATAP 223.
5. In determining whether the appellant was denied procedural fairness, the question for the Appeal Panel is whether he had a reasonable opportunity to respond to any adverse or prejudicial information.
6. We understand that the younger son's criticism on this ground relates to the evidence provided by ZCJ's granddaughter at the hearing about his role in, both on an informal basis and then subsequent to his appointment as his mother's attorney in 2013, in the management of his mother's finances including the rental income ZCJ received from her property and debts that she had accrued and which remain outstanding. That the granddaughter made a number of assertions to this effect is borne out in the transcript (Transcript, 37 to 41). As is also evident from the transcript, the younger son firmly denied any allegation that he had acted inappropriately in relation to his mother's estate. The legal representatives of ZCJ and ZCN urged the Tribunal to place limited weight on the granddaughter's evidence in relation to these matters. For example, at 47 of the transcript, ZCJ's legal representative submits that …the level of dislike between [ZCO] and [the younger son] is such that [ZCO] is not in a position to give the tribunal an objective opinion about [the younger son's] suitability to act as his mother's financial manager.
7. The question to be asked is whether the younger son had a reasonable opportunity to respond to this potentially adverse or prejudicial information.
8. The transcript indicates that (Transcript, 56, lines 30-33) the Tribunal specifically directed the younger son's attention to the matters raised by the granddaughter and invited him to respond to her allegations. He did so (Transcript, 56-61 and 69-70). The transcript indicates that the younger son provided an explanation about the debts incurred by his mother as well as the rental history of the home owned by ZCJ. This was reflected in the Tribunal's recounting of the evidence at [78]-[83] of the written reasons.
9. From a reading of the transcript and written reasons, it is evident that the Tribunal did not rely on the granddaughter's assertions as to the younger son's history of assisting his mother with her finances. The Tribunal determined through its own questioning of the younger son about ZCJ's debts and the rental history of her home that it had concerns about the manner in which he had assisted his mother to manage her financial affairs. In the context of a lengthy hearing which was in its second day, having been adjourned part heard on 29 January 2016, the younger son was given a reasonable opportunity to respond to the matters raised. That he disagrees with the findings of the Tribunal does not support his claim that the hearing was procedurally unfair.
10. The first aspect of the appellant's assertion that he was denied procedural fairness is not made out.
11. In relation to the second way that the Tribunal was said by the younger son to have denied him procedural fairness, namely, that the Tribunal initially refused to allow him to lead character evidence and then only did so "begrudgingly". we note that in the written reasons (at [75]) the Tribunal made specific reference to the evidence given by witnesses on behalf of the younger son as follows: [The younger son] was supported by a number of family friends who gave evidence about the care [the younger son] provided to his mother during the period they lived together in her home. [The younger son] also relied on the evidence of a friend and former real estate agent and sales manager who said that [the younger son] was straightforward, honest and could appropriately manage his mother's property.
12. The transcript of the hearing on 30 March 2016 bears out that the Tribunal heard from three witnesses attesting to these matters (Transcript, 55, lines 35-45, 56, lines 5-20, and 66, lines 30-40). The transcript also indicates that the Tribunal had before it written statements attesting to the younger son's role in caring for his mother (Transcript, 54, lines 40-45, 55, line 5, 66 lines 5-10, and 67, line 30).
13. The Tribunal's decision makes evident that it had before it written and oral evidence attesting to the younger son's good character and that it took this evidence into account.
14. The second aspect of the appellant's assertion that he was denied procedural fairness is not made out.
15. The ground of appeal relating to a denial of procedural fairness is not established.

Other grounds of appeal

1. The younger son is entitled to appeal on grounds other than a question of law but must first obtain the Tribunal's permission or leave (CAT Act, s 80(2)(b)).
2. The principles which govern the granting of leave to appeal pursuant to s 80(2)(b) of the CAT Act are set out in Collins v Urban [2014] NSWCATAP 17 at [84]. The Appeal Panel referred to SAB v SEM [2013] NSWSC 253, in which White J considered the principles which applied to an appeal to the Supreme Court from a decision of the then NSW Guardianship Tribunal: [8] Without intending to be exhaustive, the considerations governing a determination as to whether leave should be given will include whether or not a question raised involves a matter of administration or policy which might have general application, whether or not the Tribunal's decision has been arrived at after the Tribunal members have directed themselves properly and fairly on the facts and not gone wrong in law, whether there is an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand, and whether the factual error was unreasonably arrived at and clearly mistaken. (See K v K at [14] and Slinko v Guardian Administration Tribunal at [9]-[16]) [9] Underlying these constraints is the need to recognise that Parliament has entrusted to the Tribunal the primary function of making the factual determinations required for a guardianship order, and that the Court should not grant leave to appeal unless the Tribunal has gone about that fact finding process in a way which is so unorthodox as to be likely to produce an unfair result. It is not enough that a judge might consider that he or she would have reached a different conclusion on the facts from the conclusion reached by the Tribunal. [10] The grant or withholding of leave is to be exercised having regard to the general principles in s 4 of the Act, including the principle that the welfare and interests of the person with disabilities is to be given paramount consideration. But that is not to say that the gateway requiring leave to appeal can be emasculated by the Court's too readily engaging in a detailed review of the facts with a view to detecting possible error.
3. In C v W [2015] NSWSC 1774, when discussing the particular considerations in a protective jurisdiction relevant to the granting of leave by the Court under cl 14(1)(b) of sch 6 to the CAT Act, Lindsay J (at [44]-[46]) stated, relevantly, that [44] Secondly, if leave is to be granted pursuant to clause 14(1)(b) for an appeal on a ground other than a question of law, the Court generally needs to be satisfied that there is a question of principle or policy, or a manifest error in the decision or decision-making process under review, which merits a grant of leave: Collins v Urban [2014] NSWCATAP 17 at [82]-[84], qualified, in cases involving an exercise of the Court's protective jurisdiction, by observations made in P v NSW Trustee and Guardian [2015] NSWSC 579 at [191]. [45] Thirdly, given the broad evaluative or discretionary content of a decision to make, or to decline to make, a financial management order, appellate interference with such a decision will generally require identification of an error of principle or the like: House v The King (1936) 55 CLR 499 at 504-505. The terms in which these distinct gateways to appellate review are expressed should not be overlooked. They all point in the direction of requiring identification of some error beyond a mere error of fact. (Emphasis added) [46] Given the broad evaluative or discretionary content of most decisions made on an exercise of protective jurisdiction, guidance about what is or may be an error of principle may, in particular cases, be derived from House v The King (1936) 55 CLR 499 at 504-505.
4. The relevant principles are set out in House v R [1936] HCA 40; 55 CLR 499 as follows: 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.
5. We now consider each of the grounds of appeal as we have grouped them (at [43] above) against the principles set out in these cases.

Grounds of appeal 1,2, and 5 - Did the Tribunal fail to give sufficient weight to the views of ZCJ that she wished to have her younger son manage her financial affairs?

1. The younger son submitted that the decision of the Tribunal not to revoke the financial management order (which, if it had been revoked, would have allowed him to act as ZCJ's attorney) or alternatively not to revoke the appointment of the NSW Trustee and Guardian and replace him as ZCJ's private financial manager, failed to give sufficient weight to his mother's wishes as were made clear during the course of the hearing and by the fact that in 2013 she appointed her younger son as her attorney pursuant to an enduring power of attorney.

Discussion

1. It is clear that the Tribunal, when exercising functions for the purposes of the Act, including when considering whether it may revoke a financial management order under s 25P of that Act or revoke the appointment of a manager under s 25U, is under duty to observe the principles set out in s 4 of the Act giving primacy to the welfare and interests of the protected person as required by s 4(a) (C v W [2015] NSWSC 1774, at [82]-[100]). In this matter the Tribunal was also under a duty to take into consideration the views of ZCJ (s 4(d)).
2. Although ZCJ did not take part in the hearing on 29 January 2016 or 30 March 2016 (for the reasons set out at [42] of the written reasons), she was legally represented in the proceedings. As reflected in the written reasons, Mr Marsh made clear his instructions that ZCJ supported her younger son's application to have the financial management order revoked and also that the younger son should replace the NSW Trustee and Guardian as financial manager in the event that the order was not revoked (at [62], [64], and [84]).
3. The written reasons also record ([68], [70]-[71]) that the existence of the power of attorney, and thereby ZCJ's wishes as reflected in her execution of that document in 2013, were given consideration by the Tribunal when exercising its discretion as to whether the financial management order should be revoked under s 25G of the Act.
4. In relation to its consideration of whether the NSW Trustee should be replaced with the younger son, the Tribunal came to the following conclusion: [94] The Tribunal takes into account [ZCJ's] wish that her son be able to manage her affairs. However, the Tribunal does not consider [the younger son] suitable for appointment as financial manager of [ZCJ's] estate. By his own admission, prior to the appointment of the NSW Trustee and Guardian, [the younger son] was managing his mother's finances. Also by his own admission, his mother's finances were intermingled with his own. [The younger son] was unable to appreciate the relevance and importance of avoiding conflicts of interest, and was unable provide a satisfactory answer to the Tribunal's questions about how he would manage such conflicts. Moreover, the Tribunal finds that [the younger son] has failed to provide a satisfactory explanation for the expenditure of [ZCJ's] funds while he was in charge of her affairs, and his evidence in this regard was inconsistent and lacked credibility. The Tribunal was therefore not satisfied that [the younger son] was suitable to be appointed as financial manager of [ZCJ's] estate. [95] Furthermore, the family conflict that was present at the time the Tribunal made its financial management order continues to exist and is highly unlikely to resolve. Therefore, taking into account all of the evidence and submissions as well as the important section 4 principles, the Tribunal was not satisfied that it is in the best interests of [ZCJ] that the appointment of the NSW Trustee and Guardian be revoked.
5. The weight to be given to evidence is a question of fact. As Mason J explained in Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24 at 40, "it is generally for the decision-maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power".
6. We do not consider that in exercising the discretion in s 25P or s 25U as to whether the financial management order should be revoked, or the manager replaced, the Tribunal failed to give sufficient weight to ZCJ's views. This was a balancing exercise undertaken by the Tribunal who had the benefit of hearing the evidence and submissions of parties, their legal representatives and the witnesses. The Tribunal expressly referred to ZCJ's wish that her younger son look after her financial affairs but gave greater weight to other considerations, in accordance with the s 4 principles (see [94]-[95]), to determine that it was not in ZCJ's best interests for the appointment of the NSW Trustee to be revoked. In doing so, the Tribunal measured, as it is required to do, each of the principles set out in s 4(b)-(h) against "whether it is in the interests, and for the benefit, of the particular person in need of protection" pursuant to s 4(a) of the Act (P v NSW Trustee and Guardian [2015] NSWSC 579, [320] (Lindsay J)).
7. We conclude that the Tribunal made none of the errors identified in House v The King [1936] HCA 40; 55 CLR 499 (at 504-505) and the grounds that considered together assert that the Tribunal failed to give sufficient weight to the views of ZCJ that she wished to have her younger son manage her financial affairs are not established. It cannot be said that a matter of administration or policy is raised which might have general application, that he Tribunal adopted an unorthodox approach to the conduct of the hearing, made a readily identifiable error or mistake or that it would be unjust to allow the findings to stand.

Grounds of appeal 3, 4, and 10 - Did the Tribunal fail to give sufficient weight to evidence relevant to the younger son's suitability to manage ZCJ's financial affairs

1. The younger son submitted that the Tribunal failed to give sufficient weight to the history of him acting as his mother's financial manager, that he is his mother's only surviving child and sole beneficiary of her estate and the evidence of character witnesses who had known the younger son for decades. By doing so, on the younger son's case, the Tribunal failed to give sufficient weight to his suitability to manage his mother's financial affairs.
2. The Tribunal made express reference to the younger son's management of his mother's financial affairs prior to orders being made by the Tribunal (at [57], [62], [68], [80]-[83]). The Tribunal expressly noted the submission made by ZCJ's counsel (at [84]) that the "[younger son] had lived with his mother in her home for 15 years, and he (Mr Marsh) had observed a level of affection between them". As also previously noted, the reasons expressly refer to the character evidence given on the younger son's behalf (at [75]) attesting to "the care [the younger son] provided to his mother during the period they lived together in her home" and the evidence given by one of the witnesses that the younger son was "straightforward, honest and could appropriately manage his mother's property".
3. As previously noted, "it is generally for the decision-maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power" (Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24 at 40 per Mason J). The written reasons indicate that the Tribunal considered the evidence in favour of the younger son's application to revoke the order or, alternatively, to replace the NSW Trustee as his mother's financial manager. However, the Tribunal found that aspects of the history of the younger son's management of his mother's financial affairs led it to the view that the financial management order should remain in place and that the younger son was not a suitable person to be appointed as the private financial manager.
4. We do not consider that the Tribunal failed to give sufficient weight to the matters advanced in favour of the son regaining the authority to manage his mother's financial affairs and conclude that the Tribunal made none of the errors identified in House v The King [1936] HCA 40; 55 CLR 499 (at 504-505). The appellant has not established a matter of administration or policy which might have general application. Nor has it been established that the Tribunal adopted an unorthodox approach to the conduct of the hearing, made a readily identifiable error or mistake or that it would be unjust to allow the findings to stand.

Grounds of appeal 6, 7, and 8 - Were the Tribunal's adverse findings against the younger son without foundation, failed to take account of his ethnic and cultural heritage and that Romanian remains his first language?

1. As previously noted, the Tribunal found that aspects of the history of the younger son's management of his mother's financial affairs led it to the view that the financial management order should remain in place and that the younger son was not a suitable person to be appointed as the private financial manager. The Tribunal relied on probative evidence to reach this view including evidence given by the younger son himself, for example, his explanation of the rental history of his mother's home and how her debts, in particular credit card debts, had accrued. Whilst the younger son has a very firm view as to how he believes this evidence should have been viewed, the Tribunal, as set out in its reasons, formed views adverse to the younger son and we see no error in the manner in which it did so.
2. We also understood the younger son to be critical of the decision of the first Tribunal on 30 October 2014 which was held in urgent circumstances, as we understand it, due to the impending sale of ZCJ's home at that time. A three-month guardianship order and three-month interim financial management order were made on that occasion. Neither ZCJ nor her younger son participated in that hearing as they had travelled to Queensland when written notices for the hearing were issued. Both ZCJ and her younger son did, however, participate in the hearing three months later on 29 January 2015 when the Tribunal made a further guardianship order and a financial management order.
3. As we understood the younger son's submission, if the Tribunal on 30 March 2016 intended to deal fairly and justly with his application, then it should have looked into the circumstances leading up to the first hearing and that there was no basis for any orders in relation to his mother. The younger son also submitted that the fact that English was his second language created difficulties in communication. He believes that the Tribunal on 30 March 2016 and on previous occasions misunderstood his evidence including the cultural issues that were relevant to the way that he and his mother shared their home and, in some respect, finances for many years.
4. To the extent that younger son asserts that errors were made in previous Tribunal decisions concerning his mother, then it was open to him as a party to appeal those decisions. He did not do so. Further, we were unable to discern anything in the transcript or written reasons of the Tribunal below to support a conclusion that the fact of the younger son's Romanian heritage and that English was his second language led to misunderstandings about his evidence that would warrant a grant of leave.
5. We do not consider that the Tribunal directed themselves improperly on the facts and conclude that the Tribunal made none of the errors identified in the authorities outlined previously. The appellant has failed to establish that there is any injustice which would require or justify the granting of leave to appeal in the circumstances.

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: 15 June 2017