ZFJ v ZEY

The publication restrictions and parties to the appeal

1. Section 65 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) provides that, without the consent of the Tribunal, it is an offence to publish or broadcast the name of any person who appears as a witness before the Tribunal, the name of the person the subject of the proceedings or a person who is involved in proceedings under the Guardianship Act or an internal appeal from a decision under that Act. This restraint does not apply to an "official report" of proceedings. Generally, the Tribunal provides pseudonyms to protect the identity of parties and witnesses and we will do so in these reasons.
2. In these reasons we will refer to the respondents to the appeal as follows: 1. The woman the subject of the proceedings and named as the first respondent as "Mrs ZEY" 2. ZFB as the "third respondent" 3. ZFC, a daughter of Mrs ZEY, as "the fourth respondent" 4. ZFD, a son of Mrs ZEY, as "the other financial manager" 5. ZFE, a son a of Mrs ZEY, as "the sixth respondent" 6. ZFF, a daughter in law of Mrs ZEY and wife of the other financial manager as "the seventh respondent" 7. ZFG, a daughter of Mrs ZEY as "the first financial manager" 8. ZFH, a geriatrician at the Wollongong Hospital as "the ninth respondent" 9. NSW Public Guardian, the tenth respondent as "the Public Guardian" 10. NSW Trustee and Guardian, the eleventh respondent, as "the NSW Trustee" 11. ZFI, a daughter of Mrs ZEY, as the twelfth respondent.
3. We note that the third respondent filed submissions but did not participate in the appeal hearing. As earlier noted, nor did the Public Guardian or the NSW Trustee and Guardian. The Separate Representative in the proceedings before the Guardianship Division, who was incorrectly named as the Second Respondent, was removed as a party on 25 October 2017.
4. None of the respondents to the appeal was legally represented. The GAL did not organise any legal representation for Mrs ZEY nor did he provide any written submissions. However, he orally supported the family member respondents' position that the appeal should be dismissed.

An overview of the grounds of appeal

1. The appellant relied on eight grounds of appeal. Grounds 1, 3 and 4 are directed to questions relating to evidence about the first respondent's capacity. For convenience, we will deal with these grounds together.
2. Ground 2 asserts an error of law by the Tribunal in not disqualifying themselves for bias. The appellant confirmed at the appeal hearing she asserts actual bias by the Tribunal, not apprehended bias, although her submissions also address apprehended bias.
3. Ground 5 is inter-related with grounds 1, 3 and 4. It challenges the Tribunal's reliance on a report by a clinical neuropsychologist, Dr TK, on the basis that the neuropsychologist had limited information, received misleading information from the Tribunal, was not alerted to the expert code of conduct, and did not adequately address the issues.
4. Ground 6 asserts that the Tribunal acted unreasonably in appointing the first financial manager and the other financial manager as financial managers of Mrs ZEY's estate.
5. Ground 7 is directed to an asserted error by the Tribunal in renewing a temporary guardianship order that had lapsed. The ground also asserts a denial of procedural fairness, and making of the order in circumstances that demonstrated bias. The appellant asserts, if this ground is successful, then the orders are made without power and are a nullity.
6. Ground 8 relates to an asserted lack of procedural fairness by the Tribunal in declining to issue a Summons seeking production of hospital records.

Submissions of the parties

1. The family member respondents provided Replies to the appeal seeking its dismissal. The participating parties to the appeal provided written submissions, and the appellant provided a list of authorities on which she relied in support of her appeal. We were assisted by the meticulously compiled appeal books that were prepared by the appellant. We will refer to her submissions where relevant when dealing with the relevant grounds of appeal.
2. The family member respondents' submissions referred to evidence before the Tribunal below, and asserted there was no merit in the grounds of appeal, particularly in relation to any actual bias or apprehended bias by the panel who determined the guardianship application.
3. We note Mrs ZEY's view that she is settled and happy, and supports the appointment of the first and other financial manager as her financial manager.

Background

1. It is useful at this point in our reasons we set out relevant information and procedural background about the proceedings in the Tribunal. Some of the factual information is from the reasons for decision of the Tribunal published following the hearing of 18 May 2017. The accuracy of factual matters referred to in the reasons, to which we now refer was not subject of any controversy before us. Other information is sourced from the appeal books.
2. On 19 May 2016 the first respondent appointed the first and other financial managers as her joint and several attorneys pursuant to an enduring Power of Attorney. On the same day she also appointed the first and other financial managers as her joint and several guardians under a Deed of Enduring Guardianship.
3. In November 2016 Mrs ZEY was hospitalised at Coledale Hospital. A social worker at that hospital made an application to the Tribunal for the appointment of a guardian and financial manager for Mrs ZEY.
4. On 19 November 2016 Mrs ZEY revoked the power of attorney and guardianship appointment. The other financial manager then lodged an application with the Tribunal to review the operation and effect of an enduring Power of Attorney and to review the enduring guardianship appointment.
5. On 23 November 2016 an application was lodged by the twelfth respondent to review the enduring guardianship appointment.
6. At an interlocutory hearing held on 29 November 2016 the Tribunal made orders, including an order that Mrs ZEY be separately represented, that six of her children and her daughter in law (the appellant, the sixth, seventh, and twelfth respondents and the first financial manager and other financial managers), who were not at the time parties to the proceedings, be joined to the proceedings.
7. On 5 December 2016 the fourth respondent lodged an application with the Tribunal for the appointment of a financial manager and a guardian for Mrs ZEY.
8. On 6 December 2016 the other financial manager filed a further application to review the revocations of the Power of Attorney and Deed of Enduring Guardianship. On the same day a similar application was filed by the eighth respondent.
9. On 18 January 2017 the Tribunal commenced to hear the multiple applications then before it. The proceedings were adjourned part-heard until 18 May 2017. Orders were made by the Tribunal for the other financial manager to arrange for a clinical neuropsychologist, registered with the Australian Psychological Society College of Clinical Neuropsychologists, to undertake a "comprehensive capacity assessment" of Mrs ZEY. The order required the other financial manager to provide the appointed neuropsychologist with specific documents, including a report of Dr CG, a psychologist, and two separate statements of Mrs ZEY's assets and liabilities. The other financial manager was also directed to obtain an updated report from Mrs ZEY's current treating general practitioner.
10. Mrs ZEY had numerous hospital admissions in 2016 (6 to13 September at Wollongong Hospital, 13 September to 10 October at Bulli Hospital, 15 October to 1 November at Wollongong Hospital, 1 November to 23 November at Coledale Hospital) and 2017 (20 January to 12 March at Wollongong Hospital, 23 March to 31 March at Wollongong Hospital and 31 March to 27 April at Bulli Hospital).
11. In February 2017, while Mrs ZEY was an in-patient at Wollongong Hospital, the ninth respondent, who it will be remembered is a geriatrician employed at that hospital, made an application for a guardianship order. An urgent hearing was held. A temporary guardianship order was made on 10 February 2017 appointing the Public Guardian as Mrs ZEY's guardian with authority to make decisions about her accommodation, including authorising others to implement those decisions.
12. On 13 February 2017 the appellant lodged an appeal, in which she challenged the making of the temporary guardianship order, and a Stay Application. The Stay Application was dismissed on 16 February 2017 and the parties referred to mediation. The appellant subsequently withdrew her first appeal on 23 March 2017.
13. On 21 February 2017 the appellant lodged an application with the Tribunal seeking that the Tribunal "constituted by Members Connor, Wroth and McAlpine, recuse itself on the basis of failure to exercise jurisdiction, based on actual and/or apprehended bias". The recusal application was heard and refused on 17 May 2017.
14. On 17 March 2017 the review of the temporary guardianship order was listed for hearing. That review, which was listed before another panel, was adjourned to be heard with the other adjourned applications on 18 May 2017.
15. On 27 April 2017 Mrs ZEY was transferred from Wollongong Hospital to live in respite care. By the date of this appeal Mrs ZEY was living in permanent accommodation at an aged care facility on the south coast of NSW. Her home was rented.

Appeal provisions of the NCAT Act

1. This is an internal appeal brought under the NCAT Act. Section 80 of the Act provides: 80 Making of internal appeals (1) An appeal against an internally appealable decision may be made to an Appeal Panel by a party to the proceedings in which the decision is made. Note. Internal appeals are required to be heard by the Tribunal constituted as an Appeal Panel. See section 27 (1). (2) Any internal appeal may be made: (a) in the case of an interlocutory decision of the Tribunal at first instance - with the leave of the Appeal Panel, and (b) in the case of any other kind of decision (including an ancillary decision) of the Tribunal at first instance - as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds. (3) The Appeal Panel may: (a) decide to deal with the internal appeal by way of a new hearing if it considers that the grounds for the appeal warrant a new hearing, and (b) permit such fresh evidence, or evidence in addition to or in substitution for the evidence received by the Tribunal at first instance, to be given in the new hearing as it considers appropriate in the circumstances.
2. The Tribunal's powers on determining the appeal are found in s 81 of the NCAT Act. Section 81 is in the following terms: 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: (a) the appeal to be allowed or dismissed, (b) the decision under appeal to be confirmed, affirmed or varied, (c) the decision under appeal to be quashed or set aside, (d) the decision under appeal to be quashed or set aside and for another decision to be substituted for it, (e) the whole or any part of the case to be reconsidered by the Tribunal, either with or without further evidence, in accordance with the directions of the Appeal Panel. (2) The Appeal Panel may exercise all the functions that are conferred or imposed by this Act or other legislation on the Tribunal at first instance when confirming, affirming or varying, or making a decision in substitution for, the decision under appeal and may exercise such functions on grounds other than those relied upon at first instance.
3. The appellant submits that each of her grounds of appeal raise a question of law and accordingly her appeal is brought as of right. No challenge was raised by any respondent about the correctness of this assertion, but we are cognisant that none of the respondents who opposed the appeal are legally represented.
4. What constitutes a question of law has been addressed by the appeal panel of this Tribunal in John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd. [2014] NSWCATAP 69.
5. The principles set out by the Appeal Panel have been referred to with approval by the Supreme Court of NSW in C v W [2015] NSWSC 1774 (see also the decision of Young P in Re R [2000] NSWSC 886 at [24] and [25]).
6. The appellant did not seek leave from us to deal with any other grounds. We are satisfied that the grounds as agitated in the Amended Grounds of Appeal constitute questions of law.

The Tribunal erred in law in not dismissing the proceedings on 18 January 2017, having found they did not have sufficient evidence to make a finding about capacity.

The appellant's submissions

1. The appellant's submissions in respect of ground 1 assert first, that despite the Tribunal on 18 January 2017 having a "wealth of evidence" before it, both lay and medical including extensive evidence from Mrs ZEY, it made no finding on capacity. Secondly, the submissions note that "where the evidence is insufficient to support a finding of incapacity, the legal presumption of capacity should have led to the dismissal of all applications". This submission refers to the decision of Debelle J in Dalle-Molle (by his next friend Public Trustee) v Manos [2004] SASC 102 at [17].
2. In Dalle-Molle Debelle J was dealing with an application to discharge the appointment of a next friend by a person who had suffered brain injury in a motor vehicle accident. The question for determination by the trial Judge was whether the plaintiff had capacity to give instructions for the conduct of the litigation. His Honour reviewed a number of authorities in considering the discrete question of a person's capacity to give instructions in legal proceedings. His Honour explained: All persons who have reached the age of majority are presumed to have the capacity to enter into contracts or other transactions so that those who assert the contrary bear the onus of proof: Borthwick v Carruthers [1787] EngR 75; (1787) 1 TR 648, 99 ER 1300. The principle applies with equal force where it is alleged that a person lacks the required mental capacity: Re Cumming [1852] EngR 427; (1852) 1 De GM & G 537 at 557[1852] EngR 427; , 42 ER 660 at 668; Masterman-Lister v Brutton & Co [2002] EWCA Civ 1889; [2003] 3 All ER 162 at[17]. The plaintiff, therefore, has no onus of proof to discharge. The burden is on those who assert incapacity.

The evidence before the Tribunal

1. Because of the nature of the different applications before it the Tribunal was required to consider on a number of bases and at various dates Mrs ZEY's mental capacity and physical health: 1. to revoke in November 2016 the Deed of Enduring Guardianship and the Enduring Power of Attorney she had made in May that year; 2. to make a balanced, reasoned decision about her future living arrangements and day to day needs; and 3. to manage her financial affairs having regard to the nature of those affairs and her needs.
2. The respondents, other than the first respondent, Mrs ZEY, each submitted that she lacked capacity to make life decisions, and to manage her financial affairs. The other financial manager asserted his mother did not have the capacity at the relevant time (November 2016) to revoke the Power of Attorney granted in May that year or to revoke the Deed of Enduring Guardianship.
3. The Tribunal's reasons of 18 January 2017 disclose it had before it extensive evidence which supported the respondents' position. That evidence included Mrs ZEY's own evidence to the Tribunal. We pause to note that the composition of the panel for this hearing included a professional member well able to assess Mrs ZEY's responses to questions posed to her, expert evidence from a radiologist reporting on an MRI brain scan, a report of a clinical neuropsychologist from Bulli Hospital, Dr ZF, a reports from Dr Q a geriatrician from Wollongong Hospital, discharge summary on Mrs ZEY's discharge from Wollongong Hospital addressed to Coledale Hospital for her admission to that hospital, from the Nurse Unit Manager at Coledale Hospital, a report of a neuropsychologist, Ms T, from Coledale Hospital, and two reports from a senior consultant in Rehabilitation at the Illawarra Shoalhaven Local Health District. Each of these reports expressed opinions about Mrs ZEY's health and opined at the time of their respective reports she presented with various degrees of impaired cognitive functioning.
4. Before the Tribunal the appellant sought to challenge the conclusions drawn by treating medical specialists. She relied on a report commissioned by Mr MC, solicitor. Mr MC had arranged for Mrs ZEY to be examined by Dr CG, a psychologist. The Tribunal also had the benefit of a letter and statement from Mr MC. He is the solicitor who prepared and signed the certificate to the instruments which revoked the Power of Attorney and Deed of Enduring Guardianship. Dr CG noted that Mrs ZEY had "impaired memory function" and that she was noted to repeat material after an hour. But Dr CG opined, "She is clearly able to make decisions and give instructions". Mr MC opined that he had formed the view that Mrs ZEY was capable of making her own decisions about her financial affairs and her own person.
5. In determining to grant the adjournment the Tribunal carefully weighed and balanced the circumstances in which Mrs ZEY had been assessed, and the criticisms levelled at Dr CG's report by Dr ZF and Ms T. At [50] of the adjournment reasons the Tribunal noted that Dr ZF and Ms T had pointed out inaccuracies and misrepresentations in Dr CG's report. The Tribunal also noted that Dr ZF and Ms T's reports were consistent with other professionals involved in Mrs ZEY's care and that there were issues because their examinations had been carried out in a hospital environment, when Mrs ZEY was drowsy and irritable and results were impacted by her hearing impairment.
6. The appellant acknowledged, on 18 January 2017 when the inaccuracies in Dr CG's report were raised, that the report had been prepared "in a rush" [A/B 367].

Was the Tribunal's decision to adjourn and obtain further evidence on capacity an error of law or should the Tribunal have, in the absence of evidence of lack of capacity, presumed capacity and dismissed the applications?

1. Before we commence our consideration of this question it is relevant that we refer to a number of provisions of the Guardianship Act and the NCAT Act.
2. Section 4 sets out the general principles to be observed in respect of persons who have a disability. It provides as follows: It is the duty of everyone exercising functions under this Act with respect to persons who have disabilities to observe the following principles: (a) the welfare and interests of such persons should be given paramount consideration, (b) the freedom of decision and freedom of action of such persons should be restricted as little as possible, (c) such persons should be encouraged, as far as possible, to live a normal life in the community, (d) the views of such persons in relation to the exercise of those functions should be taken into consideration, (e) the importance of preserving the family relationships and the cultural and linguistic environments of such persons should be recognised, (f) such persons should be encouraged, as far as possible, to be self-reliant in matters relating to their personal, domestic and financial affairs, (g) such persons should be protected from neglect, abuse and exploitation, (h) the community should be encouraged to apply and promote these principles.
3. Section 3 of the Act defines a person in need of a guardian to mean "a person who, because of a disability, is totally or partially incapable of managing his or her person".
4. A person who has a disability is defined in s 3(2) of the Guardianship Act as follows: 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 the Mental Health Act 2007, 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.
5. Section 14 of the Guardianship Act is the power exercised by the Tribunal to make a guardianship order. Relevantly, it provides: (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.
6. A financial management order is defined in s 25D of the Guardianship Act. It provides as follows: In this Part: financial management order means an order referred to in section 25E, and includes an interim financial management order. protected person means a person whose estate (or part of whose estate) is subject to a financial management order that is in force.
7. Section 25E and s 25F of the Guardianship Act set out respectively the circumstances when the Tribunal can make a financial management order and the type of order that may be made. The pre-requisites to be established before such an order can be made are found in s 25G: The Tribunal may make a financial management order in respect of a person only if the Tribunal has considered the person's capability to manage his or her own affairs and is satisfied that: (a) the person is not capable of managing those affairs, and (b) there is a need for another person to manage those affairs on the person's behalf, and (c) it is in the person's best interests that the order be made.
8. It is also relevant we refer to Part 5 cl 5 of Schedule 6 the NCAT Act. That provision (including notes) is as follows: Certain principles under Guardianship Act 1987 to be applied (1) The Tribunal, when exercising its Division functions for the purposes of the Guardianship Act 1987 in relation to persons who have disabilities, is under a duty to observe the principles referred to in section 4 of that Act. Note. Section 4 of the Guardianship Act 1987 sets out principles that everyone must observe when exercising functions under that Act with respect to persons with disabilities. (2) The provisions of this clause are in addition to, and do not limit, the provisions of section 36 (5) of this Act.
9. Section 36 of the NCAT Act provides as follows: (1) The guiding principle for this Act and the procedural rules, in their application to proceedings in the Tribunal, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. (2) The Tribunal must seek to give effect to the guiding principle when it: (a) exercises any power given to it by this Act or the procedural rules, or (b) interprets any provision of this Act or the procedural rules. (3) Each of the following persons is under a duty to co-operate with the Tribunal to give effect to the guiding principle and, for that purpose, to participate in the processes of the Tribunal and to comply with directions and orders of the Tribunal: (a) a party to proceedings in the Tribunal, (b) an Australian legal practitioner or other person who is representing a party in proceedings in the Tribunal. (4) In addition, the practice and procedure of the Tribunal should be implemented so as to facilitate the resolution of the issues between the parties in such a way that the cost to the parties and the Tribunal is proportionate to the importance and complexity of the subject-matter of the proceedings. (5) However, nothing in this section requires or permits the Tribunal to exercise any functions that are conferred or imposed on it under enabling legislation in a manner that is inconsistent with the objects or principles for which that legislation provides in relation to the exercise of those functions.
10. Section 38 of the NCAT Act, and the notes thereto, is also relevant to how the proceedings were conducted in the Tribunal. It provides as follows: (1) The Tribunal may determine its own procedure in relation to any matter for which this Act or the procedural rules do not otherwise make provision. (2) 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. (3) Despite subsection (2): (a) the Tribunal must observe the rules of evidence in: (i) proceedings in exercise of its enforcement jurisdiction, and (ii) proceedings for the imposition by the Tribunal of a civil penalty in exercise of its general jurisdiction, and (b) section 128 (Privilege in respect of self-incrimination in other proceedings) of the Evidence Act 1995 is taken to apply to evidence given in proceedings in the Tribunal even when the Tribunal is not required to apply the rules of evidence in those proceedings. Note. Section 67 also prevents the compulsory disclosure of certain documents in proceedings in the Tribunal that would, in proceedings before a court, be protected from disclosure by reason of a claim of privilege (4) The Tribunal is to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms. (5) The Tribunal is to take such measures as are reasonably practicable: (a) to ensure that the parties to the proceedings before it understand the nature of the proceedings, and (b) if requested to do so - to explain to the parties any aspect of the procedure of the Tribunal, or any decision or ruling made by the Tribunal, that relates to the proceedings, and (c) to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings. (6) The Tribunal: (a) is to ensure that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue in any proceedings, and (b) may require evidence or argument to be presented orally or in writing, and (c) in the case of a hearing - may require the presentation of the respective cases of the parties before it to be limited to the periods of time that it determines are reasonably necessary for the fair and adequate presentation of the cases.

Discussion

1. First, although the appellant referred very briefly to the presumption of capacity before the Tribunal below, she did not oppose the adjournment or seek leave to appeal the adjournment order. Rather she actively participated in the discussion about who should conduct a further assessment of Mrs ZEY's capacity. Thus, it may be argued that she is now precluded from raising this issue on appeal (see University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481; 60 ALR 68, [1985] HCA 28).
2. Notwithstanding our comments above, it is clear that the legislation requires a structured exercise of discretion with the Tribunal required to consider prior to making a guardianship order whether a person has a disability in whole or part (as defined in s 3(2) of the Guardianship Act) and then to determine whether or not such a person has a need for a guardian before turning to the question of who should be the guardian.
3. Further, the legislation requires the Tribunal, prior to making a financial management order, to consider whether a person is capable of managing their financial affairs, if there is a need for another person to manage those affairs and if it is in the person's best interests to make the order.
4. This appeal is an appeal against the orders of the Tribunal made on 17 May 2017, not an application for leave to appeal the orders made on 18 January 2017. No issue was raised by any respondent about the availability of ground 1 in these circumstances. We note that the Tribunal determined, before making the guardianship order on 18 May 2017, that Mrs ZEY did have a condition that fell within the definition of a disability in whole or part. We will address the availability of ground 1 shortly. We will however, for completeness, consider the appellant's submissions in respect of the adjournment of the hearing and the obtaining of expert evidence.
5. Grounds 1, 3 and 4 do not, on their face, disclose whether the appellant's grounds related to "capacity" are limited to the making of the financial management order, or whether she challenges the Tribunal's findings in which they considered whether the pre-requisites for the making of a guardianship order were satisfied. We discern from the appellant's submissions that she directs these appeal grounds to the Tribunal's decision on 18 January 2017 (which was not subject of leave to appeal) to adjourn all applications before it. Our reading of the appellant's submissions on these appeal grounds directs us to consider how the Tribunal dealt with "capacity" in respect of the making of the guardianship order, the decision to dismiss the applications to review the revocation of the Deed of Enduring Guardianship and the Enduring Power of Attorney and make a financial management order.
6. The transcript [A/B 366-368] of 18 January 2017 makes it clear that the Tribunal, having regard to the nature of the applications before it, in determining to adjourn the application focussed primarily on Mrs ZEY's capacity to manage her financial affairs. Although the Presiding Member also referred to whether Mrs ZEY had, at the date of the hearing, the present capacity to execute a new Power of Attorney or Deed of Enduring Guardianship, that was not the principal part of Tribunal's ultimate reasoning process. The Tribunal had found at [67] that "although there was significant evidence suggesting Mrs ZEY has some cognitive incapacity there is a difference of opinion" and that it "did not have adequate material before it to make that determination" pointing out the flaws in Dr CG's report.
7. There was cogent evidence before the Tribunal at the commencement of the hearing in January that rebutted the presumption of capacity. The Tribunal, in accordance with the s 4 principles of the Guardianship Act, (and we would say procedural fairness) took into account that the period in which assessments had been conducted was a difficult time for Mrs ZEY whose cognition had fluctuated during her many hospital admissions and illness in 2016. As the appellant herself acknowledged, Dr CG's report, on which she relied, had been done "in a rush". That report was found to contain errors. In these circumstances, it would have been unsafe and procedurally unfair to Mrs ZEY for the Tribunal, at that point in the hearing, to find the presumption was rebutted. Rather, as they were empowered to do under s 36(2), the Tribunal sought to obtain the further report.
8. Our primary reasons for rejecting this ground is that no leave to appeal was lodged by the appellant against the Tribunal's orders of 18 January 2017 when it was open to her to do so. But even if we are wrong in that conclusion, it is clear from the Tribunal's reasons of 18 January 2017 that it was acting in accordance with the mandate in s 38 of the NCAT Act utilising s 36(2) and the principles in s 4 of the Guardianship Act in the circumstances it enunciated. We are not satisfied ground 1 is established.

The Tribunal did not apply the correct tests for capacity

The Tribunal reasons disclose that the Tribunal did not evaluate the evidence concerning capacity in a logical and coherent fashion, and did not resolve the conflicts in the evidence.

The appellant's submissions

1. The appellant asserts that the Tribunal, in determining to make the guardianship order, failed to consider whether Mrs ZEY was totally or partially incapable of managing her person. Rather, it is submitted the Tribunal focused on Mrs ZEY's cognitive impairment, being a disability "which precludes her from making important life decisions". The appellant submits the Tribunal's reasoning on this occasion, and in other Tribunal decisions including Appeal Panel decisions, has put a "gloss" on the words of the statute. The appellant notes: While it may be the corollary of the purpose of appointing a guardian - to make lifestyle decisions - it is not the statutory tests for determining whether there is a need for a guardian.
2. In addressing the issue of capacity for the purposes of a financial management order, the appellant asserts the Tribunal erred because there was no evidence that Mrs ZEY was not managing her financial affairs, nor was there any evidence that her assets would be lost or dissipated.
3. The appellant refers to the "decades of experience" in professional decision making that she, the Separate Representative, Mr MG, Mr MC and Mr M (solicitors) have, and that the evidence of all these lawyers was not considered to have probative force by the Tribunal. She further submits that the Tribunal did not consider Mrs ZEY's care workers' evidence or that of Mrs ZEY herself.
4. The appellant at [80]-[84] sets out her criticisms of the evidence of a neuropsychologist who conducted an assessment of Mrs ZEY when she was a hospital in-patient and compares and contrasts this evidence with the Mini Mental State scores attained by Mrs ZEY: 29/30.

The Tribunal's reasons

1. The Tribunal at [95] accurately set out the relevant statutory provisions, or threshold question to be determined prior to making a guardianship order. The Tribunal noted that a differently constituted panel had, on 10 February 2017, found Mrs ZEY had a disability, and consequently focused primarily on evidence received after that date. As the Tribunal was reviewing the temporary guardianship order, their focus was, understandably, directed to evidence about Mrs ZEY's situation after that date.
2. The Tribunal carefully summarised the expert and lay evidence before it, including Mrs ZEY's views and the statement and submissions of the Separate Representative and the Public Guardian. The evidence overwhelmingly supported the finding made by the Tribunal that Mrs ZEY had "a cognitive impairment, a disability, which prevents her making important life decisions" (reasons at [127]).

Discussion

1. There is no doubt that the Tribunal was required to find that Mrs ZEY had a disability in whole or part. The disability found was that she had a cognitive decline. Although the Tribunal did not say they found Mrs ZEY was "intellectually, physically, psychologically or sensorily disabled" that finding is inferred or encapsulated in the finding of a cognitive impairment or decline.
2. The legislation then required the Tribunal to determine whether, by virtue of the fact she had cognitive decline (which the evidence disclosed impacted on her ability to assess mobility risks, the risks of living alone in her home, to take her medication within prescribed doses and have an adequate diet), this condition meant she was totally or partially incapable of managing her person, and that she was according to s 3 (2) of the Guardianship Act "restricted in one or more major life activities to such an extent that she required supervision or social habilitation".
3. The Macquarie Dictionary defines habilitation as "to make fit or capable (as for functioning in society)".
4. While the Tribunal did not specifically repeat the words found in the definition of disability in s 3 (1), or the terms of s 14 of the Act, and in particular say that Mrs ZEY was totally or partially incapable of managing her person, and as a result of that finding she was so restricted that she required supervision or assistance to function in society, the second and third necessary findings are by inference encompassed in [127] of the Tribunal's reasons. The finding of a cognitive decline, when read in the context of the Tribunal's summary of the evidence before it, infers a finding that Mrs ZEY lacked capacity to manage her person and that she required assistance to function in society. That lack of capacity and need for assistance to function was described as an inability to make life decisions. We accept that the words prevents her "making important life decisions" are not found in the legislation but conclude that phrase indicates, in more contemporary English than the legislation, both an inability to manage her person in whole or part, and the need for supervision or assistance to function in society. The phrase important life decisions must be read in the context of the Tribunal's factual findings.
5. This ground is directed to an asserted "gloss" on the relevant statutory provisions. A careful examination of the substance of the reasons, rather than an examination construing the reasons "minutely and finely with an eye keenly attuned to the perception of error" (see Collector of Customs v Pozzolanic (1993) FCR 280 cited with approval by the plurality in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272) is required.
6. It must be remembered that the Tribunal was reviewing the earlier guardianship order when the threshold question posed by s 3(1) and s 14 had been determined by a different panel. The powers being exercised on the review of the temporary guardianship order are those found in s 25C of the Guardianship Act, namely (1) On reviewing a guardianship order under section 25 (1) or (2) (a), the Tribunal may: … (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).
7. Accordingly, we discern the Tribunal's focus was, because of the positions adopted by the appellant on the one hand, and her siblings, the Public Guardian and the Separate Representative on the other, primarily directed to assessing whether Mrs ZEY continued to have a cognitive impairment. In these circumstances, while the use of the words "important life decisions" may suggest a gloss on the terms of the statute, in particular in respect of s 3 (1), we are not satisfied that the Tribunal in this case ignored or failed to make findings on the threshold requirements necessary to determine if one of the options set out in s 25C of the Guardianship Act should be made (see IF v IG [2004] NSWADTAP 3, DL v Public Guardian and Ors [2008] NSWADTAP 6 cited with approval by Hallen AsJ (as his Honour then was) in EB & Ors v Guardianship Tribunal & Ors [2011] NSWSC 767).

The Tribunal's reasons disclose that the Tribunal did not evaluate the evidence concerning capacity in a logical and coherent fashion, and did not resolve conflicts in the evidence.

The appellant's submission

1. The appellant's submission sets out a detailed critique of the evidence before the Tribunal and refers to the question of capacity both in respect of guardianship and the financial management order.

The Tribunal's reasons

1. The Tribunal sets out in its reasons a summary of relevant medical and other evidence and submissions from 10 February 2017 when the temporary order was made. This included a summary of the evidence of an occupational therapist, the geriatrician (the Ninth Respondent), an up to date report of Dr ZF a clinical neuropsychologist, a physiotherapist, Mrs ZEY's long standing general practitioner, the report of Dr TK (as ordered by the Tribunal on 18 January 2017) the general practitioner attending Mrs ZEY's respite accommodation, as well as views expressed by Mrs ZEY, the Separate Representative, the appellant, the other financial manager, the seventh respondent, and those collectively referred to as "other family members".

Discussion and conclusions

1. The reasons clearly disclose why the Tribunal accepted and preferred the evidence of Dr TK and Dr ZF to that of Dr CG noting the circumstances in which Mrs ZEY was assessed, and the age of Dr CG's report. The Tribunal's reasons disclose it accepted the submission of the Separate Representative who had interviewed Mrs ZEY shortly prior to the review hearing. The Separate Representative said that Mrs ZEY had "little insight into physical limitations and thinks she can manage at home". The Tribunal also took into account the views expressed by the Public Guardian. Further, the Tribunal had regard to the appellant's concession that Mrs ZEY has a memory impairment, and that she was susceptible to influence, although she asserted this did not mean a lack of capacity.
2. The appellant eschewed that this ground was, in reality, a lack of adequate reasons ground, or we would say falls within the seminal decision of House v The King (1936) 55 CLR 499; [1936] HCA 40. The thrust of the submissions appears to us to be that the Tribunal did not provide adequate reasons for its decision and/or that it gave inappropriate weight to Dr TK's report and insufficient or no weight to the very limited evidence of the homecare workers or the evidence of Mr MC or Mr MG.
3. It is relevant to refer to the statement of principle of the plurality in House v The King. Their Honours explained: The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so.
4. The reasons in respect of Mrs ZEY's capacity to manage her financial affairs do not understandably repeat all the Tribunal discussed when considering Mrs ZEY's cognitive impairment in the context of the review of the guardianship order. The Tribunal's concerns about how Mr MC assessed Mrs ZEY's capacity is discussed in their 18 January 2017 reasons. The Tribunal rejected reliance on Mr MC's evidence in May 2017 because it was out of date.
5. The Tribunal took into account the evidence of the Separate Representative who had interviewed Mrs ZEY and had formed the view that she had no realistic appreciation of home care costs or her financial affairs when "taken out of her comfort zone" (see reasons at [199]). The Tribunal weighed and assessed the differing opinions of Dr TK and Dr CG about Mrs ZEY's capacity to manage her financial affairs. The Tribunal noted the professional reports before it and accepted and preferred the evidence of Dr TK because first, it was the most recent report and, secondly, it was the only report which specifically addressed Mrs ZEY's capacity to manage her financial affairs.
6. The Tribunal also referred to the appellant's position, and noted the evidence of the seventh respondent who had taken a year off work to support Mrs ZEY and her late husband before his death in 2016.
7. It is important to remember the principles espoused by superior courts in respect of reasons. The relevant principles are set out in the reasons of McColl JA in Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 at [56]-[65] (see also Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33).
8. We discern that the evidence accepted by the Tribunal as cogent and relevant to its determination is identified, and the reasons for rejecting the evidence of Dr CG and the material referred to by the appellant are adequately explained. The decision reached was one open to the Tribunal in the exercise of its discretion. We are not satisfied ground 4 is established.

The Tribunal relied upon the report of clinical psychologist Ms TK in circumstances where: (a) the Tribunal limited the information available to Ms TK (b) the Tribunal led Ms TK to believe that Mrs ZEY's understanding of events was misconceived (c) the Tribunal did not require that the expert witness code of conduct be brought to Ms TK attention and (d) Ms TK's report did not adequately or reasonably address the issues.

The appellant's submissions

1. Ground 5 is directed to asserted error by the Tribunal in relying on the report of Dr TK. The first criticism raised by the appellant is that Dr TK was provided with limited information. That aspect of the ground may be dealt with shortly.

Discussion and conclusions

1. The Tribunal had a large amount of material before it. The Tribunal properly focussed on relevant material to be provided to a clinical neuropsychologist to provide an up to date assessment and report on Mrs ZEY's cognition. The appellant conceded at the hearing on 18 January 2017 that it would be unduly expensive and unrealistic to provide all the material on the Tribunal's file to the psychologist. Significantly, the Tribunal determined that it would not include in the material to be provided to the psychologist appointed to conduct the assessment the critique, which had been prepared by the hospital psychologists of Dr CG's report, rather the material would be limited to actual assessments conducted on Mrs ZEY. To overcome the appellant's concerns in respect of discrepancies between two statements of financial circumstances before it the Tribunal permitted both to be provided to the appointed neuropsychologist. We are satisfied that the Tribunal's approach was proportionate, sought to contain costs, and was in accordance with s 36 and s 38 of the NCAT Act. We do not accept this part of the ground is established.
2. The second aspect of the challenge to Dr TK's report is the assertion that she was misled by statements in the Tribunal's reasons of 18 January 2017 which formed part of the material supplied to her. In particular, it is asserted Dr TK was misled by statements that Mrs ZEY's understanding of events was misconceived.
3. Although not particularised in the grounds of appeal, in the appellant's submissions she is critical of the Tribunal's summary of matters before it in its January reasons relating to Mrs ZEY's cheque books, and who was responsible for her remaining in Coledale Hospital.
4. At [47] of the reasons for decision on 18 January 2017 the Tribunal said: It appears to us that [Mrs ZEY] has unfortunately developed some misconceptions about what has taken place, possibly as a result of some cognitive impairment and the poor mental flexibility noted by Dr ZF. There was no evidence before us to suggest that [other financial manager] or [the seventh respondent] have misappropriated any of [Mrs ZEY's] funds, or that they wish to take advantage of her. [Mrs ZEY's] change of attitude towards her son and daughter-in-law appears to be due to her erroneous belief that they prevented her from being discharged from Coledale Hospital. It is clear from the 11 November 2016 report of [Dr Q] that the hospital was very aware that, as her enduring guardian, [the other financial manager] was unable to prevent Mrs ZEY from leaving hospital and that the hospital staff encouraged Mrs ZEY to stay pursuant to their duty of care because they did not believe that Mrs ZEY was 'safe to leave the hospital unsupervised'.
5. The Tribunal in forming its conclusion about Mrs ZEY leaving hospital relied on a report of Dr Q, Senior Consultant in Rehabilitation Medicine. His report cogently points out a number of matters of concern about Mrs ZEY including her incontinence and inability to manage this, her inability to negotiate stairs, and forgetting to use a walker, as well as his conversation with her general practitioner who expressed concerns about her inappropriate use of medications notwithstanding provision of a Webster pack, and the storing or hoarding of endone. He noted "We (the hospital) are of the opinion that we have a duty of care, and that Mrs ZEY is not safe to leave the hospital unsupervised". He also noted a staff member at NCAT had advised that enduring guardians do not have the authority to prevent people visiting Mrs ZEY in hospital, and also that no physical or medical restraint can be applied without "the NCAT-Guardianship being contacted and approving such a request". We take this latter statement to refer to the need to have the Tribunal made a guardianship order with or without coercive powers.
6. Further, there was nothing inaccurate about the Tribunal's statement that there was no evidence before it that either the other financial manager, or the seventh respondent had misappropriated Mrs ZEY's funds, or that they wished to take advantage of her. Similarly, the transcript reference provided in the appellant's summary does not disclose any improper dealings by the other financial manager with Mrs ZEY's cheque book.
7. The reasons for decision of 18 January 2017 was only one of a number of documents supplied to Dr TK. Dr TK saw Mrs ZEY on three occasions and her report discloses she conducted a battery of tests. Dr TK documented and reported in detail her own interviews with Mrs ZEY setting out the information provided to her. Under the heading "Opinions and Recommendations" she opined: Mrs ZEY presents with impairments in her memory, language, visuospatial skills and executive functioning in the context of a decline in activities of daily living, and MRI brain scan evidence of cerebral atrophy, is most consistent with a diagnosis of Alzheimer's Dementia.
8. Later in her report Dr TK noted: Cognitive impairment of this nature is not a normal part of the ageing process and this assessment was conducted and scored with the use of age-appropriate normative data. [Mrs ZEY] has a hearing impairment and although she was not wearing her hearing aids on the first occasion of assessment her performance did not appear to be affected as she performed well on that day when required to encode and recall verbal material. In my opinion [Mrs ZEY's] current cognitive profile cannot be adequately explained by normal ageing, depressed mood, stress or sensory impairment.
9. An overall reading of Dr TK's report does not indicate that she placed any reliance on particular statements in the reasons of 18 January 2017. Rather, her report discloses a careful and extensive history taking from Mrs ZEY, reliance on medical records and her own independent testing. Ground 4 insofar as it relates to the Tribunal providing misleading evidence to Dr TK is not established. Nor does a reading of Dr TK's report support the assertion she did not address the issues. To the contrary, Dr TK conducted a thorough assessment on three different days, she took into account Mrs ZEY's sensory disability and addressed her capacity to "reason and weigh the merits of competing choices, and her lack of insight into her own care arrangements". She also addressed Mrs ZEY's capacity to make complex financial decisions and opined she lacked the capacity to do so and to conduct transactions required.
10. The penultimate challenge in ground 4 to Dr TK's report is the assertion that there was error by the Tribunal in failing to bring the Expert Code of Conduct to the attention of Dr TK.
11. The Expert Code of Conduct in force at the time of this appeal, is set out in the now repealed Expert Witness Procedural Direction (the PD) authorised by the President on 7 February 2014. The code is contained in the PD and is based on the code found in the Uniform Civil Procedure Rules 2005 (NSW). We accept that the Tribunal did not include any direction about the PD or the code when orders were made for the other financial manager to request a clinical neuropsychologist to prepare a report. We note the appellant did not challenge the admissibility of the Dr TK's report on this basis at the hearing or the weight to be attributed to it.
12. It is unfortunate that the Tribunal's order did not draw the first financial manager or the expert's attention to the PD. However, although there was non-compliance with the PD, the Tribunal retained discretion to admit the report. The situation in respect of expert evidence when the rules of evidence do not apply in the Tribunal is fully canvassed in Hancock v East Coast Timber Products Pty Limited (2011) 80 NSWLR 43 at [82] and [83]; [2011] NSWCA 11. The principles in that case have been summarised as follows: (a) where the rules of evidence do not apply, the question of the acceptability of expert evidence is always a question of weight not admissibility - [83]; (b) where the rules of evidence apply, an expert report ought not be rejected only because there has not been strict compliance with each and every feature referred to in Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305 - [82] - or each and every feature in Procedural Direction 3; (c) in all cases, the Tribunal is required to be satisfied that the expert evidence provides a satisfactory basis upon which the Tribunal can make its findings - [82] - and substantial compliance with the requirements of the expert code of conduct assists in ensuring that such a satisfactory basis exists.
13. See also Allen v TriCare (Hastings) Ltd [2016] NSWCATAP 216.
14. We think the circumstances in which Dr TK's report was obtained are closely akin to the circumstances in Lisle v Price [2017] NSWCATAP 208. There the Appeal Panel dealt with an appeal involving a consumer claim (where the rules of evidence do not apply). The Tribunal referred to cl 3 and 4 of the PD. Those clauses provide as follows: 3. The Tribunal may excuse an expert witness or any other person from complying with this Procedural Direction before or after the time for compliance. 4. Nothing in this Procedural Direction prevents the Tribunal from giving any directions concerning expert witnesses or expert evidence that the Tribunal considers appropriate in any particular proceedings before the Tribunal.
15. In Lisle the Appeal Panel explained: While the Tribunal did not spell out in its reasons why it excused Price from compliance in this case, it is, we think, obvious that insisting on strict compliance with PD3 in cases of the present kind would often be oppressive and not proportionate to the nature of the claim and the nature of the dispute. The NCAT Act has as a core goal that the Tribunal 'resolve the real issues in proceedings justly, quickly, cheaply and with as little formality as possible' (s 3 (d)). This goal is amplified by the 'guiding principles to be applied to practice and procedure' set out in s 36. For instance, the Tribunal's practices and procedures are to be administered 'in such a way that the cost to the parties and the Tribunal is proportionate to the importance and complexity of the subject-matter of the proceedings' (s 36(4)).
16. Here, although the Tribunal was dealing with the sensitive and important issue of Mrs ZEY's asserted cognitive impairment and her capacity to manage her financial affairs, it was bound to focus on the real issues in dispute in a timely and cost effective manner. Just as in Lisle, the Tribunal did not spell out why it excused Dr TK from compliance with the PD. However, we find it would have been oppressive to reject Dr TK's report on that basis, particularly in circumstances where it had admitted Dr CG's report without any evidence she had complied with the PD. More importantly, if the admission of the report had been rejected on the basis of non-compliance with the PD, Mrs ZEY's best interests would not have been served by further delay if non-compliance required an adjournment, nor would the Tribunal have had relevant and cogent evidence before it. It follows we are not satisfied that this challenge in ground 4 is established.
17. Finally, for the reasons given above, we find no merit in the aspect of ground 4 which asserts that Dr TK's report did not adequately or reasonably address the issues.

The Tribunal erred in not disqualifying themselves for bias: (a) for the reasons set out in the recusal application of 21 February 2017 and in further submissions of 17 May 2017 (b) for relying upon their own observations of conduct outside the hearing on 18 January 2017, in circumstances where (i) those observations could have no probative force or effect; and (ii) the inferences drawn where not put to the persons concerned.

The appellant's submissions

1. In support of this ground the appellant relies on the statements of principle set out by the High Court in British American Tobacco Australian Services Ltd v Laurie [2011] 242 CLR 283. There the High Court sets out the established principles to be applied when considering actual or apprehended bias. The Tribunal's reasons also set out the relevant principles by reference to authority in relation to actual and apprehended bias (see Li v Minister for Immigration and Multicultural Affairs (2000) 96 FCR 125; McGovern v Kur-ring-gai Council [2008] NSWCA 209, Ebner v The Official Trustee in Bankruptcy (2000) 205 CLR 337 [2000] HCA 63).
2. The appellant relies on her recusal application lodged on 21 February 2017 and her submissions in support of that application, together with her submissions in support of this appeal. As earlier recorded, we note that the recusal application relies on apprehended bias, but in her oral submission to us, the appellant made it clear that this ground relies on asserted actual bias by the Tribunal below.
3. The appellant asserts that the Tribunal member's reasons of 18 January 2017 and order 2.1 of orders demonstrate a "pre-conceived opinion of the case" by limiting the material given to the expert to be appointed (ultimately Dr TK), to take into account erroneous and misleading findings in the reasons, give opinions on irrelevant matters, and to accept instructions from a party adverse to Mrs ZEY's interests.
4. The appellant expressed concern in her submissions that the expert was not provided with a MRI obtained in 2012 in circumstances in which she asserts a 2016 MRI did not disclose any significant change. She submits the failure of the Tribunal to refer in its reasons to the evidence of a carer who had been attending Mrs ZEY six weeks prior to the hearing would "encourage an expert not to accept [Mrs ZEY] as a reliable historian".
5. The appellant is critical of the Tribunal in providing the two different Statements of Assets and Liabilities to the expert and asserts "providing two different statements of assets and liabilities lends colour to the suggestion of complexity". The appellant supports her assertion of bias as she says the order required the expert to comment on Mrs ZEY's capacity to make a further enduring guardianship appointment or enduring power of attorney and these matters were not issues in the proceedings. Criticism is also levelled at the Tribunal for failing to mention in its reasons the evidence of Mr MG, solicitor, with the consequent result that the expert did not know his opinion.
6. The appellant asserts that there was error in the Tribunal's reasons [59]-[62] when it recorded Mr MC, a solicitor who briefed the appellant, and who arranged with the appellant that he would see Mrs ZEY, had said he did not read documents provided by Coledale Hospital. That submission does not accurately represent the Tribunal's reasons of 18 January 2017. The Tribunal at [62] says "there is no evidence [Mr MC] adhered to the Guidelines by checking with medical staff about her capacity", and that it would have been prudent for him to do so particularly in circumstances where he knew there was a difference of opinion between family members.
7. The appellant asserts bias by the Tribunal in respect of its conclusions about the then Separate Representative. These criticisms include rejection of the Separate Representative's submissions in circumstances where she had met Mrs ZEY on two occasions prior to the 18 January 2017 hearing, criticism that the Separate Representative had only consulted the appellant and not other family members, in particular, the other financial manager and the seventh respondent who had a long association with Mrs ZEY.
8. The appellant also asserts that the Tribunal's bias is evident in their decision to appoint the other financial manager as the person to obtain the expert report and that the Separate Representative should have had that responsibility.

Discussion

1. The principles to be applied in determining whether a decision maker demonstrates actual bias are explained by Gleeson JA in the NSW Court of Appeal's decision in Reid v Commercial Club (Albury) [2014] NSWCA 98. His Honour set out the relevant principles as follows: A finding of actual bias is a grave matter: Sun v Minister for Immigration and Ethnic Affairs (1997) (Sun v Minister) 81 FCR 71 at 127 per Burchett J. Authority requires that an allegation of actual bias must be distinctly made and clearly proved; that such a finding should not be made lightly; and that cogent evidence is required: South Western Sydney Area Health Services v Edmonds [2007] NSWCA 16 at [97] and the authorities there cited. Where the issue is actual bias in the form of prejudgment, the appellant had to establish that the primary judge was "so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented": Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; 205 CLR 507 at [72] per Gleeson CJ and Gummow J (Hayne J agreeing at [176]). See also Kirby J at [127]. As Gleeson CJ and Gummow J observed in that case at [71]: "The question is not whether a decision-maker's mind is blank; it is whether it is open to persuasion." In the same case, Hayne J noted at [185] the several distinct elements underlying the assertion that a decision-maker has prejudged or will prejudge an issue, or the assertion that there is a real likelihood that a reasonable observer might reach that conclusion. The first is the contention that the decision-maker has an opinion on a relevant aspect of the matter in issue in the particular case. The second is the contention that the decision-maker will apply that opinion to the matter in issue. The third is the contention that a decision-maker will do so without giving the matter fresh consideration in light of whatever may be the facts and arguments relevant to the particular case. His Honour observed at [186] that allegations of actual bias through prejudgment often fail at the third step he had identified. This was because notwithstanding whatever expression of preconceived opinions by the decision-maker, it does not follow that the evidence will be disregarded. The test of actual bias in the form of prejudgment requires an assessment of the state of mind of the judge in question: Michael Wilson & Partners Limited v Nicholls & Others [2011] HCA 48; 244 CLR 427 at 437 [33]. However, actual bias need not be confined to an intentional state of mind. Bias may be subconscious, provided it is real: Bilgin v Minister for Immigration and Multicultural Affairs (Bilgin v Minister) (1997) 149 ALR 281 at 289-290 per Finkelstein J; Sun v Minister at 127 per Burchett J and 135 per North J. As Finkelstein J said in Bilgin v Minister at 290: "The wrong involved is the failure to decide a case impartially. Whether that failure was deliberate or not should be beside the point insofar as the validity of the decision is concerned." The circumstances in which actual bias can be demonstrated solely from the published reasons for decision must be considered to be rare and exceptional: SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2000] FCA 668 at [38] per von Doussa J, who explained: "... Reasons for decision reflect conclusions reached at the end of the decision making process, and if the decision is against the party complaining, the expression of adverse findings on credit and fact are an inevitable part of the expression of the reasons. The mere fact of adverse findings at the end of the matter give rise to no inference as to the state of mind of the decision maker before and whilst the matter was under consideration, nor of prejudgment of the issues that fell for decision. Even where it is possible to show that the adverse findings or some of them are contrary to the evidence or unreasonable, or that the reasoning process is hopelessly flawed, that without more is unlikely to demonstrate that the decision maker had embarked on the case with a closed mind, not open to persuasion. However, where the party alleging actual bias can point not only to an adverse judgment containing demonstrable error but also to conduct by the decision maker antithetical to that party's interests such as a hostile attitude throughout the hearing or ... an inference of actual bias by prejudgment might then be more readily drawn. But even then the circumstances are likely to be rare and exceptional that the combination of factors and circumstances will clearly prove actual bias ." [Citations omitted.]
2. We have already discussed and found no merit in the appellant's assertions that the Tribunal was in error in limiting the material to be supplied to the expert neuropsychologist. Nor do we find that the material supplied demonstrates a pre-conceived opinion of the case. To the contrary, the Tribunal's list of material to be given to the expert was fair and objective. The Tribunal did not order the expert be provided with criticisms of Dr CG's report, rather the expert received medical records including reports, and the report of Dr CG which the appellant advocated supported her position that Mrs ZEY had capacity to make her own decisions about where she should live and to manage her financial affairs. We do not accept the appellant's contention that the provision of the two financial statements was, or did, "colour the complexity" or cause confusion to the expert. Both statements were provided when the appellant challenged the accuracy of one of the statements. We have early rejected the appellant's contention that parts of the Tribunal's reasons in respect of the adjournment on the evidence before them were erroneous or misleading
3. The transcript of 18 May 2017 (A/B 398 and 400) discloses that the Tribunal enunciated for the first time it had formed a view that the Separate Representative had aligned herself with the appellant because the members had observed them talking outside a coffee shop during a break in the proceedings, and because the Separate Representative had not interviewed or consulted the appellant's siblings.
4. At [64] of the reasons dated 18 January 2017 the Tribunal said: The role of a separate representative before the Tribunal is to present the views of the person wherever possible, and also other relevant information and evidence to assist the Tribunal in making a decision. It is not clear to us on what basis [Ms O] formed the definitive view that [Mrs ZEY] had capacity to revoke the instruments in November 2016 given that at that time she had not met [Mrs ZEY]. We are also concerned by [Ms O's] apparent 'alignment' with [the appellant] both prior to and during the hearing process, which casts doubt on her objectivity in relation to what is in [Mrs ZEY's] best interest.[Ms O] gave evidence that she had spoken to [the appellant] prior to submitting her report, but not to any other family members. [Ms O] stated that she had consciously decided to approach her role in this manner because of the number of family members involved and to rely on written documents provided from other family members, rather than speaking to them This seemed an unusual approach given that until relatively recently [Mrs ZEY] has had limited contact with [the appellant] but longstanding regular contact with [the other financial manager] and his wife[the seventh respondent], who have been providing support for many years.
5. The duty upon a judge (or we would say a Tribunal) to draw to the attention of a person about whom the judge has formed an adverse view based on conduct, outside the witness box, when such view may impact adversely against that person is cogently explained by the plurality of the High Court in Kuhl v Zurick Financial Services Australia Ltd (2011) 243 CLR 361 at [69]. There the plurality said: The lack of warning. The second condition is more controversial. Judges are not entitled to inform themselves before taking judicial notice without giving the parties an opportunity to comment on the material referred to[55]. Judges are not entitled to criticise expert witnesses by reference to expert material not in evidence without those witnesses having an opportunity to respond [56]. Judges are entitled to take into account the demeanour of party-witnesses, not only in the witness box, but while they enter and leave it, and also while they are sitting in court before and after giving evidence; but observations by the judge of conduct outside the witness box which the representatives of the parties may not have observed, should, if they are influential in the result, be drawn to the attention of the parties so that they may have an opportunity of dealing with the problem[57]. There is thus no general duty on a judge to advise the representatives of the parties of what they can see for themselves, namely the demeanour of the party-witness in the witness box. Nor, a fortiori, is there a duty on a judge to advise the parties that the party-witness's evidence is not adequate to make out the case of that party-witness. But there was held to be a breach of the duty of procedural fairness where a party claiming compensation for injury was held to have feigned or exaggerated her symptoms although this had not been suggested in cross-examination and the respondent disavowed that possibility[58].[foot-notes omitted]
6. As we have observed, the Tribunal did explain the basis on which it had referred to "alignment" of the Separate Representative in its reasons of 18 January 2017 at the resumed hearing on 18 May 2017. The Separate Representative responded to the observations and facts relied on by the Tribunal in support of their expressed view she had aligned her position with the appellant.
7. Although the Separate Representative was not herself a party, and the Tribunal's views about her could not directly affect the outcome of the proceedings, her role was a crucial one to convey Mrs ZEY's views and provide an independent assessment of all of the evidence to the Tribunal. Consequently, any adverse opinions derived from observations of the panel of Separate Representative's conduct could have had an indirect effect on the outcome of the proceedings. It is indeed regrettable that the Tribunal did not raise its concerns about its perception of alignment by the Separate Representative and the appellant, and the reasons for that perception, at the hearing on 18 January 2017. If they had done so it would have afforded the Separate Representative the opportunity to respond to the Tribunal in a timely manner, rather than the Tribunal proceeding to set out its criticisms of her conduct in its reasons.
8. However, albeit it belatedly, the Tribunal did permit a response to its criticisms to be made by the Separate Representative on 18 May 2017. Significantly, at that time the Separate Representative, who had at least one basis for supporting the recusal application, expressly rejected the appellant's application that the Tribunal members should recuse themselves.
9. We note that in EB & Ors v Guardianship Tribunal & Ors, Hallen AsJ conducts an extensive examination of procedural fairness, particularly in the context of guardianship proceeding at [156] to [180]. His Honour's exposition of the law and the consequences of a breach of procedural fairness is apposite to this ground of appeal.
10. Here, there was a breach of the requirement to put the Tribunal's out of hearing observations to the Separate Representative to enable her to answer the criticisms levelled at her resulting in a finding of "alignment". Although this potentially constitutes appealable error we are not directed to any basis on which it can be demonstrated that this error could have made any difference to the ultimate outcome or, importantly, that the Tribunal had closed its mind and pre-judged the outcome of the applications. We also think it relevant to our consideration of this topic that the Separate Representative, although clearly aggrieved by the Tribunal's conclusions at [64] of its 18 January 2017 reasons, did not support the recusal application.
11. The second aspect of this ground relates to the Tribunal requiring the other financial manager to seek out a neuropsychologist to assess and provide a report about Mrs ZEY's cognitive capacity. The appellant submits this task should have been assigned to the Separate Representative and not a party to the proceedings.
12. The step taken by the Tribunal in this case was an unusual one. It is not a matter of controversy that the Tribunal does not itself have a budget to commission expert reports and generally relies on the parties before it to adduce relevant evidence. It may, however, obtain information and reports from treating practitioners by direct contact with such practitioners or from reports sourced by the Tribunal's registry officers In this respect, the Tribunal adopts, as it is empowered to in the legislation, a quasi-inquisitorial rather than a strict adversarial approach (see Carew v Protective Commissioner and Ors [2005] NSWADTAP 13).
13. We agree that it would generally in similar circumstances be appropriate for the Separate Representative, rather than the other financial manager, to have been directed by the Tribunal to seek out an appropriately qualified neuropsychologist to read the documents specified by the Tribunal, to conduct an assessment of Mrs ZEY's cognition, and prepare a report. However, the Tribunal's reasons disclose why it assigned this task to the other financial manager. The Tribunal found that the other financial manager was open to supporting Mrs ZEY's view that she wished to stay in her own home if services could be provided. Importantly, as the Tribunal notes at [76] of its reasons of 17 May 2017, neither the Separate Representative or the appellant raised any objection to the task being assigned to the other financial manager. The appellant did not say how the task of the engagement of the expert demonstrated actual or apprehended bias on the Tribunal's part.
14. The ordering and obtaining of the report by the other financial manager requires an assessment of whether a fair minded person would reasonably apprehend the Tribunal could not determine the case impartially. As the plurality in Ebner v The Official Trustee in Bankruptcy [2000] 205 CLR 337; 176 ALR 644; 75 ALJR 277, explain at [8]: The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits.
15. While we consider it would have been prudent to assign the task of obtaining the report to the Separate Representative, we are not satisfied that the appellant has demonstrated how that failure has led to the case being determined other than on its merits. Nor has the appellant demonstrated any evidence to support a conclusion of actual bias by the Tribunal. We conclude ground 5 is not established.

The Tribunal acted unreasonably, in that no reasonable Tribunal, seeking to act in a way that was fair and just and according to the substantial justice and merits of the case, would have made orders appointing the [other financial manager]and the[ first financial manager] financial managers of the estate of [Mrs ZEY]

The appellant's submissions

1. The appellant's summary sets out why she asserts the Tribunal determined that the first financial manager and other financial manager should be appointed as financial managers of Mrs ZEY's estate. These were: 1. that the proposed managers said they would not obstruct the decision of the Public Guardian in relation to future housing for Mrs ZEY's, 2. that the appointment was consistent with Mrs ZEY's expressed wishes, and 3. their appointment would result in smaller fees.
2. The appellant expresses her concern that the first and other financial manager did not support Mrs ZEY living in her own home. She asserts that this is because the financial managers do not support Mrs ZEY staying in her own home or having services as this would diminish her estate, and as her beneficiaries they had a conflict of interest. At [113] to [115] she submits: Alternatively, she could live uncomfortably in residential aged care facility selected for her, but more cheaply, to the benefit of her estate. There is no virtue in frugality where the person has a short life expectancy and comfortable means.
3. The appellant concludes her submissions noting at [120]: Even if it is not possible to identify a precise error committed by the Tribunal, error can be inferred from the result, such that the Tribunal has not discharged its function and so acted beyond jurisdiction; Minister v Immigration v Li (2011) 297 ALR 225.

The Tribunal's reasons

1. The Tribunal's reasons disclose a careful recitation of the evidence concerning Mrs ZEY's inability to manage her financial affairs independently. This recitation included the evidence of Dr TK at her interviews with Mrs ZEY, the seventh respondent's evidence about her assistance to her mother in law and her vulnerability to "cold callers". At the hearing the seventh respondent gave evidence of Mrs ZEY entering into a contract with an NBN provider following an unsolicited approach from the provider.
2. The Tribunal noted at [194] decisions would need to be made once the Public Guardian determined where Mrs ZEY should live, including if it was feasible for her to remain living at home safely. The Tribunal explained that consideration would need to be given to Mrs ZEY's wish that her home not be sold. The Tribunal also noted that the appellant proposed that Mrs ZEY would sell her "future interest in the house" to her, but remain living in it (presumably pursuant to a life tenancy). The Tribunal noted the need for an arrangement to be made regarding Mrs ZEY's house either by sale or leasing, and the potential need to enter into contracts for residential accommodation.

Discussion and conclusions

1. In determining to appoint the financial managers the Tribunal referred to the principles discussed in Holt & Anor v Protective Commissioner (1993) 31 NSWLR 227 as expanded by Lindsay J in M v M [2013] NSWSC 1495 as well as the discussion of Hallen AsJ (as his Honour then was) in AMAM; re Sam [2011] NSWSC 503 at 34.
2. In reaching its decision to appoint the financial managers the Tribunal exercised a broad, but structured, discretion which was required to be exercised judicially. It took into account the other financial manager's expressed concerns and need to assess appropriate residential care facilities. It also had regard to the family member respondents' evidence that indicated a willingness to consider the appellant's life interest arrangement in Mrs ZEY's home. The Tribunal, accurately we would say, explained that the appointment of the first financial manager and other financial manager was consistent with Mrs ZEY's expressed wish to the Separate Representative and her own choice when she appointed them her attorneys in May 2016. The Tribunal also noted appointing family members would result in a reduction in fees payable to the NSW Trustee, and that family members would be able to respond more quickly to Mrs ZEY's needs. Each of these matters was a relevant consideration for the Tribunal in the exercise of its discretion.
3. At [215] of the reasons the Tribunal discussed and made findings on the issue of family members having a conflict of interest. The Tribunal noted that the family member respondents' concerns about the sustainability of 24 hour home care, costs of paid care workers while Mrs ZEY was a hospital in-patient, and provision of a mobile phone which she was unable to operate was appropriate and concluded potential inheritance of the siblings did not exclude family members from being appointed.
4. In Minister for Immigration v Li (2013) 249 CLR 332; 297 ALR 225 the plurality referred, in the context of administrative review, to the concept of "unreasonableness". Their Honours explained: In Wednesbury Corporation, Lord Greene MR observed that the word "unreasonable" in administrative law was used to encompass failure by a decision-maker to obey rules requiring proper application of the law, consideration of mandatory relevant matters and exclusion from consideration of irrelevant matters[73]: "If he does not obey those rules, he may truly be said, and often is said, to be acting 'unreasonably'." That kind of unreasonableness may be taken to encompass unreasonableness from which an undisclosed underlying error may be inferred[74].[foot-notes omitted].
5. The plurality went on to expand the situation where unreasonableness would vitiate a decision but noting at [30]: The requirement of reasonableness is not a vehicle for challenging a decision on the basis that the decision-maker has given insufficient or excessive consideration to some matters or has made an evaluative judgment with which a court disagrees even though that judgment is rationally open to the decision-maker. Gleeson CJ and McHugh J made the point in Eshetu that the characterisation of somebody's reasoning as illogical or unreasonable, as an emphatic way of expressing disagreement with it, "may have no particular legal consequence."[79]
6. Nothing in the appellant's ground or submissions on this ground evinces the type of unreasonableness that would justify the setting aside of the Tribunal's orders. To the contrary, although the outcome was not the one for which the appellant contended, the Tribunal's reasons disclose a careful balancing of all relevant matters was undertaken before determining who to appoint as financial managers of Mrs ZEY's estate.
7. In passing we note at the appeal it was clear there was still conflict between the parties over sums paid to care workers while Mrs ZEY was in hospital. We note that the evidence before us disclosed that the appellant had sent accounts direct to Mrs ZEY, rather than to the financial managers, and the financial managers had rejected payment of the accounts on the basis that they were not supported by invoices. The financial managers submitted the accounts could not be approved in their present state as part of their financial plan for Mrs ZEY to be approved by the NSW Trustee without supporting invoices. It is hoped with the conclusion of this appeal and the unfortunate and sad conflict it has generated between the appellant on the one hand and Mrs ZEY's other adult children on the other, that matter of the accounts, which is capable of swift resolution by the provision of invoices to the financial managers, may be resolved.

The Tribunal erred by renewing a guardianship order that: (a) was made in denial of procedural fairness (b) in circumstances that demonstrated bias; and (c) had lapsed.

1. This ground is argued on two bases by the appellant. First, she argues that because there was a lack of procedural fairness exhibited by the panel who made the temporary guardianship order on 10 February 2017 that temporary order was a nullity. Therefore, she submits the order being a nullity, there was nothing for the Tribunal to review in May 2017. Secondly, she submits, as a matter of statutory construction, a temporary order is akin to an urgent interlocutory injunction, that it ceases to have effect on its expiration date, and is not amenable to review as are continuing guardianship orders.
2. In support of the first argument the appellant asserts that some documents were withheld from the parties at the hearing of the temporary guardianship application on 10 February 2017 and that there was "manifestly no proper reason to withhold those documents at the time of the hearing or to mislead the parties as to the urgency of the matter". No documents are identified in the appellant's submissions, nor does she say how any document that was not before the Tribunal could have impacted on the decision made on 10 February 2017. The appellant asserts the panel that heard this matter were in error in determining that the risk to the subject person, and the need to protect the person's welfare and interests outweighed matters of procedural fairness, because they did not identify the risk in this case.
3. We do not accept there is merit in the appellant's submissions in support of the first articulated basis of this ground. First, the appellant had the opportunity to and did appeal against the decision made on 10 February 2017 and withdrew her appeal. The order of 10 February 2017 is not directly the subject of this appeal. This factor of itself is in our view sufficient to dispose of the first challenge to this ground.
4. However, if we are wrong about that, we are satisfied that the Tribunal in its reasons demonstrated there was a real risk to Mrs ZEY's safety on the evidence before it. This was identified in the Tribunal's reasons by reference to "serious safety issues in the home environment that could place her [Mrs ZEY's] health and best interests at risk", in circumstances where she was actively seeking to leave the hospital and there was evidence that she had "self-discharged against medical advice in the past".
5. The second challenge in this ground is one based on statutory construction. We acknowledge that the appellant in her oral submissions appropriately acknowledged that the statutory provisions concerning temporary guardianship orders, and the review provisions of the Guardianship Act are actually or potentially confusing and the correct construction is open to debate. The appellant was unable to direct us to any authorities dealing with temporary guardianship orders relevant to this aspect of the ground. We accept that this ground raises interpretation issues of some complexity and the appellant's submissions are properly raised in support of this part of ground 7. This aspect of the ground potentially raises an issue of importance in respect of all temporary guardianship orders made by NCAT.
6. It is also important in considering the statute that we refer to the chronology of the proceedings: 1. The application for making of a guardianship order on an urgent basis was listed before another panel of the Tribunal on 10 February 2017 and a temporary guardianship order for a period of 30 days made on that day. 2. Notices advising a review of that order would be conducted were sent to the parties prior to the expiration of the temporary guardianship order. 3. A different panel commenced hearing the review of the temporary guardianship order on 17 March 2017 and adjourned the application to 17 May 2017 to be heard with the other applications.
7. It is appropriate in dealing with this ground that we examine the relevant provisions of the Guardianship Act.
8. Section 3 of the Guardianship Act defines a "guardianship order" as follows: guardianship order means an order referred to in section 14.
9. Section 14 provides as follows: (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.
10. Section 16 of the Guardianship Act sets out the type of orders the Tribunal may make in determining an application for a guardianship order. Section 16(1) (2) and (2A) (and the notes thereto) are as follows: (1) A guardianship order: (a) shall appoint a person who is of or above the age of 18 years as the guardian of the person of the person under guardianship, (b) shall specify whether the order is continuing or temporary, (c) shall specify whether the order is plenary or limited, and (d) may be made subject to such conditions as the Tribunal considers appropriate to specify in the order. (2) A limited guardianship order shall specify: (a) the extent (if any) to which the guardian shall have custody of the person under guardianship, and (b) which of the functions of a guardian the guardian shall have in respect of the person under guardianship. (2A) A guardianship order may contain a statement to the effect that the order will not be reviewed under section 25 (2) (b) at the expiration of the period for which it has effect, but only if the Tribunal is satisfied that, in all the circumstances, it is in the best interests of the person who is the subject of the order that the order is not reviewed at the expiration of that period. Note. Section 25 (1) and (2) (a) provide for the review of a guardianship order on the Tribunal's own motion or at the request of any person entitled to request a review. Those rights to review are unaffected by any statement in the guardianship order that the order will not be reviewed under section 25 (2) (b) at its expiration.
11. Section 18 of the Guardianship Act sets out the term or duration of a guardianship order. Relevantly it provides: (1) A continuing guardianship order has effect: (a) in the case of an initial order - for such period (not exceeding 1 year from the date when it was made) as the Tribunal may specify in the order, or (b) in the case of an order that is renewed - for such period (not exceeding 3 years from the date when it was renewed) as the Tribunal may specify in the order. (1A) Despite subsection (1), the Tribunal may specify, in a continuing guardianship order, that the order has effect for a period not exceeding: (a) in the case of an initial order - 3 years, and (b) in the case of an order that is renewed - 5 years, from the date on which it was made. (1B) Subsection (1A) applies in relation to a guardianship order only if the Tribunal is satisfied that: (a) the person the subject of the order has permanent disabilities, and (b) it is unlikely that the person will become capable of managing his or her person, and (c) there is a need for an order of longer duration than the relevant period specified in subsection (1). (2) A temporary guardianship order has effect: (a) in the case of an initial order - for such period (not exceeding 30 days from the date when it was made) as the Tribunal may specify in the order, or (b) in the case of an order that is renewed - for such period (not exceeding 30 days from the date when it was renewed) as the Tribunal may specify in the order. (3) A temporary guardianship order may be renewed only once.
12. Section 17 of the Guardianship Act is directed to who may be appointed as a guardian. Relevantly for the purpose of this ground s 17(3) provides as follows: (3) If, at the expiration of the period for which a temporary guardianship order has effect, the Tribunal is satisfied: (a) that it is appropriate that a further guardianship order should be made with respect to the person under guardianship, and (b) that there is no other person who it is satisfied is appropriate to be the person's guardian, the Tribunal may, in accordance with this Division, make a continuing guardianship order appointing the Public Guardian as the guardian of the person. (4) The Public Guardian shall be appointed as the guardian of a person the subject of a temporary guardianship order.[our emphasis]
13. The power to review a guardianship order is found in s 25 of the Guardianship Act. That section provides as follows: (1) The Tribunal may, on its own motion, review any guardianship order. (2) The Tribunal must review each guardianship order: (a) at the request of any person entitled to request a review of the order, and (b) at the expiration of the period for which the order has effect. (3) Despite subsection (2) (b): (a) a review required by that paragraph may be commenced before the expiration of the period concerned, and (b) the Tribunal is not required to review a guardianship order under that paragraph if the order contains a statement (referred to in section 16 (2A)) to the effect that the order will not be reviewed at the expiration of the period for which it has effect. (4) Before carrying out the review, the Tribunal must cause a notice specifying the date on which, and the time and place at which, the Tribunal will carry out the review to be served on each party to the proceedings. The review is taken to have commenced on the issue of such a notice. (5) A failure to serve notice in accordance with this section does not vitiate the decision of the Tribunal on the review. (6) If a review of a guardianship order is commenced but not completed before the expiration of the period specified in the order as the period for which the order has effect, the order is taken to be extended until the completion of the review. [our emphasis]
14. No issue is taken by the appellant that the notice referred to in s 25(4) was sent by the Tribunal prior to the expiration of the temporary guardianship order and the review was deemed to have commenced on that day.
15. The appellant poses two questions at [132] of her submissions: 1. Whether a temporary guardianship order may be taken to be extended until the completion of the review, or whether it expired after 30 days, that is, on 12 March 2017, and 2. Whether a temporary guardianship order, once lapsed, may be subject of any action under s 25C.
16. We have earlier in these reasons set out the parts of s 25C relevant to this appeal. However, it is useful, and we think aids understanding of this ground. that we again reproduce the section but now in its entirety. The actions that may be taken on review in s 25C are as follows: (1) On reviewing a guardianship order under section 25 (1) or (2) (a), the Tribunal may: (a) vary the order, or (b) suspend or revoke the order, or (c) confirm the order, or (d) renew, or renew and vary the order. (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).
17. The appellant submits the answer to each question she has posed is "No". She submits that as the Guardianship Act provides for the making of both "temporary" and "continuing" guardianship orders there would be no difference between them if a temporary order "simply continued until renewed". The appellant further submits that the expression "temporary orders" suggests such an order is for a finite period and notes that an initial order cannot be for more than 30 days and can only be renewed on one occasion. The appellant submits that a temporary guardianship order could be the subject of a review while it is current but once the order lapses there is nothing left to do and s 25(6) has no work to do.
18. Finally, the appellant submits "that a further temporary order may be made, but there is no order in place between the expiration of the initial order and the making of the further temporary or subsequent continuing order s17 (3)".

Discussion and conclusions

1. We accept, if the appellant's interpretation of the statute is correct, that insofar as the guardianship order is subject of the appeal, that the order made on 17 May 2017 (being an order purporting to be a review of the order of 10 February 2017) is a nullity and was incapable of review. In other words, the appellant submits there is currently no valid guardianship order.
2. The principles relevant to statutory construction are found in the decision of the plurality in the High Court in Project Blue Sky v ABA [1998] 194 CLR 355; 153 ALR 490, 72 ALJR 841, [1998] HCA 28.
3. Their Honours explained: The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute[45]. The meaning of the provision must be determined "by reference to the language of the instrument viewed as a whole"[46]. In Commissioner for Railways (NSW) v Agalianos[47], Dixon CJ pointed out that "the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed". Thus, the process of construction must always begin by examining the context of the provision that is being construed[48]. A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals[49]. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions[50]. Reconciling conflicting provisions will often require the court "to determine which is the leading provision and which the subordinate provision, and which must give way to the other"[51]. Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme. Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision[52]. In The Commonwealth v Baume[53] Griffith CJ cited R v Berchet[54] to support the proposition that it was "a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent". [footnotes omitted]
4. We also note the comments of Slattery J in The Husband v The Public Guardian [2016] NSWSC 1720 in discussing the structure of the Guardianship Act. His Honour explained: The legislative scheme of the Guardianship Act provides for regular review of the operation of guardianship orders, over periods that are specified in s 18 of the legislation …
5. A plain reading of s 16 of the Guardianship Act discloses that a guardianship order includes orders that are temporary or continuing, and the order must specify whether the order is limited (as in the case of the temporary order made on 10 February 2017) or plenary. Section 16(2A) refers the fact that a guardianship order may contain a statement to the effect it will not be reviewed on its expiration. Section 16(2A) does not differentiate between a temporary order and a continuing order.
6. Section 17 is primarily concerned with the person or statutory party to be appointed as a guardian. Section 17(2) must be read in the context of Part 3 as a whole. Section 15 (2) and (3) are of relevance. They provide: (2) A temporary guardianship order shall not be made in circumstances in which it is practicable to make a continuing guardianship order appointing a person other than the Public Guardian as the guardian of the person under guardianship. (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.
7. Section 17 empowers the Tribunal on the expiration of the temporary order, if appropriate, to make a continuing order, and if there is no other person suitable, to appoint the Public Guardian pursuant to a continuing order. This provision recognises that the guardian appointed under the temporary order is the Public Guardian.
8. Significantly, in our view is the use of the term expiration of the order in Part 3 of the Guardianship Act. Section 25 provides for the review of any guardianship order on its expiration and that each order must be reviewed on its expiration. We are satisfied that the use of the words any guardianship order, and expiration in s 25(2)(b) and (3) on a plain reading of the section, and having regard to the scheme for the making of guardianship orders and appointment of guardians in Part 3 of the Guardianship Act, discussed below, includes not only continuing orders but also a temporary guardianship order.
9. In reaching this construction of the legislation, we have regard to the language employed in the Guardianship Act and the purpose of the statute.
10. First, we note the general principles to be applied in exercising any function under the Guardianship Act (see s 4). Those principles require the Tribunal, amongst other matters, to give the welfare and interests of the person the subject of proceedings "paramount consideration", and that "freedom of decision and freedom of action of such person should be restricted as little as possible". The latter principle must be balanced against the principle requiring protection of such persons from "neglect, abuse and exploitation".
11. Secondly, a guardianship order is defined by reference to s 14. Section 14 requires assessment of whether a person is in need of a guardian. The section does not differentiate between continuing or temporary orders but is directed to the "need for an order". If grounds are established to make an order, whether temporary, continuing or renewed, a substitute decision maker is appointed.
12. Thirdly, all guardianship order have a temporal limitation (see s 18 (1)(a) or s 18 (1A) (a) in the case of an initial order, s 18 (1) (b) or s 18 (1A) (b) in the case of a renewed order or s 18 (2) in the case of a temporary order.
13. Fourthly, generally the only circumstance where a review is not required is when an order to that effect is made under s 16 (2A) (see s 25(2)(b). However, even if an order is made under s 16 (2A), it may still be reviewed by the Tribunal on its own motion or by a person entitled to request a review.
14. Fifthly, as noted above, s 25 (1) provides any guardianship order may be reviewed by the Tribunal on its own motion and s 25 (2) mandates that each guardianship order be reviewed at the request of a party entitled to request a review, and at the expiration of the period for which the order has effect.
15. Sixthly, to facilitate the review procedure, s 26(4) deems a review to have commenced on the provision of notice specifying the date, time and place the review will be conducted.
16. Seventhly, s 25(6) ensures that a person, who was found at the time of the order being reviewed was made to need a guardian, is protected until the review is completed.
17. Thus, having regard to the principles of statutory construction, we conclude that s 25(6) applies to temporary as well as continuing guardianship orders. It follows we do not accept the appellant's assertion that s 25 (6) has no "work to do" in respect of temporary orders. In giving this construction to the relevant statutory provisions we are fortified in our view having regard to the principles in s 4 of the Guardianship Act. We do not think the legislature could have intended that, if for any reason, a temporary guardianship order could not be reviewed during its currency (or on the provision of a notice before its expiration), a person in need of a guardian could be left in a vulnerable position without an alternate decision maker unless or until a new application was brought before the Tribunal. In so finding we accept that if a temporary guardianship order expires, and a review has not commenced or a notice has not been issued of a review hearing prior to the expiration date of the order, there is nothing to review. That was not the situation in this matter.
18. In this case we accept it would have been open to the Tribunal to continue the part heard guardianship applications before it and to dismiss the adjourned review application. The choice adopted is understandable in circumstances where consistent with s 38 of the NCAT Act the Tribunal focussed on relevant material and circumstances before it from 10 February 2017.
19. We do not accept that either of the limbs of ground 7 agitated by the appellant are established.

The Tribunal denied procedural fairness by declining to issue a summons seeking production of hospital records, with effect that: (c) the records were not available to the parties in support of their cases, and (d) the conclusions in reports of hospital staff could not be effectively challenged or answered.

1. At the hearing of the appeal, we confirmed with the appellant that she had formally requested an issue of a Summons to the hospital and her request had been refused by the Registrar on 15 March 2017. The issue of a Summons is defined in the NCAT Act as an interlocutory order. The appellant acknowledged at the hearing of the appeal that no steps had been taken by her to seek leave to appeal this interlocutory decision made under s 48 of the NCAT Act. Her failure to bring an internal appeal, as she was entitled to do under s 80 of the NCAT Act, means this ground is without merit.

I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar 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: 29 March 2018