ZGM v ZGN

NCAT Appeal Panel|2017-11-24

Solicitors: Cleary Hoare (Appellant) B Campbell (First Respondent)

No appearance (Second Respondent) No appearance (Third Respondent) B Hoyles, Guardian ad litem (Fourth Respondent) File Number(s): AP 17/37574 Decision under appeal Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Guardianship Division Date of Decision: 3 July 2017 Before: R Titterton, Senior Member; W Longley, Senior Member; M L Williams, General Member File Number(s): 2017/00197799

Publication of names of the parties

The publication or broadcast of the name of any person who is mentioned or is otherwise involved in an "internal appeal" against decisions made by the Guardianship Division of NCAT, is prohibited: s 65(1) of the Civil & Administrative Tribunal Act 2013 (NSW) (NCAT Act). Being an official report of the appeal proceedings, that prohibition does not apply to these reasons for decision: s 65(3) of the NCAT Act. Nonetheless, because of the sensitive nature of the matters raised in these proceedings, we have decided not to publish in these reasons any details that may identify the parties.
In this appeal, all parties to the appeal have been assigned a pseudonym, apart from the NSW Trustee. For ease of reading, in these Reasons the only person to whom we will refer to by a pseudonym is the person the subject of the initiating Application, ZGO.

Grounds of appeal

The appellant does not challenge the decision made by the Tribunal to treat the application for a review of the EPoA as an application for a financial management order, as permitted by s 37(1) of the Powers of Attorney Act 2003 (NSW). Nor does he challenge the subsequent decision to make a financial management order under s 25E of the Guardianship Act.
The appeal relates solely to the decision to commit the management of ZGO's estate to the NSW Trustee, made under s 25M of the Act.
At the hearing of the appeal, Counsel for the appellant announced that all but one of the three grounds of appeal listed in the Notice of Appeal had been abandoned. The appellant contends that in the exercise of the discretion conferred by 25M of the Guardianship Act, the Tribunal failed to have regard to mandatory considerations and placed unwarranted and unnecessary weight on irrelevant considerations. The appellant asserts that this demonstrates an error in the exercise of a discretion which gives rise to a question of law, citing in support the well-known passage in the joint judgment of Dixon, Evatt and McTiernan JJ in House v The King [1936] HCA 40; (1936) 55 CLR 499 at 505: [I]f the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, ... 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.

Statutory framework

Division 4 of Part 5 of the Powers of Attorney Act gives the Tribunal the power to deal with an application made in respect of a "reviewable power of attorney". A reviewable power of attorney includes an "enduring power of attorney", namely an instrument expressed to be given with the intention that it will continue to be effective even if the principal lacks capacity through loss of mental capacity after execution of the instrument: s 19(1) of the Powers of Attorney Act.
On the application of an "interested person", which includes an attorney appointed under a reviewable power of attorney (s 35(1)), the Tribunal may decide to, or decide not to, review the operation and effect of a reviewable power of attorney: s 36(1) of the Powers of Attorney Act.
Where the Tribunal decides to review the operation and effect of a reviewable power of attorney, the Tribunal may exercise the power to make an order under s 36, which includes an order to remove a person from office as an attorney, and to appoint a substitute attorney to replace an attorney who has been removed: s 36(4) of the Powers of Attorney Act. Alternatively, if the Tribunal decides not to make an order under s 36, it may (if it considers it appropriate in all the circumstances to do so) decide to treat the application for the review as an application for a financial management order under Part 3A of the Guardianship Act: s 37(1) of the Powers of Attorney Act.
The Tribunal may make a financial management order following (or in the course of) proceedings under s 36 of the Powers of Attorney Act in which the Tribunal has decided not to make an order under that section: s 25F(d) of the Guardianship Act.
The power to make a financial management order can only be exercised if, after considering the person's capability to manage his or her own affairs, the Tribunal is satisfied of the three matters listed in paras (a), (b) and (c) of s 25G of the Guardianship Act, namely that: the person is not capable of managing their affairs, there is a need for another person to manage those affairs on the person's behalf, and it is in the person's best interests that the order be made.
If the Tribunal makes a financial management order in respect of the estate (or part of the estate) of a person, the Tribunal may appoint a suitable person as manager of the estate; or commit management of the estate to the NSW Trustee: s 25M of the Guardianship Act. Given the centrality of this provision to the issues raised in this appeal, it is convenient to set out the provision in full: 25M TRIBUNAL MAY COMMIT ESTATE OF PROTECTED PERSON TO MANAGEMENT (1) If the Tribunal makes a financial management order in respect of the estate (or part of the estate) of a person, the Tribunal may, by order: (a) appoint a suitable person as manager of that estate, or (b) commit the management of that estate to the NSW Trustee.
The Guardianship Act uses the term "protected person" to refer to a person whose estate (or part of whose estate) is subject to a financial management order: s 25D of the Powers of Attorney Act.

Summary of the appellant's submissions

The appellant submits that the issue of whether he was a "suitable person" to act as manager of ZGO's estate was a mandatory consideration in the exercise of the discretion under s 25M of the Guardianship Act. He argues that s 4 of the Guardianship Act, required the Tribunal in the exercise of that discretion, to take into account the welfare and interests of his father, ZGO: para (a) of s 4 of the Guardianship Act.
The appellant submits that the Tribunal failed to properly engage with the material he led, which supported his contention that he was a suitable person to undertake the role of manager. He points out that while the Tribunal referred to the allegations made by the Daughter that he had abused his position as attorney, the Tribunal made no positive finding about these issues.
In addition, he argues that the Tribunal failed to have regard to the "non-exhaustive guidelines", considered by Lindsay J in M v M [2013] NSWSC 1495 at [50], as being relevant when a decision-maker is called upon to exercise the power to appoint (or remove) a manager of a protected estate, relevantly: … (c) Thirdly, any decision made affecting the welfare or interests of a protected person must be made in a manner, and for a purpose, calculated to be in the best interests, and for the benefit, of the protected person: Holt v Protective Commissioner (1993) 31 NSWLR 227 at 238D-F and 241G-242A. (d) Fourthly, care needs to be taken in all decision-making affecting a protected person to focus on the facts of the particular case, preferably with due consultation with the protected person, his or her family and carers who may be well placed to inform the Court of the protected person's particular circumstances: Holt v Protective Commissioner (1993) 31 NSWLR 227 at 238C-239B, 240D, 241B-F and 243E-F; Re L [2000] NSWSC 721 at [10]. (e) Fifthly, in the choice of a manager consultation of the welfare and interests of a protected person may favour appointment of a member of his or her family over the appointment of an institutional manager: Holt v Protective Commissioner (1993) 31 NSWLR 227 at 238G-239B. … (g) Seventhly, regard needs to be had to the value and nature of the property comprising a protected person's estate in deciding upon the identity of a manager or an appropriate management plan: Holt v Protective Commissioner (1993) 31 NSWLR 227 at 242E and 243D-F. …
The appellant asserts that the following matters were relevant to the evaluation of his suitability or otherwise to act as manager of ZGO's estate and were not addressed by the Tribunal: 1. The nature of the subject person's estate, including the specific nature of the property comprising the estate. 2. His experience and qualifications to undertake the role of manager, in particular his detailed knowledge of the nature and complexities of ZGO's estate. 3. The absence of any adverse findings of fact made about him in the exercise of his role as attorney. 4. The absence of any finding that he took action as attorney, which conflicted with the financial or other interests of his father.
The appellant asserts that in the exercise of the discretion conferred by s 25M(1), the primary consideration taken into account by the Tribunal was the rivalry and conflict between him, the Daughter and their siblings. This, he asserts was an irrelevant consideration. He argues that once the issue of family acrimony is put to one side, the Tribunal made no findings which tell against his appointment as manager.
The appellant contends that the reasons given by the Tribunal demonstrate that the Tribunal was guided largely, if not exclusively, by the "family squabble", which he contends was not relevant to the decision to appoint the NSW Trustee. He submits that by closing its mind to the possibility that he might have been a suitable person to manage his father's estate, the Tribunal failed to comply with its duty that in the exercise of the discretion under s 25M, the paramount consideration is the welfare and interest of ZGO.

The decision under appeal

In December 2015, ZGO moved to an aged care facility where he remains living to this day. There was no dispute between the parties that at the time of the hearing of the Application, ZGO was unable to manage his own affairs as a result of dementia: the 3 July 2017 Reasons for Decision (Reasons) at [11].
As noted above, in 2007 ZGO executed the EPoA, appointing his wife as attorney and the appellant and the Daughter as substitute attorneys. The appellant and the Daughter became ZGO's attorneys upon the death of their mother in December 2015, appointed to act jointly and severally.
At the hearing to determine the Application, the Daughter urged the Tribunal to make the following orders: 1. to remove the appellant from the office as attorney; 2. to appoint ZGO's long-time accountant and financial adviser (the Accountant) as substitute attorney; 3. to appoint her and the Accountant as joint financial managers, in the event the Tribunal decided to make a financial management order.
In contrast, the appellant urged the Tribunal to appoint him as his father's manager under a financial management order or, in the alternative, to appoint a chartered accountant he had nominated, or the NSW Trustee.
In its Reasons, the Tribunal noted that the appellant and the Daughter each alleged that the other was unsuitable to continue to act as their father's attorney.
The Tribunal noted that the Daughter alleged that the appellant: 1. Contrary to a verbal agreement reached, had been living in a property owned by ZGO for over five years without paying rent. 2. Procured ZGO's signature on forms lodged with ASIC to register a company "controlled for the benefit of [the appellant]" (the Company). 3. Used the Company's bank account for his own purposes. 4. Stymied her efforts to clear their father's debt, which she estimated to be around $1 million at the time of the hearing.
The Tribunal went on to summarise the appellant's response to the Daughter's allegations and his allegations about her conduct in the role of attorney: at [29]-[57]. The Tribunal noted that the appellant: 1. Claimed that the "poor communication" between him and his sisters over the management of their father's estate could "easily be overcome with mediation". 2. Agreed that to clear their father's debt, one of his properties should be sold, but not, as proposed by the Daughter, the property where he was living. 3. Alleged that while their mother was still alive, the Daughter sought to have him removed as attorney, "for the sole purpose of positioning herself to have the EPoA reviewed and ultimately having myself … removed as attorney". 4. Asserted that if appointed attorney, the Accountant would not act in the subject person's best interests but instead would merely follow the Daughter's instructions. This, he claimed would deliver the Daughter full control of their parents' assets, which she seeks for "narcissistic reasons". 5. Denied that in 2012, when ZGO was made a director of the Company, he lacked capacity to consent to that appointment. 6. Denied, as alleged by the Daughter, that he opened a bank account in the name of his father and used it to pay for his personal expenses. 7. Claimed that after moving to his parents' home in April 2012 until his mother's death in late 2015, he had been the primary carer of his parents and that the Daughter had minimal involvement in their care. (These claims were strongly disputed by the Daughter and other siblings.) 8. Alleged that the Daughter had used ZGO's property as security for loans taken out by a business that she and her husband controlled and, in addition, failed to disclose this and numerous other examples of using ZGO's property for her own benefit, to the Tribunal. In support, the appellant tendered a report prepared by an accountant and commissioned by him.
The Tribunal decided to proceed to conduct a review of the EPoA, given the "seriousness of the allegations made by [the appellant] and [the daughter]": at [72]. The Tribunal went on to consider whether, as urged by the Daughter, orders should be made under s 36(4) of the Powers of Attorney Act, specifically that the appellant be replaced as attorney by the Accountant and a third attorney appointed.
The Tribunal wrote that the power to remove an attorney could be exercised where, for example, "there had been some inappropriate or illegal act by the attorney, such as breaching their fiduciary duty to the principal": at [77]. After referring to a number of allegations made by the Daughter about the appellant, the Tribunal declined to make an order under s 36 of the Powers of Attorney Act, reasoning at [81]: There are many assertions made by [the Daughter] and referred to in her various documents which raise questions about [the appellant's] conduct of [the Company] and [ZGO's] involvement. However, in the absence of probative evidence about these matters, in particular without [the Company] financial statements, the documents lodged with ASIC relating to officeholders and shareholders and without more precise information about [ZGO's] cognitive health over the period concerned, the Tribunal is not satisfied that it should make an order under s 36 of the POA Act.
Having made that decision, the Tribunal went on to exercise the power to treat the application for review of the EPoA as an application for a financial management order as permitted by s 37 of the Powers of Attorney Act "given the enmity between the parties, and the serious allegations raised by each": Reasons at [83].
After considering the pre-conditions to the exercise of the power to make a financial management order (s 25G Guardianship Act), the Tribunal concluded that each was satisfied: Reasons at [84] - [91].
The Tribunal then went on to consider who should be appointed to undertake the role of the financial manager. Given that this issue is central to the appeal, we set out this extract of the Reasons in full: Who should be appointed as financial manager. 93 As noted, [the Daughter's] original proposal was that she, [sister 1] and [the Accountant] act as ZGO's attorneys. Alternatively [the Daughter] submitted that, if the Tribunal were to appoint a financial manager, [the Accountant]] be appointed, given his qualifications and knowledge of her father's asserts. [The Daughter] did not support the NSW Trustee and Guardian being appointed. 94 [The appellant] suggested himself as financial manager, failing that, an independent chartered accountant, [Mr X], and failing that, [the appellant] suggested the appointment of the NSW Trustee and Guardian, although that was his least preferred option. 95 The Tribunal may, where it considers appropriate, use resolution processes to bring the parties to a settlement. There was significant conflict in this matter and the Tribunal was not able to assist the parties to reach agreement. At one point the Tribunal suggested to the [ZGO] family that they consider that both the independent accountant proposed by [the Daughter], [sister 1] and [sister 2], [the Accountant] and the independent accountant proposed by [the appellant] [Mr X] together be appointed as joint financial managers. While this proposal was acceptable to [the Daughter], [sister 1] and [sister 2], it was not acceptable to [the appellant], principally because [the Accountant] also acted for [the Daughter]. 96 In appointing a financial manager, as in making all other orders under the Guardianship Act, the Tribunal must act with the interests of the person concerned as the paramount consideration and in accordance with the other principles set out in s 4 of the Guardianship Act. 97 Section 25M of the Guardianship Act provides that, if the Tribunal makes a financial management order, it may appoint a suitable person to manage the person's estate or may commit the management of the estate to the NSW Trustee and Guardian. 98 In Holt & Anor v Protective Commissioner (1993) 31 NSWLR 227, the Court said that the dominant consideration in making orders about financial managers was the welfare of the person. The President of the Court of Appeal emphasised the Court's broad discretion in deciding who should be financial manager but also set out possible considerations as to the competing advantages of the then Protective Commissioner and a family member as the manager of an estate. The NSW Trustee and Guardian now exercises the role of the Protective Commissioner. 99 On the side of the then Protective Commissioner was seen to be the manifest independence of the statutory office, the advantages of a dispassionate and neutral approach in situations of family conflict and divided views as to the best interests of the person, expertise and experience in managing estates, an impeccable reputation and the security provided to an estate against loss or damage. 100 The advantages of the appointment of a family member were more economic management of smaller estates (that is, freedom from fees) and a greater familiarity with assets and liabilities in smaller estates, a greater capacity of a person with a disability to interact with the manager so as to exercise a greater influence over the broad directions of the management of the estate, love and affection for and knowledge of the protected person and concern for his or her quality of life, and particular qualities or qualifications enabling family members to act as managers. 101 The Court considered that interrelated property interests in a family situation, where a conflict of interest and duty may be "more apparent than real," should not necessarily present an absolute bar to appointment of a family member who is otherwise appropriate. However, when appointing a family member, a decision maker must be satisfied that the estate, income and capital assets, will be utilised to advance the interests and quality of life of a protected person rather than to eventually increase the assets of the family. 102 In Application by AMAM; Re SAM [2011] NSWSC 503 Hallen AsJ stated: [34] It would be unwise to attempt any definition of the matters that may legitimately be enquired into to determine whether the applicant is suitable. Each case must depend on its own circumstances. Needless to say, however, the Court must consider, at least, the proposed manager's character, honesty and ability to manage, diligently, the managed person's property in the managed person's best interests. 103 The matters or "guidelines" that should be considered when determining who to appoint as financial manager, as established in Holt & Anor v Protective Commissioner (1993) 31 NSWLR 227, are discussed and expanded upon by Lindsay J in M v M [2013] NSWSC 1495 at [50]. 104 Ultimately, the decision is one for the Tribunal. This is a family that is divided and has not been able to work together for in the interests of their aging and dementia-afflicted father. The amount of [ZGO's] debt increases every month as the family squabble and do not work together to ensure the clearly necessary sale of one or other of the properties to ensure their own father's permanent placement in an appropriate facility which will provide him with the care that he needs, in circumstances [the Daughter] and [the appellant] each accuse the other serious misconduct in their roles as attorney and of breaching their fiduciary obligations to their father. The Tribunal does not accept that if either "side" would accept decisions made by the other, if one or other were appointed as financial manager. 105 In these circumstances, the Tribunal has decided to appoint the NSW Trustee and Guardian as financial manager for [ZGO]. We note the independence of this statutory office, the advantages of a dispassionate and neutral approach to situations of family conflict and divided views as to the best interests of the person, its expertise and experience in managing estates, its reputation and the security provided to an estate against loss or damage: Holt & Anor v Protective Commissioner (1993) 31 NSWLR 227. 106 Accordingly, we commit the estate of [ZGO] to the management of the NSW Trustee and Guardian.

Was the appellant's suitability to act as manager of ZGO's estate a mandatory consideration?

To succeed in this ground the appellant must first establish that his suitability or otherwise to act as manager of ZGO's estate was a consideration the Tribunal was bound to take into account.
The authorities make clear that a failure to take into account a relevant consideration will only constitute an error of law if the decision-maker fails to take into account a consideration that he or she is bound to take into account in making that decision. Whether a decision-maker is bound to take a particular matter into account is determined by the nature of the power to be exercised and the construction of the statute conferring that power. If the relevant factors are not expressly identified in the statute, they must be determined by implication from its subject matter, scope and purpose: Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40; (1986) 162 CLR 24 at 39-40 (Peko-Wallsend); Foster v Minister for Customs and Justice [2000] HCA 38; (2000) 200 CLR 442 at 452; Director General Department of Finance & Services v Porter [2014] NSWCATAP 6 at [27].
The Guardianship Act does not contain an explicit list of matters to which the Tribunal must have regard in exercising the discretion conferred by s 25M. However, s 4 of the Guardianship Act states: 4 GENERAL PRINCIPLES 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.
The opening words of s 4 "it is the duty of everyone exercising functions under this Act … to observe the following principles" (emphasis added) makes plain that it is mandatory, not merely exhortatory, for a person exercising functions under the Act, in this case the Tribunal in the exercise of its power under s 25M, to take into account the principles listed in s 4. As Lindsay J pointed out at P v NSW Trustee and Guardian [2015] NSWSC 579 at [53]-[58], the obligation to have regard to those principles is reinforced by cl 5(1) of sch 6 to the NCAT Act, which provides that when exercising its "Division functions for the purposes of the Guardianship Act 1987", the Tribunal is under a duty to observe the principles set out in s 4 of the Guardianship Act. (See also, ZBC v ZBD [2016] NSWCATAP 264 at [101], [105]).
As is apparent, the principles listed in s 4 are expressed at a high level of generality. For example, the direction in para (a) of s 4 to give paramount consideration to the "welfare and interests" of the subject person potentially covers a wide range of diverse matters. The Tribunal is required to identify the welfare and interests of the subject person that might be affected by the exercise of the power and to give paramount consideration to those matters in the exercise of that power. Depending on the circumstances of the particular case, a vast range of factual matters and considerations might rationally be thought to be relevant to that exercise.
In addition, in observing its duty to have regard to the s 4 principles, the Tribunal is required, where relevant, to strike a balance between competing and sometimes irreconcilable considerations. For example, para (c) of s 4 directs the Tribunal to have regard to the principle that the subject person's freedom of decision making and action should be restricted as little as possible. On the other hand, para (g) of s 4, directs that the subject person be protected from "neglect, abuse and exploitation". The principles of self-determination and autonomy and protectionism, will at times be in apparent conflict.
We accept the proposition advanced by the appellant (and expressly acknowledged by the Tribunal: Reasons at [66], [96]), that in the exercise of the discretion conferred by s 25M, para (a) of s 4 of the Guardianship Act the Tribunal was required to give paramount consideration to the "welfare and interests" of the subject person. The question raised in this appeal is whether the discharge of that obligation in the context of the exercise of the discretion under s 25M, required the Tribunal to give consideration to whether the appellant was a suitable person to undertake the role of financial manager of his father's estate. Merely because the appellant asserts that the consideration is relevant does not elevate it to the status of a mandatory consideration. As Deane J observed in Sean Investments Pty Ltd v MacKellar [1981] FCA 191; [1981] FCA 174; (1981) 38 ALR 363 at 375, in relation to the exercise of a discretion in another statutory context, the requirement to take into account a relevant consideration: [D]oes not, however, mean that a party affected by a decision is entitled to make an exhaustive list of all the matters which the decision-maker might conceivably regard as relevant and then attack the decision on the ground that a particular one of them was not specifically taken into account.
The terms of s 25M are to be contrasted with the provisions of the Guardianship Act relating to the appointment of a guardian for a person under guardianship. By the combined operation of ss 15(3) and 17(1) of the Guardianship Act, the Tribunal must not appoint the Public Guardian (the statutory equivalent of the NSW Trustee, who can be appointed to act as guardian) as the guardian of a person under guardianship, in circumstances where an individual has been proposed as guardian, and the Tribunal is not precluded from appointing the proposed guardian because they fail to satisfy the criteria for appointment listed in s 17(1).
In contrast, s 25M does not require the Tribunal to first be satisfied that there is no "suitable person" to undertake the role of manager, before committing the estate of the protected person to the management of the NSW Trustee.
Nonetheless, it does not follow that in the exercise of its discretion the Tribunal can ignore the nomination of a person proposed to act as manager of the subject person's estate. In our view, the terms of s 25M of the Guardianship Act, read together with the obligation to give paramount consideration to the welfare and interests of the subject person, implicitly require the Tribunal to identify the available options for the management of the subject person's estate. In the circumstances of this case, this task required the Tribunal to consider whether, as claimed by the appellant, and disputed by the Daughter, the appellant was a suitable person to manage ZGO's estate.

Did the Tribunal give proper, genuine and realistic consideration to whether the appellant was a suitable person to act as manager of the subject person's estate?

The appellant asserts that the Tribunal failed to consider his contention that he was a suitable person to manage his father's estate. He contends that the Tribunal side-stepped the issue of his suitability to act as a manager and determined the question of whom to appoint by focussing on the acrimony within the family, which he contends was an irrelevant (or less relevant) consideration.
The obligation to "take into account" a relevant consideration requires the decision-maker to give "proper, genuine and realistic consideration" to the relevant consideration(s): Khan v Minister for Immigration and Ethnic Affairs [1987] FCA 457; (1987) 14 ALD 291 at 292; Zhang v Canterbury City Council [2001] NSWCA 167; (2001) 51 NSWLR 589 at 601 [62]; Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 367 [138]; NAJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 134 (2005) 147 FCR 51 at 92-93 [212].
As explained by the Court of Appeal in Azriel v NSW Land & Housing Corporation [2006] NSWCA 372 (Azriel) at [49], the obligation to give "proper, genuine and realistic consideration" will not be satisfied where the decision-maker's consideration is merely a formulaic reference. The obligation requires the decision-maker to give consideration to the particular matter in a realistic and genuine sense, involving an "active intellectual process", though not necessarily to treat it as a fundamental element in the decision-making process: Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 389; (2001) 109 FCR 152 at [52] - [59].
In Azriel Basten JA at [51], warned that the assessment of whether a decision-maker gave proper, genuine and realistic consideration to a mandatory matter, must be approached with caution and with care to avoid an impermissible reconsideration of the merits of the decision. (See also Director General Department of Finance & Services v Porter [2014] NSWCATAP 6 at [28]).
Under the heading, "Who should be appointed manager?", the Tribunal referred to the nomination of the appellant (and others) to act as manager of ZGO's estate but did not expressly address the issue of his suitability to undertake that role. As pointed out by the appellant, that extract of the Reasons focuses primarily on the family dispute, the conflicting views within the family about ZGO's best interests, the serious nature of the allegations made by the appellant and the Daughter about each other and the advantages of committing an estate to the NSW Trustee, in particular the security afforded to the estate: Reasons at [104], [105].
Whether the Tribunal failed to give "proper, genuine and realistic consideration" to the suitability of the appellant to manage ZGO's estate, cannot be assessed by considering in isolation the extract of the Reasons, under the heading "Who should be appointed manager?". The Reasons must be read as a whole. Much of the Reasons was devoted to a consideration of the allegations made by the Daughter about the appellant, which formed the basis for the Tribunal's decision to not make an order under the Powers of Attorney Act and to proceed to make a financial management order.
The Tribunal noted in its Reasons that allegations of a serious nature had been made about the appellant in relation to his abuse of his role as attorney: at [72]. The Tribunal concluded that on the available material it would find it "very difficult to make positive findings about such matters": at [78]. With respect to the allegations relating to the appellant's conduct vis a vis the Company, the Tribunal concluded that "in the absence of probative evidence about these matters", it should not make the order sought by the Daughter, namely the removal of the appellant as attorney: at [81].
While not stated explicitly, fairly read and construed, the Reasons disclose that the Tribunal concluded it could not be positively satisfied that the appellant had not abused his position as attorney, in the manner as alleged by the Daughter. Equally, it is implicit that the Tribunal concluded it could not be positively satisfied that the appellant was or was not a suitable person to undertake the role of manager and took this into account in exercising the power to commit the management of ZGO's estate to the NSW Trustee. It is apparent, however, from the Reasons that the Tribunal was conscious of the allegations and evidence against the appellant, conscious of the evidence he advanced to counter it and attempted to weigh it but was frustrated because of the lack of corroboration one way or the other. In those circumstances, it could neither make a positive finding one way or another. In undertaking that exercise, however, it is implicit that the issue of the appellant's suitability was considered by the Tribunal.
The appellant has failed to establish that in the exercise of the discretion under s 25M the Tribunal failed to take into account the issue of whether he was a suitable person to act as manager of ZGO's estate.
In any event, what is abundantly clear, is that the Tribunal focussed on the primary issue it was required to consider, namely, the welfare and interests of ZGO. Any consideration of the appellant's suitability always had to be subordinated to the resolution of this primary issue. In our view, it approached that question with close attention and its discretion did not, in that respect, miscarry.
This ground of appeal is rejected.

The irrelevant consideration ground

The appellant asserts that in the exercise of the discretion conferred by s 25M of the Guardianship Act, the primary consideration taken into account by the Tribunal was the rivalry and conflict between him, the Daughter and other siblings about issues relating to the management of their father's estate. This, he asserts was irrelevant (or less relevant) than other considerations, in particular his suitability to act as manager of his father's estate.
It is necessary for the appellant to identify how, whether expressly or by implication, the Guardianship Act precluded the Tribunal from taking into account the dispute within the family about the management of ZGO's estate in the exercise of its power under s 25M. He did not attempt to do so. To succeed in this ground, the appellant must establish that the "family dispute", was a consideration the Tribunal was not permitted to take into account. As explained by Basten JA in Lo v Chief Commissioner of State Revenue [2013] NSWCA 180 at [9]: [F]urther, a matter traditionally described as an "irrelevant consideration" is one which is prohibited because, having regard to the subject matter, scope and purpose of the power being exercised, it can be seen to reflect an extraneous or improper purpose or to render the decision arbitrary or capricious. Between these two categories [relevant and irrelevant considerations] is usually a wide range of permissible considerations which the decision-maker may weigh or disregard without committing an error of law.
Determining whether a particular consideration is an irrelevant consideration, or a "forbidden consideration", to use the term adopted by Aronson, Groves and Weeks in Judicial Review of Administrative Action and Government Liability (Thomson Reuters, 6th ed, 2017) at [5.30], requires consideration to be given to the nature of the power to be exercised and construction of the statute conferring the discretion: Peko-Wallsend at [40].
There is nothing in the Guardianship Act to indicate that the Tribunal was forbidden from having regard to the dispute between the family members concerning the management of ZGO's estate in the exercise of the discretion under s 25M. It was the trigger for the decision made by the Daughter to seek review of the EPoA. Indeed, arguably para (f) of s 4 - the importance of preserving the family relationships [of a person with a disability] - required the Tribunal to take the matter into account.
What the appellant has sought to do was to elevate a factor, which was certainly a permissible consideration, to the status of a forbidden consideration. At the hearing of the appeal, the appellant appeared to retreat from that characterisation, arguing instead that it was one to which the Tribunal gave undue weight.
It is well established that the weight to be given to a permissible consideration is generally a matter for the decision-maker. We are not persuaded that the issue of the dispute within the family about the management of ZGO's estate issue was a forbidden consideration. This ground of appeal is rejected.

Application to amend grounds of appeal

At the hearing of the appeal, the appellant sought leave to amend the notice of appeal by including two additional grounds: 1. The Tribunal's purported failure to give adequate reasons for the exercise of its discretion to make a financial management order. 2. The Tribunal's purported failure to afford him procedural fairness by failing to consider evidence he had adduced in support of his alternative submission that [Mr X] be appointed as manager of ZGO's estate.
The Daughter strongly opposed that application. She pointed out that the application was not made until the day of the hearing of the appeal, however two months earlier directions listing the appeal and requiring the parties to file submissions in support of their respective positions had been made. In addition, the granting of the application is likely to add to the costs she will incur in the appeal.
The proposed new grounds of appeal raise discrete issues not canvassed in the original grounds of appeal. If leave were given to amend the grounds of appeal, fairness would require the respondents to be given the opportunity to properly consider and respond to the new grounds. Self-evidently this would have cost implications.
Weighing against the granting of the application are the following factors: the appellant has been legally represented throughout the appeal, he has had an adequate opportunity to prepare for and formulate grounds of appeal, the application to amend the grounds of appeal was made late and, if granted, would probably require the respondents to be given an opportunity to properly respond to the new grounds. While not hopeless, the fresh grounds of appeal are in our view unlikely to be determinative of the appeal. In these circumstances, we have concluded that granting leave to amend the grounds of appeal would offend the "guiding principle", to which we are instructed to give effect namely the facilitation of the just, quick and cheap resolution of the real issues in the proceedings: s 36(1) of the NCAT Act. Leave is refused.

Views of the Guardian ad Litem

In the interests of completeness, we note that a Guardian ad Litem (GAL) was appointed for ZGO on 6 October 2017, to determine what is in ZGO's best interests with regard to the appeal. The GAL reported to the Appeal Panel that while he had attended the aged care facility where ZGO is now living and spoken to relevant staff, he did not meet ZGO, considering that given his present condition a meeting would possibly cause him confusion and stress. He expressed the opinion that it is likely that ZGO's current living standards at the aged care facility are excellent, and that the current standard of care should continue. The GAL referred to evidence of family conflict and expressed the view that ZGO's best interest would be served if his estate, which appears to include significant property assets, is independently managed by a third party with no agenda other than to provide for ZGO's best interest.

Orders 1. The appeal against the decision made by the Tribunal on 3 July 2017 is dismissed.

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

Amendments 30 April 2018 - Paragraph 14 - word inserted, Paragraph 31 - word replaced, Paragraph 41 - word removed 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: 30 April 2018

Administrative Tribunal Act 2013(NSW)

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