ZHA v ZGZ

NCAT Appeal Panel|2018-04-19|Before: Emeritus Professor P

Introduction

ZGZ is 89 years of age and resides in her own home at Darling Point in New South Wales with her husband ZHB who is 92 years old. ZGZ was born in the former nation known as Czechoslovakia. ZGZ and ZHB both survived periods in concentration camps during World War II before marrying in 1949 and migrating to Australia together in 1950. After moving to Australia they operated successful business enterprises primarily in the Eastern Suburbs of Sydney. There are no children of the relationship.
On 15 June 2010, ZGZ executed an enduring power of attorney by which she appointed her husband, ZHB, the couple's then accountant, ZHA, the couple's then solicitor, ZHQ, as well as two nephews, Mr X and Mr Y, as her attorneys.
On 31 March 2015, ZGZ revoked the power of attorney she executed on 15 June 2010 ("the revocation") and executed a power of attorney by which she appointed ZHR, her current solicitor, as her attorney amongst others.
On 14 April 2015, the Tribunal received an application for a review of the revocation, the applicant being ZHA. The Tribunal conducted a hearing of the application on 10 July 2015 and proceeded to make an order declaring that ZGZ did have the mental capacity on 31 March 2015 to revoke the enduring power of attorney that she made on 15 June 2010.
On 5 December 2017, ZHA filed a notice of appeal with the Tribunal in relation to the Tribunal's orders of 10 July 2015. ZHA did not appeal on the basis that the Tribunal was in error, but rather that leave to appeal should be granted on the basis that a report as to ZGZ's capacity, authored by Dr V, a clinical neuropsychologist, in October 2014 ("Dr V's report"), was not before the Tribunal, and if it had been, there was a significant likelihood that it would have affected the Tribunal's ultimate decision on the application.
We conducted a hearing on the appeal on 19 April 2018. We needed to determine whether we would grant an extension of time to ZHA for lodgement of the notice of appeal given it had been filed some two years and three months out of time. For the reasons that follow, we have decided to refuse to extend time for the filing of the notice of appeal. It follows that the appeal is dismissed.

Parties to the Appeal

The parties to the original proceedings are parties to the appeal proceedings.
Accordingly, the parties to the appeal proceedings were: ZHA, the Appellant; ZGZ, the principal of the instrument subject of the revocation; ZHB, ZGZ's husband and attorney appointed under the revoked instrument; ZHQ, ZGZ's former solicitor and appointed attorney under the revoked instrument; and ZHR, ZHA's attorney under the current enduring power of attorney and who was joined as a party to the proceedings below.
We concur with the actions of the Tribunal below which removed ZHA's nephews, Mr X and Mr Y (who both reside in the United States of America), as named parties to the proceedings. Whilst both are named as attorneys under the revoked instrument, neither had accepted their appointment or sought to be involved in the proceedings.
ZGZ's husband, ZHB, played no active role in the proceedings subject of the appeal or in the appeal before us. It was uncontentious that ZHB has significant cognitive impairment due to advanced dementia and having had a stroke and due to such, could not participate in the hearing process. He was not represented in the appeal proceedings. We note that no issue was taken by any party as to ZHB not being represented in the appeal proceedings. However, counsel for the Appellant suggested that we should consider the appointment of a separate representative for ZHB if we were minded to extend time on the appeal and grant leave.
ZHQ, ZHA's former solicitor and an attorney named under the revoked instrument, sought to play no active role in the appeal proceedings.

Notice of Appeal

The notice of appeal did not provide defined grounds of appeal, but rather a series of statements as set out below: This matter is appealed on the basis of very significant medical evidence that was not disclosed to the Tribunal by the Respondent's Solicitor at the hearing at first instance. The evidence demonstrates that ZGZ did not have capacity to effect the revocation of the Power of Attorney on 31 March 2015, which was the central question in the case. The Tribunal determined the matter in accordance with the medical evidence presented to it, and no criticism is made of the Panel. However, it has since emerged that [ZGZ]'s then solicitor, [ZHR], commissioned a report by [Dr V] into [ZGZ]'s mental capacity by letter of instruction dated 18/09/2014. The report dated 27 October 2014 was commissioned for the specific purpose of determining [ZGZ]'s capacity to revoke the Power of Attorney, and an Appointment Enduring Guardian. The report found that [ZGZ] did not have capacity to effect the revocations. Not only was this report withheld from the Tribunal [ZHR] made explicit statements in his submissions and evidence that "the only medical evidence to suggest that [ZGZ] may not have had the requisite mental capacity comes from [Dr T]", despite knowing such statement to be false contravention of s71 of the Civil and Administrative Tribunal Act 2013. Further, whilst [ZHR] spends considerable time in his Statement and Submissions as to his personal degree of satisfaction as to [ZGZ]'s capacity, it was [Mr U], Solicitor, who witnessed the Power of Attorney / Revocation of Power of Attorney Documents, not [ZHR]. There remains a question as to whether [Dr V]'s report was made available to the [Mr U] prior to his witnessing of the document's execution, which the Tribunal was not in position to consider at the prior Hearing, due to [ZHR]'s failure to disclose the [Dr V] Report. It is submitted that the Report of [Dr V] clearly tips the balance of available medical evidence towards a finding of incapacity at the relevant time, and the Tribunal would almost certainly have made a different finding had this Report been made available to it at the 10 July 2015 Hearing.
As confirmed by counsel for the Appellant (ZHA) at the hearing, the grounds of appeal did not raise any questions of law, but rather, sought leave to appeal due to the asserted ramifications of the report having not been in evidence before the Tribunal. The notice of appeal provided the following reasons why we should grant leave in those circumstances: Leave is sought to Appeal on the basis of the new evidence, being the report of [Dr V] dated 27 October 2014, which was not provided to the Tribunal or any of the parties by [ZGZ]'s Solicitor, [ZHR] at the 10 July 2015 Hearing. The Report of [Dr V] was prepared for the specific purpose of determining whether [ZGZ] had capacity, and found that she did not have legal capacity. The appellant had no knowledge of the existence of the report at the time of the hearing, and only became aware of the report's existence well outside of the 28 day period allowed for lodgement of an Appeal. The report is directly relevant, persuasive, and likely to alter the Tribunal's judgment in the matter. The Tribunal is obliged to ensure that "all relevant facts in issue" are determined on the basis of "all relevant material" in accordance with s38(6)(a) of the Civil and Administrative Tribunal Act 2013. In light of this new evidence, the Tribunal's finding that [ZGZ] did have capacity is dubious, if not unsustainable. Leave to Appeal ought to be granted to address substantial miscarriage of justice. The determination at first instance was made in the absence of significant evidence that ought to have been made available to the Tribunal. The report of [Dr V] makes clear that [ZGZ] requires assistance to manage her affairs. Further, the conduct of [ZHR] in knowingly withholding evidence central to the Tribunal's determination raises significant concerns as to his conduct as an Attorney to [ZGZ] after March 2015. In the exercise of its guardianship role the Tribunal must be satisfied that it has available to it all relevant material when assessing questions of capacity. When it is apparent that this was not the case, the Tribunal ought to exercise its jurisdiction on appeal to address the issue. Further, in March 2015 [ZGZ] was herself purporting to exercise a role as Attorney for her husband, [ZHB]. His rights have been potentially affected by the Tribunal's finding that [ZGZ] had capacity. In light of the [Dr V Report] there is a significant likelihood that the Tribunal will form a different view on appeal about [ZGZ]'s capacity. This is a sound reason for leave to appeal to be granted. The above matters are also relied on for the purposes of obtaining leave to appeal out of time.

Scope and nature of appeal

A party's right to appeal against decisions and orders of the present kind is restricted to 'questions of law'. It may be extended to 'other grounds' with the leave of the Appeal Panel. See the Civil and Administrative Tribunal Act 2013 (NSW) ("CAT Act"), s 80(2)(b).
As the Appellant did not assert any questions of law, the basis of the appeal amounted to "other grounds" and required leave.

Preliminary matters

Counsel for ZGZ opposed an affidavit sworn by the Appellant being before us as it was filed on 12 April 2018, after the time limit imposed by directions issued to the parties which prescribed all documents and submissions to be filed by the Appellant by 10 April 2018. As the affidavit was significant to the Appellant's application to extend time and the Appellant was available for cross examination if required, we decided to allow the document.
We raised a preliminary matter with counsel for the Appellant as to whether there was a potential jurisdictional issue. The notice of appeal, and subsequent submissions in support, asserted that ZHR had deliberately withheld Dr V's report from the Tribunal below and made statements to the Tribunal as to the totality of medical evidence available, knowing such statements to be false. Given this stated element of the appeal, we queried as to whether the Appellant was seeking equitable relief on the basis that the order of the Tribunal was fraudulently obtained, and if so, was the Appeal Panel vested with the jurisdiction to grant the relief sought.
Counsel for the Appellant clarified that it was not asserted that the actions attributed to ZHR amounted to fraud and no relief was sought on this basis. Rather, it was asserted that ZHR had failed in his duty to place all relevant material before the Tribunal.

The Decision under Appeal

In the original proceedings in the Guardianship Division of the Tribunal, the Appellant requested that the Tribunal review the revocation as it is empowered to do under s 36 of the Powers of Attorney Act 2003 (NSW): 36 Interested persons may apply for review (1) Tribunal may review making or operation and effect of power A review tribunal may, on the application of an interested person, decide to review the making, revocation or the operation and effect of a reviewable power of attorney or not to carry out such a review. (2) As a consequence of reviewing the making, revocation or operation and effect of a reviewable power of attorney, a review tribunal may decide whether or not to make an order under this section. … (3A) Orders relating to revocation of power of attorney A review tribunal may make either or both of the following orders with respect to the revocation of a power of attorney: (a) an order declaring that the principal did or did not have mental capacity to revoke a power of attorney, (b) an order declaring that the power of attorney remains valid (either in whole or in part) if the tribunal is satisfied: (i) the principal did not have the capacity necessary to revoke it, or (ii) the revocation is invalid for any other reason, for example, the principal was induced to make the revocation by dishonesty or undue influence. …
Having analysed the relevant legislation and authorities, the Tribunal described the test that they needed to apply in the assessment of the evidence as to ZGZ's capacity to enter into the revocation as follows: [55] Applied to this case, this means that the Tribunal needs to consider whether or not at the time she revoked the power of attorney, [ZGZ] was capable of understanding the nature of what she was doing.
Relevant to the issue of whether we should extend time on the appeal and grant leave is the issue of whether Dr V's Report, had it been available to the Tribunal, may have altered the outcome. Noting that the Appellant took no issue with the weight the Tribunal gave to the evidence before it or the reasoning process applied, it is necessary for us to be apprised of the evidence that was before the Tribunal as to ZHA's cognitive capacity at the time of the revocation, which was succinctly summarised in the Tribunal's reasoning: [22] The Tribunal had regard to a number of documents from medical professionals regarding [ZGZ]'s cognitive capacity. These are summarized in the following paragraphs. [23] In a letter dated 23 May 2013 regarding [ZHB], [Dr S], Consultant Psychiatrist expresses concern that [ZGZ] was obstructing efforts of [ZHB]'s carers and was claiming there was no money to pay for the carers. [24] In a letter dated 23 February 2014 from [a medical centre] to [Dr T], [ZGZ] is described as having "age related cognitive deterioration". [25] ln a letter dated 9 March 2014 addressed to [Dr R], [Dr T] opines that [ZGZ] scored 19/25 on the Mini Mental State Examination (MMSE) and that she demonstrated impaired working memory, attention and concentration. He states that if she had a power of attorney it should be enacted. In particular, in relation to cognitive testing he provides information to the following effect regarding [ZGZ]: (1) She recalled 3/3 items and she was able to recall the names of past and present political figures as well as knowing about problems in the Ukraine occurring at the time of testing. (2) Her memory of facts from a story was borderline low and she was able to repeat a string of 5 digits forward but was unable to repeat 4 digits backwards. (3) She was fairly well oriented but was not able to recite the months of the year or the days of the week backwards. (4) She displayed difficulties with attention, working memory and concentration. (5) She was not able to perform everyday mathematical calculations. [26] ln an email dated 18 June 2014 addressed to [ZHA], [Dr R] states he discussed [ZGZ] with [Mr Q], and opines that in light of the geriatric assessment and because [ZGZ] was exhibiting signs of behaviour disturbances, he supported activating the power of attorney made by [ZGZ]. [27] In a letter dated 6 August 2014 addressed to [Dr R], [Dr S] recounts a meeting with [ZGZ] in which the latter referred to being taken for a cognitive assessment. [Dr S] states "if it is indeed the case that [ZGZ] was found to be cognitively impaired on the assessment by a geriatrician, someone should manage her affairs…". [28] In a letter dated 1 September 2014 addressed to [Dr R], [Dr S] states that he understands that [ZGZ] was "quite impaired on cognitive testing and was unable to handle payments" and that her power of attorney should be activated. [29] In a letter dated 15 December 2014 addressed to [Dr P], [Dr O], Consultant Psychiatrist, opines that [ZGZ] has testamentary capacity and is able to manage her own affairs. He states that he does not agree with the [Dr T]'s assessment of [ZGZ] and that in his opinion she is not significantly impaired and is more than capable of living independently. He provides specific information to the following effect: (1) [ZGZ] requested a cognitive assessment similar to the one conducted by Dr T because she wanted to prove that she could look after herself, her husband and her money. (2) [ZGZ] scored 22/30 on the MMSE which indicates mild impairment of cognitive functioning. She was extremely nervous upon testing and as a result might have performed less well than she would have otherwise. (3) [ZGZ] said that her estate, owned jointly with her husband, is valued at approximately $26 million and she provided details of the estate as including a home occupied by her husband's nephew, [Mr Q], ([the Eastern Suburb Unit]) valued at approximately $3 million, a home unit in which she lives with her husband valued at approximately $8 million and $15 million in the bank from which she receives $500,000 per annum in interest. She also said she was the Director of two companies known as "[Company AB]" and "[Company CD]'. (4) She named [ZHA] as her accountant and said that he had recently given $15,000 to [ZHB]'s nephew, [Mr Q], that she has not seen [ZHA]'s accounts and was concerned that he has been overcharging them. She said that she did not trust [ZHA] or [ZHQ] and that she had appointed a new lawyer, [ZHR]. [30] [Dr O] provided the Tribunal with the MMSE questionnaire recording the scores obtained by [ZGZ]. The questionnaire includes a "Suggested guideline for determining the severity of cognitive impairment" which indicates that a score of 21/30 is indicative of mild dementia whilst a score of 10/30 to 20/30 indicates moderate dementia and score of 9/30 or less indicates severe dementia. [31] In a letter dated 12 January 2015 addressed to [Dr R], [Dr S] refers to the assessment of [Dr T] as concluding that [ZGZ] was found to be "quite impaired on cognitive testing" and was unable to handle payments" and that her power of attorney should be activated. He also expresses the opinion that if [ZGZ] were to continue to "demand to make any significant financial decisions she would require reassessment by (a) competent geriatrician or old age psychiatrist". [32] In a letter dated 26 February 2015 and addressed to [a law firm], [Dr O] states that his opinion has been sought regarding [ZGZ]'s ability to revoke her current power of attorney and to make a new one in its place, revoke her enduring guardianship appointment and make new one in its place and to transfer the title of her home to her nephews living in the United States. [33] [Dr O] expresses the view that [ZGZ] is fully capable of making her own independent assessment of her current life situation in all its ramifications and to make decisions which would impact on her current situation, without suffering from any defect of reasoning which would invalidate such decision-making. He provides information to the following effect regarding [ZGZ]'s responses to questions about the issues outlined: (1) She said that she understood the role of an attorney as that of a person who could make decisions regarding all aspects of her financial situation in the event that she was no longer compos mentis. She also said that she understood that, the power of attorney would allow a person to ensure that her enduring guardians did the right thing by her and her husband. (2) She said that [ZHQ] was a current attorney and she had lost faith in him and wished to replace him with [ZHR]. (3) She said that [ZHA] is her current enduring guardian and she wished to replace him. (4) Regarding the transfer of title of her home to her nephews, she said that would be on the condition that they did not sell the property whilst she or her husband was still alive and she was compos mentis. (5) She said that she understood the transfer of the home would involve stamp duty and the cost would be in excess of $400,000 and she said she understood that the transfer was likely to be challenged by her husband's relatives. (6) She expressed negative views about the behaviour of her husband's nephew, [Mr Q], and was particularly unhappy that he had been given a cheque for $15,000 that she had not authorised. [34] During the bearing the Tribunal telephoned [Dr S]. He said that his patient was [ZHB], and that [ZGZ] has never been his patient. However he said that he made some observations about [ZGZ] when he visited [ZHB] at his home, the most recent time being on 3 August 2014. He said on that occasion her formed the impression that [ZGZ] was anxious and was adamant in her views about [Mr Q]. In his opinion she was inflexible, perseverative, concrete and suspicious in relation to matters regarding [Mr Q] and he thought there was reason to be concerned about her cognitive capacity. [35] In response to a question from [ZHA], [Dr S] said words to the effect that [ZGZ]'s belief that there were insufficient funds to pay for the care of [ZHB] could indicate cognitive impairment, but that this was not necessarily the case because in his experiences elderly people do worry about finances. [36] [Dr S] said that in his opinion any score on an MMSE less than 25/30 is indicative of significant cognitive impairment. [37] During the hearing [ZHQ] gave evidence that he telephoned [Dr T] to discuss the differences between his assessment of [ZGZ] and that of [Dr O] and [Dr T] said that he stood by his assessment.
After an analysis of the evidence as to ZGZ's capacity, from medical professionals, as well as other participants in the hearing, and the submissions from the parties, the Tribunal made the following findings: [57] Taking into account all of the evidence, the Tribunal reached the following conclusions regarding [ZGZ]'s actions in revoking the power of attorney: (1) [ZGZ] has a degree of cognitive impairment. The Tribunal accepts that the interpretation of the MMSE results is a matter on which qualified experts have disagreed and the Tribunal is not able to reach a conclusion as to the category of cognitive impairment that is justified by her results on the MMSE. (2) The Tribunal is of the view that [ZGZ]'s current memory that she was coerced by [ZHQ] and [ZHA] to purchase a home for [Mr Q] is unlikely to fully accord with the facts and could be influenced by her cognitive impairment. The Tribunal is also satisfied that at times during the hearing [ZGZ] seemed confused about some of the matters under discussion. (3) Despite the view that [ZGZ] has a level of cognitive impairment, the Tribunal concluded that taking into account [ZGZ]'s overall presentation during the hearing as well as the evidence of [Mr U], [ZHR] and [Dr O], [ZGZ] understood the general nature and powers of an attorney, though she did incorrectly opine that an attorney could oversee the actions of an enduring guardian. (4) Whilst [ZGZ] described [ZHA] as her enduring guardian and [ZHQ] as her attorney, her meetings with [ZHQ and [ZHA] were in the context that they were both her attorneys and the Tribunal is satisfied that she was aware of who her attorneys were when she revoked their appointment. (5) [ZHA] described [ZGZ] as having a morbid hatred of [Mr Q] and he did not suggest that her views were fanned only since she started to experience a cognitive decline. (6) The Tribunal is satisfied that the evidence establishes that for some years [ZGZ] has been antagonistic to proposals to benefit [Mr Q]. Her views existed prior to concerns being expressed about her cognition. As examples, and based on the evidence of [ZHA], these occasions included: • In 2010 [ZGZ] expressed a desire to make bequests to her family to the exclusion of [ZHB]'s family. • In 2011 [ZHB] expressed the belief that [ZGZ] did not share his views about assisting [Mr Q], that she hated him and wanted to "see him on the street". • In mid 2013 [ZGZ] opposed a proposal to provide payment to [Mr Q] for his services, even though she did not instruct [ZHA] not to make those payments. (7) The Tribunal is satisfied that, consistently with her long held views about [Mr Q], [ZGZ] requested her attorneys to intervene in the arrangements pertaining to [Mr Q]'s occupation of [the Eastern Suburb Unit]. She subsequently fanned the view, correctly according to [ZHA], that they were not wholeheartedly implementing her instructions. (8) [ZGZ] also discovered that [ZHA] had made a loan to [Mr Q] using company funds. She had not authorised the loan and did not approve of it. (9) The Tribunal is satisfied that having decided that her attorneys were not acting in accordance with her wishes and instructions and that [Mr Q] had been advantaged to an extent that was beyond her wishes, [ZGZ] revoked the power of attorney. [58] The Tribunal is satisfied taking into account the context of the revocation of the power of attorney, and the evidence of [ZHR], [Mr U] and [Dr O], that despite a level of cognitive impairment, [ZGZ] was able to understand the nature and effect of her actions in effecting the revocation.

The Report by Dr V

The report that was central to the appeal was written by Dr V and dated 27 October 2014.
The report of some 20 pages states that Dr V is a clinical neuropsychologist and that whilst she was initially approached by ZGZ's carer to conduct an assessment, she subsequently received a letter of instructions from ZGZ's solicitor, ZHR, indicating that ZGZ wished to revoke her existing power of attorney and make a new one. Dr V indicates that the report is based upon interviews with ZGZ on three separate occasions and neuropsychological assessment.
After outlining in detail the history that she had obtained of ZGZ and the testing that she conducted upon her, Dr V provided the following opinion: [19.8] Opinion - Power of Attorney and Financial Affairs [19.9] Across all three sessions that I saw her (and despite explanations), [ZGZ] was unable to correctly define a Power of Attorney. In my opinion, [ZGZ] does not demonstrate a full understanding of the role of an attorney (confusing this with the role of a guardian at times) and her knowledge regarding the powers conferred on an attorney is superficial. [19.10] With reference to the General Power of Attorney for [ZGZ] dated 15/06/2010, her knowledge regarding her existing Power of Attorney is incorrect. [19.11] [ZGZ] is able to give reasons as to why she wants to revoke her existing Power of Attorney, and these reasons were stable across all 3 sessions. Given my limited understanding of the situation, I was unable to ascertain the accuracy of these reasons. It is possible that her appraisal of others has been affected as part of the effects of Vascular Dementia; however, the extent to which this may be the case (if any) is unclear, given the informant reports that appear to support a number of [ZGZ]'s reports. [19.12] While [ZGZ] is able to give reasons for the appointment of certain new attorneys, her decision as to which new attorneys she would like to appoint is not stable over time. That is, she nominates different attorneys across all 3 sessions (initially, [ZHR] and another person; then [ZHR] and herself; then [ZHR] and certain relatives in America). [19.13] Taken together, and based on the available information, I am of the opinion that [ZGZ] does not have the capacity to revoke her existing Power of Attorney and make a new one in its place.

Application for Extension of time

A notice of appeal must be filed within certain time frames as provided for in r 25(4) of the Civil and Administrative Tribunal Rules 2015 (NSW): 25 External and internal appeals … (4) Unless the Tribunal grants an extension under section 41 of the Act, an external or internal appeal must be lodged: (a) in the case where the enabling legislation specifies the period within which the appeal is to be made - within the period specified, or (b) in the case of an internal appeal against a decision made in residential proceedings - within 14 days from the day on which the appellant was notified of the decision or given reasons for the decision (whichever is the later), or (c) in any other case - within 28 days from the day on which the appellant was notified of the decision to be appealed or given reasons for the decision (whichever is the later). …
Accordingly, the timeframe applicable in these proceedings was 28 days from the day on which the Appellant was notified of the decision or given reasons, whichever was the later. The reasons for decision were issued subsequent to the order in this matter. The Tribunal's records indicate that the reasons were issued to the parties on 21 August 2015 so accordingly any notice of appeal was required to be filed by late September 2015.
The Tribunal has the authority to allow for an extension of time for the notice of appeal to have been filed under s 41 of the CAT Act: 41 Extensions of time (1) The Tribunal may, of its own motion or on application by any person, extend the period of time for the doing of anything under any legislation in respect of which the Tribunal has jurisdiction despite anything to the contrary under that legislation. (2) Such an application may be made even though the relevant period of time has expired.
Given that the notice of appeal was filed out of time, the Appellant requested that we grant an extension up until the date the notice was actually filed, being 5 December 2017. This was opposed by both of the active respondents in the proceedings, ZGZ and ZHR.

The Appellant's application to extend time

In support of the request for an extension of the time, the Appellant stated as follows in the notice of appeal: The new evidence was not uncovered until well outside the 28 day period allowed for an Appeal. An extension of time to allow the Appeal to be filed out of time does not involve any greater prejudice to any party than if the Appeal had been filed within time, given that the new evidence highlights a significant failure to disclose as to the main and only issue in the substantive proceedings. There are potentially substantial negative consequences for [ZGZ] in the Tribunal's decision upholding the Revocation of Power of Attorney in circumstances where [ZGZ] does not have legal capacity
Counsel for the Appellant argued that the period of the delay that required explanation was limited to the period commencing 16 Jan 2017 until the notice of appeal was filed on 5 December 2017.
In his affidavit dated 12 April 2018, the Appellant states that he first saw Dr V's report in late November 2016. He provides no explanation as to how this occurred.
Correspondence and email exchanges between the Appellant's solicitors and ZHR were attached to the affidavit. The first in time was a letter dated 14 December 2016 in which the Appellant's solicitor advises ZHR that the Appellant: is aware of Dr V's report; proposes an application in the Supreme Court seeking leave to appeal the Tribunal's decision; invites ZHR to provide an explanation as to why Dr V's report was not put before the Tribunal; and enquires if the Appellant would oppose an application to the Court. ZHR replies to this correspondence expressing the view that Dr V's report was not relevant (to the proceedings), being the views of a psychologist given six months prior to the event of revocation. The exchange ends on 16 January 2017 with ZHR advising that he will take instructions from ZGZ as to any proceedings if and when such are commenced.
As to the period from 16 January 2017 until filing of the notice of appeal, counsel for the Appellant drew our attention to the following contents of the Appellant's affidavit: [13] Supreme Court Proceedings [14] I am a witness for the plaintiff in proceedings number [XXXX] in the New South Wales Supreme Court, being proceedings commenced by [Mr Q], [ZHB]'s nephew. The defendant to those proceedings is [Company AB]. [15] In or about early November 2017 [Mr Q] said to me words to the following effect: "You know the court proceedings? [Company AB] has sacked their lawyers and a new firm has been retained. They want more time to prepare their case and they gave the court an affidavit saying [ZGZ] wasn't aware of the evidence that had been filed, and hadn't been kept up to date about the directions made in court. My lawyers did a company search and said that [Mr X and Mr Y] are no longer directors of [Company AB]." [16] I was very concerned when [Mr Q] told me this, as it appeared that [ZGZ] was being taken advantage of by [ZHR] and / or [Mr X and Mr Y]. In addition, it seemed like the new lawyers were somehow involved in the removal of [Mr X and Mr Y] as directors of [Company AB], and it raised a serious issue in my mind as to who was really protecting [ZGZ] - and [ZHB]'s - interests now. If [ZHR] was not, and had not been, protecting [ZGZ]'s interests, nor her nephews, I was particularly concerned that [ZGZ] could not be adequately protecting [ZHB]'s interests. [17] Accordingly I proceeded to lodge this appeal from the NCAT June 2015 decision, and that application was filed on 5 December 2017.
On the matter of prejudice to any party if the application to extend time were to be granted, the Appellant submitted that the grant of the extension sought would not invoke any greater prejudice to any party than if they had been filed in time. Conversely, it was submitted to us that there were potential negative consequences upon ZGZ, and her husband, ZHB, in us upholding the decision on the revocation in circumstances where ZGZ does not have legal capacity could be very significant.
Counsel for the Appellant submitted that the prospects of leave being granted on the appeal were intrinsically tied to the determination of whether to grant the application to extend time. As to those prospects, it was asserted that it was obvious from the contents of Dr V's report that had it been available to the Tribunal, the Tribunal may have had a differing view as to the primary issue (ZGZ's capacity to execute the revocation). Further, the reports of other professionals and the views of the solicitor who witnessed the revocation may have been different if they have been provided with the report.
It was alleged by the Appellant that ZHR deliberately withheld Dr V's report from the Tribunal, and as a consequence, ZHR was in breach of his duty to the Tribunal to produce all available material given the inquisitorial nature of proceedings in the Guardianship Division of the Tribunal, which not only resulted in a substantial miscarriage of justice, but also called into question whether ZGZ's interests are being subverted to the interests of ZHR and/or others.

First respondent's submissions (ZGZ)

Counsel for ZGZ submitted that we should take account of the period of almost three years from the date of the Tribunal's original order confirming the revocation and now to assess the extent of prejudice to ZGZ if the applications to extend time and for leave to appeal were granted. However, it was conceded that the period relevant to examining the explanation for the Appellant's delay in commencing the proceedings was a period of approximately 11 months, being the period between when correspondence between the Appellant and ZHR in relation to Dr V's report ceased (16 January 2017) and the filing of the notice of appeal (5 December 2017).
It was emphasised to us that up until the filing of the Appellant's affidavit dated 12 April 2018, no explanation for the delay in commencing the appeal had been proffered for the period in question, either in the notice of appeal itself or subsequent submissions.
As to the explanation provided in the Appellant's affidavit (see [34] above), counsel for ZGZ argued that the explanation did not stand up to scrutiny, was internally inconsistent, and amounted to no explanation at all. Given that the affidavit suggests that a change in the directorship of Company AB caused the Appellant to be concerned that ZGZ appeared to have been taken advantage of by ZHR and/ or her nephews (Mr X and Mr Y), counsel opined that it made no sense that removal of directors who the Appellant viewed as may be taking advantage of ZGZ would be the basis of concern that spurred the Appellant to commence the appeal.
If leave to appeal were to be granted in the proceedings, counsel for ZGZ argued that the prejudice to ZGZ would be "at the higher end" and that it was difficult to envisage circumstances that would involve greater prejudice. We were informed that the appeal proceedings had caused significant distress to ZGZ, and that given it was almost three years since the original decision, she had reorganised her affairs based upon a reliance on the Tribunal's orders.
It was submitted to us that ZGZ has a vested interest to rely upon the benefit of the Tribunal's decision confirming the revocation in circumstances where: the matter under appeal was decided almost three years ago; ZGZ's condition has since materially altered; and the matter was determined by a hearing involving ZGZ and other witnesses providing contemporaneous evidence that is no longer fresh in their respective minds.
Turning to the issue of the Appellant's prospects in the appeal, counsel for ZGZ submitted that the Appellant had failed to demonstrate that any grounds for leave had been satisfied, being grounds as outlined in Collins v Urban [2014] NSWCATAP 17 at [80] to [84].
In view of the significant prejudice to ZGZ if the application to extend time to appeal were granted, and the Appellant's failure to provide a satisfactory explanation for the delay in filing the appeal once he was aware of Dr V's report, counsel argued that the Appellant was obliged to demonstrate that his case has substantial merit rather than merely being fairly arguable: Tomko v Palasty (No 2) [2007] NSWCA 369 at [14].
It was ZGZ's position that at the hearing conducted on 10 July 2015, the Tribunal was able to assess the evidence relevant to the time of revocation and, most importantly, form its own conclusions in observing ZGZ herself in the proceedings. The Tribunal accepted that medical experts disagreed in relation to ZGZ's condition(s) and was unable to reach a conclusion as to the category of cognitive impairment which was in existence. The report of Dr V would not have altered this position as it would have provided just another divergent opinion.
The significance attributed to Dr V's report by the Appellant was challenged by ZGZ's counsel who submitted that the report: was obtained illegally, improperly, and/or without the consent of ZGZ; was based on inappropriate and unorthodox methodological processes which directly affected the results of the report; was prepared six months prior to the revocation in circumstances where there were at least two more reliable expert reports that were prepared at or about the time of revocation; and that it does not conclusively opine that ZHA lacks decision-making capacity.
It was also put to us that the contents of the report, which indicated at [19.11] (see [25] above) that ZGZ was able to give reasons as to why she wanted to revoke the existing Power of Attorney (and these reasons were stable across all three occasions Dr V met with ZGZ), was supportive of a conclusion that ZGZ understood the purpose of the revocation, in satisfaction of the relevant legal test, and therefore the conclusion of the report that ZGZ lacked the requisite capacity to execute the revocation was questionable within itself.
Finally, ZGZ's submissions asserted that the Appellant was not motivated by concern for her, but rather, the appeal proceedings were an attempt to stifle proceedings in the Supreme Court whereby AB Company was defending a claim by Mr Q that he has a proprietary interest in a property owned by the company. In support of this claim, ZGZ's counsel noted that the Appellant was a witness for Mr Q in those proceedings and that the same solicitors acted for both the Appellant in the proceedings before us and for Mr Q in the Supreme Court proceedings.

Fourth respondent's submissions (ZHR)

Much of the submissions of ZHR was a restatement of ZGZ's submissions, and simply noted that ZHR supported ZGZ's position on the appeal.
In his submissions, ZHR rejected a suggestion that he had deliberately withheld Dr V's report from the Tribunal. He asserted that ZGZ's sister, together with one of ZGZ's carers, had made the connection for ZGZ to be assessed by Dr V and that he had only become aware that Dr V was not a "specialist medical practitioner" after he had received her report.
ZHR considered that Dr V's report was not relevant to the proceedings as it was not prepared by a medical practitioner and it was not contemporaneous to the act of revocation. In support of the proposition that this was his view as at the time of the hearing on 10 July 2016, ZHR drew our attention to his statement of evidence that was before the Tribunal dated 2 July 2015. In that statement he notes that ZGZ was referred to a psychologist. ZHR submitted that the psychologist he was referring to, whilst unnamed, was Dr V. The relevant paragraph states: [4] [ZGZ]'s sister, [Ms A] (whom I will now refer to as [A]), arrived in Sydney from her home in New York about this time. [Ms A] provided me with copies of [Dr R]'s letter to [Dr T] dated 23 February 2014 and of [Dr T]'s report dated 9 March 2014. I was therefore on notice that [ZGZ] might have mental capacity issues should she wish to change and of the documents that [ZHA] had sent to me. I telephoned [Ms A] on 11 September 2014 and she informed me that [ZGZ] wanted to remove [ZHA] from his roles as attorney and enduring guardian. I told [Ms A] that I would need to see a report from a doctor saying that [ZGZ] had the mental capacity to revoke the existing documents and to make new ones. [Ms A] advised me that [ZGZ]'s general practitioner had referred [ZGZ] to a psychiatrist for this purpose. However, it turned out that this person was not a doctor but a psychologist. [ZGZ] was, in due course, referred to [Dr O], a consultant psychiatrist, but more of that later.
ZHR noted that ZGZ has, for two and a half years, relied upon and acted in accordance with the belief that she had effectively revoked the power of attorney she had made appointing various people including the Appellant. ZGZ had made other arrangements in relation to her affairs which no doubt would be adversely affected should the Appellant be given leave to appeal out of time.

Consideration

The Appellant bears the burden of persuading us that there are proper grounds to grant an application for an extension of time: Tomko v Palasty (No 2) [2007] NSWCA 369; (2007) 71 NSWLR 61 at [80]; Nanschild v Pratt [2011] NSWCA 85 at [44].
The principles to be applied by the Appeal Panel on applications for an extension of time in which to appeal were considered in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22. The Appeal Panel relevantly said: [22] The considerations that will generally be relevant to the Appeal Panel's consideration of whether to grant an extension of time in which to lodge a notice of appeal include: (1) The discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the appellant -Gallo v Dawson [1990] HCA 30, 93 ALR 479 at [2], Nanschild v Pratt [2011] NSWCA 85 at [38]; (2) The discretion is to be exercised in the light of the fact that the respondent (to the appeal) has already obtained a decision in its favour and, once the period for appeal has expired, can be thought of as having a "vested right" to retain the benefit of that decision - Jackamarra v Krakouer (1998) 195 CLR 516 at [4], Nanschild v Pratt [2011] NSWCA 85 at [39] and, in particular, where the right of appeal has gone (because of the expiration of the appeal period) the time for appealing should not be extended unless the proposed appeal has some prospects of success - Jackamarra at [7]; (3) Generally, in an application for an extension of time to appeal the Appeal Panel will be required to consider: (a) The length of the delay; (b) The reason for the delay; (c) The appellant's prospects of success, that is usually whether the applicant has a fairly arguable case; and (d) The extent of any prejudice suffered by the respondent (to the appeal), - Tomko v Palasty (No 2) (2007) 71 NSWLR 61at [55] (per Basten JA) but note also [14], Nanschild v Pratt [2011] NSWCA 85 at [39] to [42]; and (4) It may be appropriate to go further into the merits of an appeal if the explanation for the delay is less than satisfactory or if the opponent has a substantial case of prejudice and, in such a case, it may be relevant whether the appellant seeking an extension of time can show that his or her case has more substantial merit than merely being fairly arguable - Tomko v Palasty (No 2) (2007) 71 NSWLR 61 at [14] (per Hodgson JA, Ipp JA agreeing at [17]) and Molyneux v Chief Commissioner of State Revenue [2012] NSWADTAP 53 at [58] - [59].

Length of delay and prejudice to the first respondent (ZGZ)

The length of delay in the filing of the notice of the appeal is significant on any analysis. We accept that for the purpose of evaluating the Appellant's explanation for delay we should limit our focus to the period of approximately 11 months, being the period between when correspondence between the Appellant and ZHR in relation to Dr V's report ceased (16 January 2017) and the filing of the notice of appeal (5 December 2017). However, for the purpose of taking into consideration any prejudice to ZGZ if leave to extend time were to be granted, the period from the date of the original order (10 July 2015) up until the re-examination of the matter is relevant, a period in excess of three years.
We are cognisant that undue delay of itself can impose strain and uncertainly on litigants, contrary to the interests of justice: Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27.
We accept the submissions of counsel for ZGZ that she would suffer prejudice if the application were granted given that over three years have gone by since the original order confirming the revocation was made and ZGZ has arranged her affairs based on a reliance upon the original order remaining in place. Third parties have almost certainly relied upon the actions of ZGZ's agents over the last three years, agents appointed consequent upon the Tribunal's order confirming the validity of the revocation.
We consider that ZGZ would be further prejudiced if a re-examination of her capacity to enter into the revocation were to take place in excess of three years after the revocation took place. The original hearing before the Guardianship Division of the Tribunal occurred within four months of the revocation. The Tribunal's reasons for their orders clearly illustrate that ZGZ's participation and engagement in the hearing of 10 July 2015 played a role in their ultimate conclusion: (3) Despite the view that [ZGZ has a level of cognitive impairment, the Tribunal concluded that taking into account [ZGZ]'s overall presentation during the hearing as well as the evidence of [Mr U], [ZHR] and [Dr O], [ZGZ] understood the general nature and powers of an attorney, though she did incorrectly opine that an attorney could oversee the actions of an enduring guardian. (emphasis added)
ZGZ is now 89 years of age and it is not in dispute that she has a degree of cognitive impairment. It is not surprising that, as submitted by her counsel, ZGZ's condition over the last three years has "materially altered". The relative proximity of the conduct of a hearing and the act of revocation cannot be replicated. In terms of her ability to participate in a further hearing and provide her views on the revocation, ZGZ's interests would be prejudiced, when compared to the contemporaneity of the proceedings under appeal.
Each of these considerations highlight the significant vested interest that ZGZ has in retaining the order of the Tribunal of 10 July 2015 and draw us to conclude that she would suffer significant prejudice if the extension of time sought by the Appellant were to be granted.

Reasons for the delay

The Appellant failed to provide any explanation in the notice of appeal for the delay in lodging the appeal after he first became aware of Dr V's report the subject of the appeal. The first document submitted to us providing an explanation was the Appellant's affidavit of 12 April 2018 (see [34] above).
The Appellant asserted in his affidavit that he initially had decided not to challenge the Tribunal's orders upholding the revocation after having become aware of the Dr V report. However, he proceeded to do so as a result of a conversation with Mr Q relating to information stated to have been obtained as a result of proceedings in the Supreme Court, proceedings commenced by Mr Q against AB Company. That information was reported as being that searches conducted by Mr Q's lawyers indicated that ZGZ's nephews, Mr X and Mr Y, were no longer directors of AB Company.
It was the Appellant's position that this information made it appear to him that ZGZ was being taken advantage of by ZHR and/or Mr X and Mr Y. He was concerned as to who was protecting ZGZ's interests (and ZHB's) due to the apparent removal of Mr X and Mr Y as directors.
We were not provided with any evidence by the Appellant which confirmed the change in directors as suggested by his reported conversation with Mr Q. We were not provided with any elaboration as to how the purported changes in directors supported the proposition that ZGZ was being taken advantage of by ZHR. We were not provided with any explanation as to how the purported removal of Mr X and Mr Y as directors led the Appellant to the simultaneously held and incongruous view that ZGZ was being taken advantage by Mr X and Mr Y and that her interests may not be protected if they were no longer directors of AB Company.
The Appellant's explanation for the delay in filing the notice of appeal for a period of some 11 months was not supported by any corroborating evidence and was not convincing. We concur with the submissions of ZGZ's counsel that the contents of the Appellants' affidavit did not amount to an explanation for the delay in question. As was noted by the Appeal Panel in the matter of T & S Nominees Pty Ltd v Chief Commissioner of State revenue [2017] NSWCATAP 6 at [40]: [40] Clearly, an applicant would be expected to give an explanation as to the default (to file within time). As noted in Chen v Baxter [2014] NSWCATAP 50 at 40: The lack of an explanation of the delay weighs against granting an extension of time: Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27

Prospects of success

One of the considerations the Appeal Panel must take into account on determining an application to extend time to file an appeal is the Appellant's prospects of success, that is, usually whether the applicant has a fairly arguable case. However, it may be relevant whether the Appellant can show that his or her case has more substantial merit than merely being fairly arguable if the explanation for delay is less than satisfactory or if the opponent has a substantial case of prejudice: Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 at [22]. This principle was clearly enunciated by Hodgson JA in Tomko v Palasty (No 2) [2007] NSWCA 369 at [14]: [14] In my opinion, there may be circumstances where it is appropriate to go further into the merits of the case of a person seeking an indulgence such as this, than to ask whether or not the case is fairly arguable. If such a person has a reasonable explanation of delay and the opponent does not have a strong case of prejudice, then a fairly arguable case is sufficient. However, if the explanation for the delay is less than satisfactory, or if the opponent has a substantial case of prejudice, then it may be relevant that the person seeking the indulgence shows that his or her case has more substantial merit than merely being fairly arguable.
As outlined above, we have concluded that: the explanation provided by the Appellant as to why he delayed for a period of some 11 months to commence his appeal was not convincing and less than satisfactory; and that ZGZ would suffer significant prejudice if the extension of time sought by the Appellant were to be granted. Accordingly, it is appropriate that we consider the Appellant's prospects of success in the appeal through the prism of whether or not it can be described as having substantial merit, rather than being merely fairly arguable.
Counsel for the Appellant submitted to us that it was obvious that had Dr V's report been before the Tribunal below there was a significant likelihood that it would have affected the outcome, that is, the Tribunal may have made orders other than upholding the revocation. We do not share this view.
There are several factors which led us to take a contrary view as to the potential significance of Dr V's report to that asserted by the Appellant.
First, as previously outlined (see [22] above), the Tribunal's reasoning makes it clear that they had formed the view that whilst ZGZ had a cognitive impairment, they were satisfied that she was able to understand the nature and the effect of her actions in executing the revocation. In reaching this position the Tribunal had assessed various divergent opinions as to ZGZ's capacity from several health professionals. We are not satisfied that the nature of Dr V's report is such that it would have done anything other than add to the number of divergent reports the Tribunal had before it. It would not have been the only report available to the Tribunal which questioned ZGZ's capacity to perform the act of revocation.
Second, Dr V's report was not as contemporaneous to the act of revocation as it could have been and was not as contemporaneous as other reports from health professionals on which the Tribunal relied. Dr V met with ZGZ over three sessions in September and October 2014, some five months prior to the revocation. Whilst not lacking in all contemporaneity, this five-month period leads us to conclude that the Tribunal would have afforded Dr V's report a lesser degree of weight, had it been available to them, compared to more contemporaneous reports, such as the report of consultant psychiatrist Dr O of 26 February 2015. That report was compiled from an assessment of ZGZ conducted at some time between 12 and 26 February 2015, so no more than five weeks before the revocation, as opposed to the five-month period applicable to Dr V's report.
Third, there is some weight in the argument that the conclusions of Dr V's report are not supported by parts of the report cataloguing Dr V's assessment of ZGZ. At [19.11] of Dr V's report (see [25] above), it is reported that ZGZ was able to give reasons as to why she wanted to revoke the previous enduring power of attorney appointing the Appellant and others, and that her reasons for doing so were stable over all three meetings she had with ZGZ. This reported stability weighs towards a conclusion that ZGZ understood the nature and effect of the revocation in satisfaction of the requisite legal test: see Gibbons v Wright (1954) 91 CLR 423 at [438]. Yet after analysing ZGZ's ability to enter into a new enduring power of attorney, a separate event to revocation, Dr V concludes that ZGV does not have capacity to enter into the revocation.
Taking each of these considerations into account we are not satisfied that had Dr V's report been before the Tribunal there was a significant likelihood that the Tribunal would have made different orders to those made. The Appellant has failed to satisfy us that his appeal has substantial merit of success.
In reaching this conclusion, we are mindful that the Appellant had asserted that ZHR had deliberately withheld Dr V's report from the Tribunal and that this weighed in favour of a grant of leave on the appeal for two reasons: first, it meant that ZHR was in breach of a duty to place all material evidence before the Tribunal; and second, it raised the question as to whether ZGZ's interests were being adequately protected given ZHR is now an appointed attorney of ZGZ.
It is correct that ZHR did not place Dr V's report before the Tribunal. However, we accept that ZHR's statement of evidence provided to the Tribunal below referred to ZGZ's engagement with Dr V (see [51] above). He formed the view that the report that stemmed from that engagement was not relevant to the proceedings. In any event, the Appellant did not direct us to any legal authority to support his proposition that ZHR, a solicitor under instructions by ZGZ to defend the application questioning her capacity, was under a duty to place the material in question before us. Nor did the Appellant provide persuasive submissions to us to support his claim that a failure to tender Dr V's report by ZHR called into question his bona fides as an attorney.

Conclusion

In summary, it is our view that the Appellant's prospects on the appeal are low. We are therefore not satisfied that the appeal has substantive merit.
We consider that the Appellant's explanation for the delay in filing the appeal is not satisfactory and that ZGZ would suffer significant prejudice if we were to grant the extension of time application requested of us.
Taking each of these considerations into account we conclude that the extension of time requested for lodgement of the appeal should be refused, with the consequence that the order made by the Tribunal on 10 July 2015 stands, and the appeal is dismissed.

Orders 1. The extension of time application to lodge the appeal under s 41 of the Civil and Administrative Tribunal Act 2013 is refused. 2. The appeal 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 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: 19 October 2018

Civil and Administrative Tribunal Rules 2015(NSW)

See the Civil and Administrative Tribunal Act 2013(NSW)

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