ZCY v ZCZ & Ors

NCAT Appeal Panel|2016-11-21

REASONS FOR DECISION

Two and a half years ago the appellant, who is in her mid-sixties, suffered a stroke. She was left with significant physical disabilities. After a six month hospitalisation she moved to a residential age care facility, where she resides to this day.
The appellant appeals against the decision made by the Guardianship Division of the NSW Civil and Administrative Tribunal (NCAT) in June 2016 to renew the guardianship order made in January 2015 for a further 12 months (the decision under appeal). In that decision, the Tribunal reappointed the Public Guardian for a period and conferred on the Public Guardian functions of accommodation, services, health care and access.
The primary ground of appeal is that the Tribunal erred in finding that the pre-condition to the making of a guardianship order was satisfied, namely that the appellant is a "person in need of a guardian" as that term is defined by s 3 of the Guardianship Act 1987 (NSW) (the Act).
For the reasons that follow, we have decided to grant the appellant leave to appeal and to allow the appeal.

Publication of names of the parties

The publication or broadcast of the name of any person who is mentioned or is otherwise involved in an "internal appeal" against decisions made by the Guardianship Division of NCAT is prohibited: s 65(1) of the Civil & Administrative Tribunal Act 2013 (NSW) (NCAT Act). Being an official report of the appeal proceedings, that prohibition does not apply to these reasons for decision: s 65(3) of the NCAT Act. Nonetheless, because of the sensitive nature of the matters raised in these proceedings, we have decided not to publish in these reasons any details that may identify the appellant, her son or husband. In these reasons, we refer to the appellant, her husband and her son, by the pseudonyms, "ZCY", "ZDA" and "ZCZ", respectively.

Is the appeal out of time?

An issue raised by ZCZ in the appeal is whether the Notice of Appeal was lodged out of time. For the following reasons we concluded it was not.
The appellant was required to lodge the Notice of Appeal within 28 days from the day on which she was notified of the decision under appeal or given reasons for that decision (whichever is the later): r 25(4)(b) of the Civil and Administrative Tribunal Rules 2014 (NSW). The appeal was lodged on 18 August 2016, 50 days after she was notified of the decision under appeal. However, the appellant did not receive reasons for the decision until sometime after the appeal was lodged. In this matter the time in which the notice of appeal must be lodged does not commence to run until the date the appellant was given reasons for the decision. Therefore the appeal was not lodged out of time.

Parties to the appeal and their representatives

The appellant was represented in this appeal by Stephin Hargreave, an advocate with People with Disabilities. In addition, pursuant to orders made by the Appeal Panel under s 45(4) of the NCAT Act, the appellant was separately represented by solicitor, Paul Mathers.
The parties to this appeal are the appellant, the Public Guardian, the appellant's husband, ZDA, and her son, ZCZ. Her husband supported the appeal; while her son opposed it. The Public Guardian did not participate in the appeal.

Background to the decision under appeal

To put the submissions made by the parties in context it is useful to refer to some background facts.
The appellant and ZDA have been married for 30 years. ZCZ is one of three children from the appellant's previous marriage.
Four months after his mother suffered a stroke in 2014, ZCZ made an application to the Guardianship Division of NCAT seeking a financial management order in respect of his mother. The following month, the appellant executed an instrument appointing her husband as her enduring guardian (the 2014 AEG). In addition, she made an enduring power of attorney appointing her husband as her attorney (the 2014 POA).
Subsequently, ZCZ made an application to the Guardianship Division seeking a review of the 2014 AEG and the 2014 POA. The stated grounds for that application included: 1. The appellant lacked the capacity to make the 2014 AEG and the 2014 POA. 2. ZDA is mismanaging the appellant's finances and using her income for his own behalf. 3. ZDA has a poor understanding of the appellant's care and medical needs.
At a hearing on 28 October 2014, the Tribunal confirmed the appointment of ZDA as the appellant's enduring guardian and adjourned the applications made by ZCZ seeking a financial management order and review of the 2014 EPA.
Shortly before Christmas 2014, ZCZ made a further application to NCAT for a guardianship order in respect of his mother. Following a hearing on 19 January 2015 to determine that application and the financial management application, the Tribunal: 1. made a guardianship order in respect of the appellant, appointing the Public Guardian as guardian for a period of 12 months, with authority to make decisions with respect to the appellant's accommodation, health care, services and to consent to medical and dental treatment (the 2015 Guardianship order); and 2. made a financial management order committing the management of the appellant's estate to the NSW Trustee and Guardian.

The decision under appeal

As required by s 25(2) of the Act, the Tribunal (differently constituted) conducted an end-of-term review of the 2015 Guardianship order. On 7 January 2016 the Tribunal adjourned the hearing of the review for three months due to ZCY's ill health at that time. On 15 April 2016 the Tribunal again adjourned the hearing but this time part heard, for a period of about eight weeks.
Following a hearing on 29 June 2016, the Tribunal renewed that order for a period of 12 months. This is the decision under appeal.
Unless otherwise stated, in these reasons all references to "the Tribunal" are to the Tribunal constituted to review the 2015 Guardianship order, that is, the Tribunal that made the decision under appeal. The term "original Tribunal" will be used to refer to the Tribunal constituted to consider the application to review the 2014 AEG (on 28 October 2014) and to consider the application for a guardianship order (on 19 January 2015).

Grounds of appeal

The grounds of appeal relied upon are as follows: 1. The Tribunal erred in finding the appellant did not have "legal capacity to make her own decisions"; 2. Fresh evidence is now available, namely the report of psychiatrist, Dr Pusic, dated 15 July 2016, which, had it been available to the Tribunal, is likely to have resulted in the original Guardianship order not being renewed; and 3. The appellant was at a disadvantage at the hearing on 28 October 2014, as she was not represented.
As conceded for the appellant, none of the grounds on which she relies raise a question of law and therefore leave of the Appeal Panel is required to appeal the decision to renew the 2015 Guardianship order: s 80(2)(b) of the NCAT Act.

Ground 1: The Tribunal erred in finding the appellant did not have "legal capacity to make her own decisions".

At the hearing of the appeal, Mr Hargreave, for the appellant, explained that the term "legal capacity to make decisions" used in the Notice of Appeal and the supporting submissions was intended as a reference to the term a "person in need of a guardian" as defined by s 3 of the Act. The ground was variously expressed as "being wrong", "based on a false premise" and "against the weight of evidence".
In support of this ground the appellant points to the opinions expressed by clinical psychologist Dr David Bosanquet, consultant psychiatrist Dr Augustus Pusic and neurosurgical registrar, Dr Anthony Chan.
Mr Mathers submitted that the finding that the appellant is a "person in need of a guardian" could not be said to be against the weight of evidence. Nonetheless, he submitted that in making that finding the original Tribunal misinterpreted the report prepared in October 2014 by Dr Pusic and that this misinterpretation carried through to the decision under appeal. He contends that this error was significant as Dr Pusic was not only the appellant's treating psychiatrist (since 1999) but also the "most senior practitioner" to provide an opinion about the appellant's decision-making capacity.
ZCZ disagrees. He contends that there was ample evidence before the Tribunal to support its finding that the appellant is a person in need of a guardian. He contends that the expert evidence supports that finding. He disputes the proposition advanced by Mr Mathers that Dr Pusic was the "most senior practitioner" to assess the appellant and contends that of the experts, clinical neuropsychologist, Dr Deborah Arguedas, was best placed to provide an opinion about the appellant's decision-making capacity. He points out that Dr Arguedas conducted a thorough and comprehensive assessment of the appellant's cognitive capacity.
In addition, ZCZ contends that the appellant cannot point to any grounds which might ordinarily support the granting of leave, citing in support Collins v Urban [2014] NSWCATAP 17.

Statutory framework

The 2015 Guardianship Order was made pursuant to s 25C(2) of the Act, which sets out the orders available to the Tribunal on reviewing a guardianship order that is about to expire: 25C Action on review (2) On reviewing a guardianship order under section 25(2)(b), the Tribunal may: (a) renew, or renew and vary the order, or (b) determine that the order is to lapse (and revoke the order in respect of any unexpired period for which the order is specified to have effect).
Section 14 deals with the making of a guardianship order and 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.
The phrase a "person in need of a guardian" as used in s 14(1), is defined in s 3 of the Act to mean "a person who, because of a disability, is totally or partially incapable of managing his or her person". Section 3(2) of the Act, defines a "person who has a disability" in the following terms: In this Act, a reference to a person who has a disability is a reference to a person: (a) who is intellectually, physically, psychologically or sensorily disabled, (b) who is of advanced age, (c) who is a mentally ill person within the meaning of Chapter 3 of the Mental Health Act 1990, or (d) who is otherwise disabled, and who, by virtue of that fact, is restricted in one or more major life activities to such an extent that he or she requires supervision or social habilitation.
As explained by an Appeal Panel of one of NCAT's predecessor Tribunals, the Administrative Decisions Tribunal, in IF v IG & Ors [2004] NSWADTAP 3 at [30] before exercising the discretionary power to make, and renew a guardianship order as a first step, the Tribunal must first be satisfied that the subject person is a person in need of a guardian. See also Application of SJ [2011] NSWSC 372 at [31]; DL v Public Guardian and Ors [2008] NSWADTAP 6 at [6]; DG v Public Guardian and Ors [2008] NSWADTAP 58 at [23]; EB & Ors v Guardianship Tribunal & Ors [2011] NSWSC 767 at [112]; ZAH v ZAI [2016] NSWCATAP 242 at [64].

Decision under appeal

The Tribunal correctly identified that it was required to be satisfied that the appellant was a "person in need of a guardian" before the power to renew the 2015 Order could be exercised: reasons for decision, 29 June 2016 (the Reasons) at [13].
Noting that the appellant's decision-making ability was a live issue in these proceedings, in April 2016 the Tribunal decided to adjourn the hearing of the review of the 2015 Guardianship Order. In its reasons for that decision the Tribunal wrote that it would be assisted by up-to-date reports addressing the appellant's "capacity to make informed lifestyle decisions": Reasons for decision to adjourn the review of the 2015 Guardianship order, 15 April 2016 at [16]. The Tribunal directed the Public Guardian to provide a report prepared by a "suitably qualified health professional such as a Psychiatrist, Neuropsychologist or Psychologist addressing the appellant's current capacity to make informed lifestyle decisions".
On 29 June 2016, when the hearing to review the 2015 Guardianship order reconvened, the Public Guardian advised that it had not complied with the Tribunal's direction because it had been unable to obtain a referral from the appellant's general practitioner.
At that hearing, ZDA tendered a report prepared by clinical psychologist, Dr David Bosanquet, dated 6 April 2016. Dr Bosanquet wrote that overall the appellant's "cognitive function is normal and she is able to participate in decision-making processes relating to her life": Reasons at [10].
The Tribunal noted :

Dr Bosanquet's report was prepared following a single consultation with the appellant of an hour's duration. In oral evidence he acknowledged that he did not have the benefit of any background material such as reports prepared by the appellant's treating doctors or other health professionals: Reasons at [17].
Dr Bosanquet had not conducted any formal assessment of the appellant's cognitive ability apart from a Mini Mental State Examination: Reasons at [18].
Apart from noting that the results of the Mini Mental State Examination showed no cognitive impairment, Dr Bosanquet did not record the results of that examination: Reasons at [17].

After considering Dr Bosanquet's report the Tribunal went on to refer to the medical evidence that was before the original Tribunal, the views expressed by the appellant and her husband, together with the appellants' presentation at the hearing. The Tribunal wrote: 18 The Tribunal notes that in the Tribunal's Reasons for Decision dated 28 October 2014, the Tribunal refers to reports available to it from [ZCY]'s hospital neurosurgical team including a neuropsychologist, social worker, occupational therapist and a private psychiatrist who had seen [ZCY] over a number of years. These reports were described as reasonably consistent in stating that [ZCY]'s brain injury had caused cognitive and personality deficits causing her to lack capacity to make informed financial and lifestyle decisions. 19 The Tribunal took into account the views of both [ZCY] and [ZDA] that [ZCY] can make her own lifestyle decisions and does not require a guardian. [ZCY] expressed strongly that she believes that she would be able to manage living at home on a number of occasions throughout the hearing. She lacked insight into the impact of her physical disabilities. 20 [ZCY]'s presentation before the current Tribunal was consistent with the evidence referred to in the previous Tribunal's Reasons of October 2014, January 2015 and 31 July 2015 and the findings of those Tribunals that she has some cognitive impairment.
The Tribunal concluded that the appellant "continues to have a disability which prevents her making important life decisions": Reasons at [21].

Did the Tribunal misconstrue Dr Pusic's opinion?

As noted, Mr Mathers contends that the original Tribunal misconstrued the opinion given Dr Pusic and that this error infected the decision under appeal. To put this submission in context it is necessary to look at the respective reasons for decisions given by the original Tribunal and the Tribunal.
The reasons given by the original Tribunal for deciding to confirm the appointment of ZDA as the appellant's guardian, 28 October 2014, contain this summary of Dr Pusic's report (at pp 8,9): Dr Pusic is a consultant psychiatrist who notes in his report of 27 October 2014 that he has been treating [ZCY] since 1999. He assessed [ZCY] at the ACF on 25 October 2014 at the request of the separate representative Mr Willis. He spent some time speaking to [ZCY], and later also spoke to her husband [ZDA]. He had access to the discharge summary from Nepean Hospital from August 2014, but not the report of Dr Arguedas. He only briefly assessed her cognitive function. On the basis of this assessment, Dr Pusic finds: a. She displayed no signs of psychotic symptoms, thought disorder, depression or delusional ideation. b. She displays cognitive and personality deficits following her brain injury, though it would be useful to obtain a formal assessment of her cognitive functioning. c. Notwithstanding the cognitive deficit, she displayed capacity to understand that an appointed guardian could make decisions on her behalf if she cannot. She also had a reasonable rationale for appointing her husband, and that was consistent with discussions with Dr Pusic about family conflict which took place prior to her brain injury. d. [ZCY] was not unduly influenced or schooled. e. [ZCY] is well aware of the nature and extent of her assets, and knows that entrusting another person with power of attorney means that person can make financial decisions without reference to her.
The original Tribunal did not expressly address in its Reasons whether the issue of whether the appellant was "a person in need of guardian". Rather its decision would appear to be based on its findings that the appellant has "consistently indicated her wish for her husband to be her guardian" and she "appreciated what she was doing in July 2014 when she appointed her husband as her enduring guardian": Reasons, 28 October 2014 (at p 17).
Four months after considering a further application made by ZCZ, the original Tribunal decided to make a guardianship order. This had the effect of suspending the appointment of ZDA as the appellant's enduring guardian: s 6I of the Act. In its reasons for that decision the original Tribunal wrote (at p 4): Is [ZCY] someone for whom the Tribunal could make an order because she has a disability which prevents her from being able to make important life decisions? In Section J of the previous Reasons for Decision following the October 2014 hearing, the Tribunal examines in some detail the professional evidence concerning [ZCY]'s disability, decision-making capacity and capacity to enter into the 2014 EPA and 2014 AEG. There is some difference of opinion about [ZCY]'s capacity to enter into the 2014 AEG and 2014 EPA, but the evidence about her capacity to make informed decisions in the significant areas of her life is more consistent. Reports from the hospital neurosurgical team, neuropsychologist, social worker, and occupational therapist, and from a private psychiatrist who had seen [ZCY] over time are reasonably consistent that her brain injury has caused cognitive and personality deficits causing her to lack the capacity to make informed financial and lifestyle decisions. There was no fresh reports or assessments made available to the Tribunal for this hearing. The professional opinions were supported by all those who attended the hearing except for [ZCY] and her husband. Mr [ZDA] and [ZCY] gave no specific reason for disputing these conclusions. In the absence of any professional opinion to the contrary, the Tribunal accepted the conclusions as accurate, and therefore found that [ZCY] is a person for whom a guardian can be appointed. (emphasis added)
The following extract from the reasons for renewing the 2015 Guardianship Order reveal that the Tribunal, in effect, adopted the findings made by the original Tribunal about the expert evidence concerning the appellant's capacity to make "informed financial and lifestyle decisions": 18 The Tribunal notes that in the [original] Tribunal's Reasons for Decision dated 28 October 2014, the [original] Tribunal refers to reports available to it from [ZCY]'s hospital neurosurgical team including a neuropsychologist, social worker, occupational therapist and a private psychiatrist who had seen [ZCY] over a number of years. These reports were described as reasonably consistent in stating that [ZCY]'s brain injury had caused cognitive and personality deficits causing her to lack capacity to make informed financial and lifestyle decisions. … 20 [T]he Tribunal was not satisfied that [Dr Bosanquet's] opinion that [ZCY] now has capacity to make informed lifestyle decisions should be preferred over the findings made by the previous Tribunal on 19 January 2015. Those findings were based on extensive expert medical evidence available to it from [ZCY]'s treating doctors and other health professionals, regarding the issue of [ZCY]'s capacity. There is no evidence upon which the Tribunal was able to rely that her decision-making capacity had changed significantly over this period of time. (emphasis added)
As Mr Mathers points out, the term "cognitive and personality deficits" used by both Tribunals in their respective reasons for decision appears to have been taken from Dr Pusic's October 2014 report. While Dr Pusic acknowledged that the appellant "display[ed] cognitive and personality deficits" and considered that "a formal assessment of her cognitive functioning would be useful" he did not opine that the appellant's "brain injury has caused cognitive and personality deficits causing her to lack the capacity to make informed financial and lifestyle decisions". He wrote : Conclusion It is evident that [ZCY] does display cognitive and personality deficits following a right intra cerebral haemorrhage requiring decompression. A formal assessment of her cognitive functioning would be useful. Notwithstanding any cognitive deficits [ZCY] does display capacity to understand that an appointed guardian could make decisions on her behalf if she is unable to do so for herself. She also gave reasonable rationale for wishing to appoint her husband as her guardian. Her reasoning is in keeping with the discussions she had with me regarding family conflicts. That discussions had taken place prior to her brain injury in May 2014. I do not feel that [ZCY] was unduly influenced or schooled. Similarly [ZCY] is well aware of the nature and extent of her financial assets, is aware that entrusting another person with power of attorney over her financial affairs means that this person can make financial decisions without reference to her. [ZCY] is well able to give a reasonable explanation as to why she would wish her husband [ZDA] to have power of attorney for financial decisions. (emphasis added)
The question of whether a person has capacity to appoint a guardian and the question of whether a "person is in need of a guardian" are not one and the same thing. The former requires an evaluation of whether a person, because of a disability, lacks the capacity to make an informed and reasoned decision about whether to appoint another person as their substitute decision-maker and understands the ramifications of making such decision. The latter requires an evaluation of whether a person, because of a disability, is totally or partially incapable of managing their person. While there is some overlap, the questions raise different matters for consideration. A person who has capacity to appoint a guardian may be incapable of managing their person, and vice versa. While Dr Pusic did not expressly address whether the appellant, to adopt the language used the Tribunal, "lack[ed] the capacity to make informed financial and lifestyle decisions", the inference that he held that opinion could not reasonably be drawn from his report.
The statement made by the original Tribunal that there was "[no] professional opinion to the contrary" that the appellant "lack[ed] the capacity to make informed financial and lifestyle decisions" was simply incorrect. Dr Pusic's opinion does not support that conclusion. Nor, as pointed out by Mr Hargreave, does the opinion expressed by neurosurgical registrar, Dr Chau. Dr Chau was a member of the appellant's treating team at Nepean Hospital since her admission in February 2014. The original Tribunal in its Reasons, 28 October 2014, contains the following extract from a report prepared by Dr Chau, dated 8 July 2014: Our [the hospital treating team] opinion is that currently, [the appellant] demonstrates the cognitive capacity to understand the nature and effect of legal documents and concepts such as will, power of attorney and enduring guardianship.
We agree with the proposition that the Tribunal's mischaracterisation of Dr Pusic's opinion was significant. As her treating psychiatrist since 1999, Dr Pusic was well placed to provide an opinion about the appellant's decision-making capacity. This is not to say that he was better placed than those experts who expressed a contrary opinion, but rather that his opinion was significant and the conflict in the expert evidence should have been addressed.
The impugned finding, that the appellant was a person in need of a guardian, rested on a mistaken factual assumption, namely that the expert reports before the original Tribunal were "reasonably consistent in stating that [ZCY]'s brain injury had caused cognitive and personality deficits causing her to lack capacity to make informed financial and lifestyle decisions". Ground 1 of the appeal is established.

Grounds 2 and 3

Given our decision in relation to Ground 1 it is not necessary to consider the remaining grounds of appeal.

Should leave to appeal be granted?

The impugned finding was a "jurisdictional fact", a condition precedent to the exercise of the power conferred by s 25C of the Act to renew the 2015 Guardianship order.
It could not be said that the impugned finding was based on "no evidence", a ground which, if established, might give rise to a question of law: Australian Broadcasting Tribunal v Bond [1990] HCA 33; 170 CLR 321 at [87] per Mason CJ; Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32, (2010) 241 CLR 390 at [90]-[91] per Hayne, Heydon, Crennan and Kiefel JJ.
Nor was the impugned finding "irrational" or "illogical", which might also give rise to a question of law: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [124]-[125]; per Crennan and Bell JJ. As explained by Crennan and Bell JJ in SZMDS 240 CLR 611 at [131] If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
Ground 1 was expressed in broad terms and is, in essence, a contention that the impugned finding was "wrong". The appellant endorsed the submission made by Mr Mathers that the original Tribunal had misunderstood Dr Pusic's report and that the Tribunal adopted that characterisation.
As no error of law has been identified or can be readily discerned, the appellant requires leave to appeal: s 80(2) of the NCAT Act. In Collins v Urban [2014] NSWCATAP 17, an NCAT Appeal Panel considered at [82] the principles which govern the granting of leave to appeal under s 80(2)(b) of the NCAT Act. That Appeal Panel held that those principles should generally be consistent with those applied by Courts, referring to the Court of Appeal's summary of those principles in BHP Billiton Ltd v Dunning [2013] NSWCA 421. In addition, the Appeal Panel referred to SAB v SEM [2013] NSWSC 253 where White J considered at [8]- [9], the principles which applied to an appeal to the Supreme Court from a decision of one of NCAT's predecessor Tribunal, the NSW Guardianship: 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].) 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. (See also BPY v BZQ [2015] NSWCATAP 33 at [33],[34],[37])
ZCZ submits that leave should be refused because no question of public importance or matters of administration or policy arises. Further, he submits that the Tribunal did not adopt an unorthodox approach to the conduct of the hearing or make a readily identifiable error or mistake.
As ZCZ submits, the authorities have consistently emphasised the need for restraint in exercising the power to grant leave to appeal, especially where the ground of appeal is in effect a challenge to a finding of fact. Nonetheless, we have decided it is appropriate to grant leave in the circumstances of this case. As discussed above, the impugned finding rested on a mistaken assumption, namely that the expert reports before the original Tribunal were "reasonably consistent in stating that [ZCY]'s brain injury had caused cognitive and personality deficits causing her to lack capacity to make informed financial and lifestyle decisions". The impugned finding was not peripheral to the ultimate decision but was a pre-condition to the exercise of the power to renew the 2015 Guardianship order.
On the material before us it is not possible to say whether the Tribunal might have reached a different conclusion had it not misconstrued Dr Pusic's opinion.
We have decided that the interests of justice warrant exercising the discretion to grant leave to appeal. In addition, we have decided to allow the appeal and remit the decision under appeal to the Guardianship Division for reconsideration.

Costs

At the close of the hearing, ZCZ announced that he sought an order for costs. We advised that any application for costs would be determined after the decision in relation to the appeal was handed down.
We note that costs can only be awarded if we are satisfied that there are "special circumstances" warranting an award of costs: s 60(2) of the NCAT Act.
Our preliminary view is that any application for costs can be adequately determined on the papers without the holding of a hearing: s 50(2) of the NCAT Act.

Conclusion

Given the passage of time since the decision under appeal was made, it is appropriate that the parties be given the opportunity to put on new evidence about the threshold issue of whether the appellant is currently a person in need of guardian. In these proceedings, the Public Guardian, ZDA and ZCZ filed reports addressing the issue of the appellant's capacity, which had been prepared after the decision under appeal was made. While not relevant to our decision, they are likely to be relevant to the reconsideration of the review of the 2015 Guardianship order.
We make the following orders: 1. Leave to appeal is granted. 2. Appeal allowed. 3. The decision under appeal made on 29 June 2016 is remitted to the Guardianship Division of NCAT for reconsideration in accordance with these reasons. 4. The decision under appeal is set aside but not until such time as it has been remade by the Guardianship Division. 5. Any party electing to make an application for costs must file and serve that application and submissions in support, within 14 days of the date of this decision. 6. Any party opposing that application(s) must file and serve any submissions in reply within 14 days of receipt of the application(s) and submissions. 7. If a cost application(s) is made, the parties are invited to comment in writing on whether, in their view, the application(s) can be adequately dealt with on the basis of written submissions and without a hearing being held. Any comments must be filed and served within 30 days of the date of this decision. 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: 28 February 2017

Administrative Tribunal Act 2013(NSW)

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