ZND v ZNE

NCAT Appeal Panel|2019-11-06

Date of Decision: 13 June 2019 Before: L Organ, Senior Member (Legal)L Houlahan, Senior Member (Professional)R M Fela, General Member (Community) File Number(s): 2019/00080185

Introduction

In October 2009, now 91-year-old ZNE (the Subject Person) executed an enduring power of attorney (EPoA), appointing one of her two daughters, ZNG (the Attorney), and that daughter's husband, as her attorneys with power to act jointly and severally (the Attorneys). Shortly before making that appointment, the Subject Person revoked a general power of attorney made in 2006 in which she appointed both her daughters to act as her attorneys. The Subject Person has a diagnosis of dementia and lives alone on a farming property in rural NSW, where she has been living for most of her life.
In June 2019, the Guardianship Division of the New South Wales Civil and Administrative Tribunal (NCAT) dismissed an application (the initiating application) made by the Subject Person's daughter who had been appointed attorney under the 2006 general power of attorney but not the 2009 EPoA. In that application, that daughter, who is the Appellant in these proceedings, sought review of the operation and effect of the EPoA. In its reason for decision, the Tribunal noted that the Appellant gave as the reason for making the initiating application, her concern that "money belonging to [the Subject Person] is unaccounted for and that necessary repairs and modifications have not been made to her mother's property in a timely manner": at [4]. In addition, the Tribunal noted the Appellant's stated concern that the Subject Person had spent money on the property where she now resides, despite transferring the title to that property to the Attorney "some years ago": at [26].

Publication of the names of the parties

The publication or broadcasting of the name of any person mentioned, or otherwise involved, in an "internal appeal" against decisions made by the Guardianship Division of NCAT is prohibited: ss 65(1) and 65(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act). Being an official report of the appeal proceedings, that prohibition does not apply to these reasons: s 65(3) of the NCAT Act. Nonetheless, because of the sensitive nature of the matters discussed in these reasons, we will not refer to the parties by name.
In this appeal, the Registrar assigned pseudonyms to the parties: "ZNE" (the Subject Person), "ZND" (the Appellant), "ZNG" (the Subject Person's daughter and one of the attorneys appointed under the EPoA), "ZNF" (the Subject Person's son-in-law and one of the attorneys appointed under the EPoA). For ease of reading, in these reasons we will not refer to the parties by pseudonyms.

The decision under appeal

The Attorneys, the Appellant and the Subject Person participated in a hearing before the Tribunal in June 2019. In its reason for the decision to dismiss the initiating application, issued to the parties on 14 August 2019 (the reasons), the Tribunal observed that the Subject Person presented as a "very proud and dignified woman" who now had "a significant level of cognitive impairment": at [19]. In addition, the Tribunal noted that the Subject Person was able to "give a very basic account of her current financial situation": at [20].
By way of background, the Tribunal noted at [20] that the Subject Person and her late husband had decided to give to their daughters their three farming properties before they died. Sometime before his death in 2009, the Subject Person's husband gave the Appellant a Queensland property held in his name. In the late 1990s, the Subject Person gave the Attorney two NSW properties held in her name. The Subject Person continues to reside in one of those properties (the family property).
The Tribunal recorded at [21] the Subject Person's views about whether the Appellant should be given access to information about her financial affairs. The Tribunal noted that the Subject Person stated "very clearly" that she did not want the Appellant to be able to "see her bank statements and know about other aspects of her financial affairs" saying her financial affairs did not have "anything to do with [the Appellant]". The Tribunal noted that the Appellant had refused to give the Subject Person details of her late husband's estate or to let her see his will: at [21].
The Tribunal recorded at [22] the statement made by the Subject Person that "if someone has to assist her with her financial affairs she wants [the Attorney] to do this" as she trusts her and because the Attorney has "done the most to help her over the years".
The Tribunal noted that the Subject Person acknowledged that her daughters "Don't get on particularly well": at [19]. The Tribunal described as "telling" a letter from the Subject Person's longstanding solicitor to the Appellant, dated 27 February 2019, in which the Solicitor rebuked the Appellant for taking the Subject Person to see another solicitor at his firm while he was on holidays and requesting a copy of the EPoA. The solicitor noted that the Appellant had alleged that the Attorney had hidden copies of the Subject Person's bank statements from both the Subject Person and the Appellant. The solicitor noted that the Attorney claimed that she had arranged for the Subject Person's bank statements to be sent to her address because she was concerned about her mother's privacy given that carers were now attending the Subject Person's home on a regular basis. The solicitor reported that during a consultation with the Subject Person in the absence of the Attorney, the Subject Person made clear to him that she did not wish to change the arrangement where her financial affairs were managed by the Attorney. Referring to the alleged comment made by the Appellant that it was "wrong of the Subject Person to have spent some of her 'inheritance' to build a woolshed on [the family property]", the solicitor wrote that that decision was made at a time when the Subject Person had "her full faculties" and that the Subject Person was and is entitled to spend her money as she sees fit.
The Tribunal went on at [26]-[33] to detail the concerns raised by the Appellant about the conduct of the Attorney: 1. Lack of access to the Subject Person's bank statements: the Appellant asserted that when she visited the Subject Person in late 2018 she was unable to locate her mother's bank statements. When she asked the Attorney to provide copies, the Attorney did not respond to her request. 2. Her belief that the Subject Person should hold a term deposit of about $300,000, representing "the balance of two inheritances". [The Attorney claims the Subject Person received inheritances of $217,000 in 2007 and a further $90,000 in 2013.] 3. The fact that the Subject Person had paid for a shearing shed to be built on the family property in circumstances where the Subject Person had transferred ownership of that property to the Attorney. 4. The alleged failure by the Attorney to account for the proceeds of the sale of sheep and wool owned by the Subject Person. 5. The alleged failure by the Attorney to undertake repairs to the family property in a timely manner.
The Tribunal recorded at [27] that at the commencement of the hearing the Appellant stated that her application was a "bit of a fishing expedition". The Tribunal observed that in an attempt to find out more about the Subject Person's financial affairs and those of her sister, the Appellant has recently sought information from the Subject Person's banks and, without authority, organised for a real estate agent to value the family property. The Tribunal noted at [27] that the Appellant stated that she had an expectation that there would be some money available to her and her family from the Subject Person's estate and, in addition, believes that the value of the properties the Attorney received from her mother is now greater than the property the Appellant received from her father.
After detailing the Attorney's response to each of the concerns raised by the Appellant, the Tribunal concluded that it was not in the best interests of the Subject Person, nor would it better reflect her views, to either conduct a review or make orders under s 36 of the Powers of Attorney Act 2003 (NSW), giving these reason for that decision: i. Firstly [the Subject Person] does not want her daughter [the Attorney] to give an account of her dealings as attorney to [the Appellant] as [the Appellant] now requests. [The Subject Person] also wants her daughter [the Attorney] to look after her financial affairs for her. While we accept that [the Subject Person] has a significant level of cognitive impairment we have placed substantial weight on her evidence before us that she does not want [the Appellant] to have details of her financial affairs. That evidence she gave before us was consistent with what she told her Solicitor … and is also consistent with her decision to appoint [the Attorney] as her attorney and not [the Appellant]. In our view we should be very cautious about taking any step to intervene in [the Subject Person]'s financial affairs over her opposition by initiating a Powers of Attorney Act, s 36 review of the EPoA. ii. Many years ago [the Subject Person] made a decision to transfer to her daughter [the Attorney], two valuable framing properties. This was part of a family agreement under which her other daughter [the Appellant], received a gift of another valuable farm property from [the Subject Person]'s husband. There appears no dispute that at the time she made the gift of the two properties to [the Attorney], [the Subject Person] had capacity to make that gift. Subsequently [the Subject Person] made provision for her daughter [the Attorney] to become her attorney. iii. An attorney is in a fiduciary relationship with the person whose affairs they manage. An attorney must act in the best interests of the principal and must not obtain a personal benefit other than specifically provided for in the executed enduring power of attorney (Powers of Attorney Act, s 12(1)). Although [the Attorney] holds funds in a joint account with [the Subject Person], there was no evidence before us which indicated that this has been done with a view to [the Attorney] benefiting personally from those funds in the future or that she has to date benefited from these funds. We found [the Attorney] to be a credible and truthful witness. We accept her explanation that [the Subject Person]'s funds from one of her bank accounts were put in a joint account so that either [the Attorney] or [the Subject Person] could operate the account. v. At a prima facie level, we find there is a lack of evidence to indicate that [the Attorneys], in the roles of [the Subject Person]'s attorneys, have been acting contrary to the best interests of [the Subject Person], or in breach of their fiduciary obligations. Except for the issue of [the Attorney] holding an account with [the Subject Person]'s funds in joint names with her mother, there is no evidence of financial mismanagement or maladministration by [the Attorneys] such that [sic]. No obvious irregularity which would be an indicator of obvious wrongdoing or poor administration has been identified on the evidence available to us. In our view the fact that [the Attorney] has a joint account with her mother is insufficient basis to justify the exercise of our discretion to review the operation and effect of the EPoA in the absence of other evidence suggesting that [the Attorney] has personally benefited from this arrangement. vi. We accept that [the Attorneys] are respecting [the Subject Person]'s wishes in relation to non-disclosure of her financial affairs to [the Appellant]. That view is consistent with [the Subject Person]'s own evidence to us that she did not want [the Appellant] to be privy to this information. vii. The orders under s 36 of the POA which are sought by [the Appellant] are broad reaching in their effect and scope and not often granted except where there is clear justification for them in terms of benefit to the welfare and interests of the person who is the subject of the application. We are not satisfied in this matter that there is clear justification for such orders. viii. Such orders could also cause disruption to the proper course of management and need to be justified by an applicant demonstrating a strong case for intervention. In this matter we consider [the Appellant]'s application is based on supposition and suspicion rather than persuasive and compelling evidence. ix. The Tribunal's paramount concern is the welfare and interests of [the Subject Person]. There was no compelling evidence before us that her needs are not being met or that her as available assets are not being used to advance her welfare and quality of life. She is living on a property where she has lived most of her life and expresses a clear wish to remain doing so. The evidence before us indicates [the Subject Person] has always lived modestly. She is receiving support services in her home and there is no evidence before us that her care needs are not being met. [The Subject Person] still has access to funds which she can withdraw with assistance or alternatively she can make a request to [the Attorney] for funds to be made available for purchases or other expenditure to enhance her quality of life. x. It appeared to the Tribunal that a predominant concern of [the Appellant]'s was that [the Attorney] had not informed her of her mother's current financial situation and has not been open and transparent. However, an attorney is not required to keep third parties informed of his or her decisions or provide information (for example, accounts and other information) to such persons on his or her management of the principal's estate. Further, many of the issues of concern raised by [the Appellant] relate to the period prior to when [the Attorney] commenced to use the EPoA and when, on the evidence before us, [the Subject Person] was still actively managing her own financial affairs. xi. There is no statutory requirement that the attorney keep records and accounts. However, a general law obligation exists… xii We accept [the Attorney's] evidence that she maintain records and accounts on the administration of [the Subject Person]'s estate since she commenced acting as her mother's attorney approximately 12 months ago.

Grounds of appeal

The Appellant has a right to appeal against a decision made by the Tribunal on any question of law or, with the leave of the Appeal Panel, on any other ground: s 80(2)(b) of the NCAT Act. The Appellant appeals on questions of law, and, in addition, seeks leave to appeal.
In the Notice of Appeal, under the heading "Orders the NCAT Appeal Panel should make", the Appellant wrote: 1. "An order that the Attorneys be made to account for the $200,000 missing from the Subject Person's accounts, and to reimburse [the Subject Person]. 2. An order that the Attorneys be removed from the position to stop the erosion of the Subject Person's accounts for expenses unrelated to [the Subject Person]; 3. An order that a new Attorney be appointed so that modifications and services are put in place for the Subject Person as she ages, in a timely manner; 4. Should the public trustee be appointed? ... to pursue the recovery of funds."
Throughout the appeal, the Appellant provided a detailed commentary about the purported shortcomings of the facts found and conclusions reached by the Tribunal. The Attorney responded to that commentary and, in addition, referred to additional matters which she asserted supported the decision made by the Tribunal. In their submissions both parties referred to material which they submitted supported their respective contentions, however often failed to distinguish between material which had been before the Tribunal and new material. Self-evidently, this made the task of determining the appeal somewhat difficult. The role of the Appeal Panel is not to reconsider the merits of the initiating application. Rather the Appeal Panel's task is to decide whether the Tribunal erred with respect to the purported questions of law identified by the Appellant and/or whether leave should be granted to permit the Appellant to appeal on grounds other than a question of law. It is for this reason we have not addressed all of the submissions made by the parties and confined our consideration to the purported questions of law raised in the appeal, and the questions of whether leave should be granted to permit the Appellant to appeal on grounds other than a question of law, or whether the power conferred by s 80(3) of the NCAT Act, to deal with the appeal by way of a new hearing should be exercised.
Having considered the grounds of appeal listed in the Notice of the Appeal and the written and oral submissions made by the Appellant, we understand the purported questions of law raised in the appeal to be: 1. Whether, in deciding to review or not to review the operation and effect of the EPoA, the Tribunal was obliged to exercise its "investigative powers" and, if so, whether the Tribunal failed to do so? 2. Whether the decision made by the Tribunal not to exercise the discretion conferred by s 36(1) of the Powers of Attorney Act to conduct a review of the operation and effect of the EPoA, was "legally unreasonable"? 3. Whether the Tribunal failed to consider (i) passbooks relating to bank accounts held by the Appellant, and (ii) a DVD containing a sound recording of an alleged conversation between the Appellant and the Subject Person, and, if so, whether that material was relevant and significant? 4. Whether before the commencement of the hearing, the Tribunal met with the Attorneys and, if so, whether that gives rise to a reasonable apprehension of bias?
In addition, the Appellant seeks leave to appeal on the grounds that fresh evidence exists, namely, the Subject Person's Commonwealth Bank passbook and specifically the entries made after the hearing of the initiating application, and a photograph of the Subject Person's home.

Ground 1: in deciding to review or not to review the operation and effect of the EPoA, was the Tribunal obliged to exercise its "investigative powers", and if so, did the Tribunal fail to do so?

The Appellant contends that the Tribunal was obliged to use its "investigative powers to stop elder abuse" and to direct the Attorney to provide specific information about the "whereabouts of the Subject Person's money". She asks rhetorically "what are [the Attorneys] hiding from Mum and the Tribunal?". In addition, she contends that the Tribunal was required, but failed, to investigate the concerns she raised about the actions taken by the Attorney with respect to the "$300,000 + of inherited funds and the large transactions regularly skimmed from Mum's pension and account" together with the funding of the woolshed on the family property.
The Appellant contends that before exercising the discretion to not conduct a review of the operation and effect of the EPoA, the Tribunal was obliged to use its "investigative powers" to investigate the concerns she raised about the Attorney's alleged misuse of her powers. She contends that the Tribunal was obliged to direct the Attorney to produce all relevant records relating to the Subject Person's estate for the period 2000 to date. (We note here that the Tribunal found that the Attorneys did not commence exercising their functions under the EPoA until mid-2018: at [29].) In submissions filed on 31 October 2019, the Appellant particularised the documents which she asserted the Tribunal was obliged to require the Attorney to produce (period unspecified): the Attorneys' tax returns; all accounts, invoices and receipts relating to the "farm bills"; all expenditure relating to the Subject Person's pension; all financial transactions relating to the Attorney's properties and documents relating to the joint account.
The Attorney disputes the contention that the Tribunal erred by failing to exercise its "investigative powers". She points out that many of the financial decisions about which the Appellant complains were made by the Subject Person before the onset of dementia at a time where there is no dispute that the Subject Person had full decision-making capacity. The Attorney asserts that she was open and forthcoming in the proceedings before the Tribunal and points to the statement of the Subject Person's assets and expenses which she prepared, together with the bundle of supporting documents she filed in the proceedings before the Tribunal.
Before considering the respective submissions made by the parties it is useful to look at the statutory framework which governs the exercise of the discretion to conduct a review of an EPoA and the nature of the Tribunal's power to make inquiries.

The discretion to conduct a review of an EPoA

On the application of an "interested person", a review tribunal (the Supreme Court or NCAT) may decide to review the operation and effect of a "reviewable power of attorney", or to not carry out such a review: s 36(1) of the Powers of Attorney Act. In that Act, a "reviewable power of attorney" includes an "enduring power of attorney": ss 33(1), 33(2). An enduring power of attorney is 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).
Section 36 of the Powers of Attorney Act provides: 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. … (4) Orders relating to operation and effect of power A review tribunal may, if satisfied that it would be in the best interests of the principal to do so or that it would better reflect the wishes of the principal, make any one or more of the following orders relating to the operation and effect of a power of attorney: (a) an order varying a term of, or a power conferred by, the power of attorney, (b) an order removing a person from office as an attorney, (c) an order appointing a substitute attorney to replace an attorney who has been removed from office by a review tribunal or who otherwise vacates the office, (d) an order reinstating a power of attorney that has lapsed by reason of any vacancy in the office of an attorney and appointing a substitute attorney to replace the attorney who vacated office, (e) an order directing or requiring any one or more of the following: (i) that an attorney furnish accounts and other information to the tribunal or to a person nominated by the tribunal, (ii) that an attorney lodge with the tribunal a copy of all records and accounts kept by the attorney of dealings and transactions made by the attorney under the power, (iii) that those records and accounts be audited by an auditor appointed by the tribunal and that a copy of the report of the auditor be furnished to the tribunal, (iv) that the attorney submit a plan of financial management to the tribunal for approval, (f) an order revoking all or part of the power of attorney, (g) such other orders as the review tribunal thinks fit. …
As explained by Slattery J in Susan Elizabeth Parker v Margaret Catherine Higgins & Ors [2012] NSWSC 1516 at [42], ss 36(1) and 36(2) of the Powers of Attorney Act give the review tribunal, here NCAT, a two-step discretion. The review tribunal may first exercise a discretion to "decide to review" the operation and effect of a reviewable power of attorney or "not to carry out such a review": s 36(1). If the review tribunal decides to exercise that discretion, it may exercise a further discretion "whether or not to make an order" under [s 36]": s 36(2). Where, as here, the review relates to the operation and effect of the power of attorney, "if satisfied that it would be in the best interests of the principal to do so or that it would better reflect the wishes of the principal", the review tribunal may make one or more of the orders listed in s 36(4), which include orders of the type sought by the Appellant in the original application: that is, orders under ss 36(4)(b) and 36(4)(e).
The Powers of Attorney Act does not expressly state the considerations relevant to the exercise of the discretions conferred by ss 36(1) and 36(2). However, as pointed out by Slattery J in Susan Elizabeth Parker at [110], where, as here, the review relates to the operation and effect of a reviewable power of attorney, s 36(4) gives guidance as to the exercise of these "two successive discretions". The preamble to that sub-section requires the review tribunal to be satisfied that "it would be in the best interests of the principal to do so" or that "it would better reflect the wishes of the principal", before making any one or more of the orders listed in that sub-section. His Honour commented at [110]: [T]hese types of consideration are particularly apposite to a situation where the principal has lost capacity and cannot assist the Court with information about the principal's own interests or wishes, a situation which Courts will often face in the exercise of s 36 powers.

The nature of the Tribunal's power to inquire

The NCAT Act permits the Tribunal to "inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice": s 38(2). In addition, the Tribunal "is to ensure that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue": s 38(6)(a).
In addition to these general inquiry powers, the Tribunal has express powers to: 1. call any witness of its own motion, examine any witness on oath or affirmation or require evidence to be verified by a statutory declaration, and examine or cross-examine any witness to such extent as the Tribunal thinks proper in order to elicit information relevant to the exercise of the functions of the Tribunal in any proceedings: s 46(1); and, 2. direct a registrar to issue a summons for a person to attend a hearing to give evidence or to produce documents to the Tribunal: ss 46(2), 48(1).
In addition to the powers conferred by the NCAT Act, the Powers of Attorney Act gives the Tribunal a wide range of inquiry-type powers. These include the power to make orders "directing or requiring that an attorney furnish accounts and other information to the tribunal or to a person nominated by the tribunal"; "that an attorney lodge with the tribunal a copy of all records and accounts kept by the attorney of dealings and transactions made by the attorney under the power"; "that those records and accounts be audited by an auditor appointed by the tribunal and that a copy of the report of the auditor be furnished to the tribunal": s 36(4)(e). In contrast to the powers conferred by the NCAT Act, these powers can only be exercised if the Tribunal decides to exercise the discretions to proceed to conduct a review into the operation and effect of the EPoA (s 36(1)), and to make orders under s 36 (s 36(2)), and, in addition, is satisfied that the pre-condition to the exercise of the power to make orders under s 36(4) is met. That is, that it would be in the best interests of the principal to make such orders, or, that it would better reflect the wishes of the principal.

Consideration

There can be no argument that before exercising the discretion to decide to review the operation and effect of the EPoA or not to carry out such a review", it was open to the Tribunal to exercise the inquiry powers conferred by the NCAT Act. For example, the Tribunal was permitted, as it did, to question the Attorney about the exercise of her powers under the EPoA, and to put to her the allegations made by the Appellant: s 46(1) of the NCAT Act. In addition, it was open to the Tribunal to request the Attorney to produce documents in addition to those she filed in the appeal, such as bank statements, invoices for alleged expenses, and in default, to direct the Registrar to issue the Attorney with a summons for the production of those documents: s 48 of the NCAT Act.
The question raised by this ground is whether the Tribunal was obliged to exercise its powers to make inquiries, specifically to require the Attorneys to produce documents of the type the Appellant claims are relevant to the exercise of the discretion to conduct a review of the operation and effect of the EPoA. The answer to that question requires consideration of the nature of the powers to inquire conferred by the NCAT Act - whether they are obligatory or permissive. The power conferred by s 38(2) - "the Tribunal … may inquire into and inform itself on any matter in such manner as it think fit" (emphasis added) - is plainly permissive. However, with respect to the power conferred by s 38(6)(a) of the NCAT Act, it is less clear-cut.
This issue was considered by the Appeal Panel (differently constituted) in Raissis v Anaz [2019] NSWCATAP 25 [23]. There, the Appeal Panel noted at [23] that read literally, s 38(6)(a) of the NCAT Act could be said to require the Tribunal to ensure all relevant material is disclosed to it so as to enable it to determine all of the relevant facts in issue in any proceedings. However, the Appeal Panel concluded at [24]-[26] that the provision should not be construed literally but rather construed as giving the Tribunal a power which is permissive in nature. We find that analysis persuasive. Applying that analysis, it cannot be said that s 38(6)(a) of the NCAT Act required the Tribunal to request or direct the Attorney to produce the class of documents sought by the Appellant.
In addition, we make the following observations. First, the class of documents which the Appellant contends the Tribunal was obliged to require the Attorneys to produce is extremely broad and covers the period 2000 to date. Self-evidently, it includes documents created before the EPoA came into effect, which have no apparent relevance to the factual issue in dispute, namely whether, as alleged, the Attorney had abused her position. Except in so far as decisions made by the Subject Person before the EPoA came into effect might be useful in informing the Tribunal about actions taken by the Attorneys after that date, those decisions were not relevant to whether the power to review the operation and effect of the EPoA should be exercised. (We note that the Appellant does not challenge the finding made by the Tribunal that the Attorneys commenced exercising their functions under the EPoA in about June 2018: at [29], [39(xii)].)
Second, as noted above, the Tribunal used its power to inquire, albeit not to the extent the Appellant considered necessary and appropriate. The sound recording of the hearing reveals that the Tribunal questioned the Attorney at length about the allegations made by the Appellant and the documents which the Attorney produced in those proceedings. Finally, we note that the Tribunal had before it several documents relating to the management of the Subject Person's financial affairs after the EPoA came into effect
This ground of appeal is rejected.

Ground 2: was the decision of the Tribunal not to exercise its power to conduct a review of the operation and effect of the EPoA "legally unreasonable"?

While not put in these terms, the Appellant contends that the Tribunal's decision not to exercise its power to conduct a review of the operation and effect of the EPoA was "legally unreasonable" in the sense used by the High Court in Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 (Li). In Li, the High Court extended the basis upon which the exercise of a discretionary power can be set aside on the ground of unreasonableness. The plurality (Hayne, Kiefel and Bell JJ) held at [68] that Wednesbury unreasonableness, that is, an irrational, if not bizarre decision, one that no reasonable person could have arrived at (per Lord Greene MR in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223), is neither the starting nor the end point for the standard of unreasonableness. The plurality held that the concept of legal unreasonableness extends to a decision which lacks "an evident and intelligible justification": [75], [76]. In Judicial Review of Administrative Action and Government Liability by M Aronson, M Groves and G Weeks (Thomson Reuters, 6th ed, 2017) the authors commented (at [6.450]) that Li "invites a qualitative assessment of the impugned discretionary decision, but it does not allow an appeal to the judicial review judge's subjective sense of reasonableness". See also GAR v Attorney General of New South Wales (No 2) [2017] NSWCA 314 at [154].
The Appellant contends that in circumstances where allegations of a serious nature had been made about the actions taken by the Attorney in the exercise of her powers under the EPoA, where the Tribunal did not have the benefit of all of the underlying documents relating to the management of the Subject Person's financial affairs after the EPoA came into effect, the decision made by the Tribunal not to conduct a review of the operation and effect of the EPoA was legally unreasonable. Furthermore, she contends that unless and until the Tribunal had conducted a "full review" of the actions taken by the Attorney, the Tribunal could not be positively satisfied that the Subject Person's estate was not at risk.

Consideration

As discussed by Slattery J in Susan Elizabeth Parker at [110], relevant considerations in the exercise of the discretion to conduct a review of the operation and effect of a reviewable power of attorney include whether it would be in the best interests of the principal or better reflect the wishes of the principal.
There can be no argument that the Tribunal had before it ample evidence to support its finding at [34(i)] that the Subject Person opposed the details of her financial affairs being disclosed to the Appellant. The Tribunal noted that the Subject Person made that clear at the hearing and had previously given instructions to that effect to her solicitor. In addition, the Tribunal noted that the evidence given by the Attorney was consistent with the Subject Person's stated views.
However, that does not dispose of the question of whether it would be in best interests of the Subject Person to conduct a review of the operation and effect of the EPoA in circumstances where there were allegations of financial impropriety and the Subject Person was unable to properly assess or comment upon the truth or otherwise of those allegations, given her evident cognitive decline.
While the Tribunal had before it some documents relating to the Subject Person's finances, as the Appellant points out, it did not have all documents relating to the management of the Subject Person's finances after the EPoA came into effect. Nor, as the Appellant points out, did the Tribunal have the benefit of an audited set of accounts. This raises the question of whether in those circumstances the decision not to conduct a review of the operation and effect of the EPoA lacked an evident and intelligible justification?
Before addressing that question, we note that in Susan Elizabeth Parker at [80], Slattery J helpfully considered the question of whether a review tribunal, there the NSW Supreme Court, must conduct a "full review" of all documents associated with the operation of the subject power of attorney before deciding whether or not to conduct a s 36 review. His Honour concluded at [80] that "Something short of a full review must be able to justify the exercise of the s 36(1) discretion as to whether or not the Court should conduct a full s 36 review". That statement is not authority for the proposition that in the exercise of the discretion to conduct or not conduct a "full s 36 review", there will never be an occasion where it will be necessary to conduct a full review of all material before the tribunal before deciding to conduct or not to conduct a review of the operation and effect of the subject EPoA. Self-evidently, whether a "full review" of all material is warranted requires the review tribunal to make that assessment and this will turn on the facts of the particular case.
Returning to the question posed in [42] above, for the reasons that follow we reject the proposition that the decision made by the Tribunal not to conduct a "full s 36 review" lacked an evident and intelligible justification. First, the Tribunal found that the Attorney was a truthful and credible witness: at [34(iii)]. The Tribunal accepted the explanation given by the Attorney about the Subject Person's income and expenses. Second, while critical of the Attorney's action in failing to close the joint account held in the name of the Attorney and the Subject Person after the EPoA came into effect, the Tribunal considered that this, of itself, did not warrant the exercise of the discretion to conduct a review of the operation and effect of the EPoA in the absence of evidence to suggest that the Attorney "personally benefited from this arrangement" or had been acting contrary to the Subject Person's best interests: at [36(v)]. Third, the Tribunal found no evidence of "financial mismanagement or maladministration" or obvious wrongdoing by the Attorney: at [36(v)]. Fourth, the Tribunal noted that many of the concerns raised by the Appellant pre-dated mid-2018 when the Subject Person was "still actively managing her own financial affairs": at [34(x)]. Fifth, the Tribunal concluded that there was "no compelling evidence" that the Subject Person's needs were not being met or that her available assets were not being used to advance her welfare and quality of life: at [34(ix)].
The decision made by the Tribunal not to exercise the discretion to conduct a review of the operation and effect of the EPo, was one reasonably open to the Tribunal. While reasonable minds may differ on that question it does not follow that the decision lacked an evident and intelligible justification.
This ground of appeal is rejected.

Ground 3: did the Tribunal fail to consider (i) passbooks relating to bank accounts held by the Appellant, and (ii) a DVD containing a sound recording of a conversation between the Appellant and the Subject Person and, if so, whether that material was significant and relevant?

The Appellant contends that the Tribunal failed to have regard to the bank passbooks (the passbooks) handed up by the Attorney in the course of the hearing and a DVD containing a sound recording of an alleged conversation between her and the Subject Person in early 2019 (the DVD). She contends that each document was critical to the exercise of the discretion to conduct a review of the operation and effect of the EPoA.

The passbooks

The parties agree that towards the end of the hearing, the Appellant handed the Tribunal four bank passbooks in the Subject Person's name spanning the period 2009 to 2018. (See p 3 summary of sound recording of hearing on 13 June 2019, prepared by the Appellant, filed 26 September 2019.) However, they dispute whether the Tribunal considered those passbooks.
While there is no express reference to the passbooks in the Tribunal's reasons for decision, we reject the Appellant's claim that the Tribunal ignored or overlooked those documents. As the sound recording of the hearing reveals, after being handed the passbooks the Tribunal questioned the Appellant about several entries, including a number of "significant withdrawals" (SR at 1:57 to 2:04).
In Torbey Investments Corporated Pty Ltd v Ferrara [2017] NSWCA 9 at [65], the Court of Appeal (per Basten JA with whom McColl and Simpson JJA agreed) accepted that to ignore or overlook apparently credible and relevant information, which might support an essential step in the reasoning process if the claim were to be upheld, may amount to an error of law. The Court of Appeal pointed out the fundamental question is the importance of the ignored or overlooked material to the exercise of the Tribunal's function and thus the seriousness of any error.
Here, the Appellant has failed to identify the "credible and relevant information" she asserts was contained in the passbooks that the Tribunal failed to consider. She, in effect, contends that had the Tribunal scrutinised the passbooks they would have revealed, as she alleges, that the Appellant was using the Subject Person's funds for her own benefit and abusing her position as attorney. Without the identification of that material, it is not possible to determine whether it was overlooked or ignored by the Tribunal.

The DVD

The Appellant claims that the DVD contains a recording of conversations between her and the Subject Person in February and March 2019. According to the Appellant, in those conversations the Subject Person said words to the effect that she was concerned about what was happening to her money and had no knowledge of the joint account held with the Attorney.
The DVD was apparently filed by the Appellant the day before the hearing. The Attorney claimed she was not served with a copy of the DVD. The Appellant disputes that claim.
At the commencement of the hearing, the presiding member stated that the Court House in regional NSW where the hearing was being held, did not have the necessary facilities to enable the Tribunal to listen to the DVD. The Appellant informed the Tribunal that she had bought her laptop computer to the hearing to enable the DVD to be played. While the Tribunal did not formally rule on the issue, having regard to the comments made by the presiding member at the commencement of the hearing, it appears that the Tribunal decided not to admit the DVD, apparently on the grounds of limited relevance.
Being an interlocutory decision, the Appellant requires leave to appeal the decision of the Tribunal to not admit the DVD: s 80(2)(a) of the NCAT Act; see also the definition of "interlocutory decision" in s 4. As pointed out by the Separate Representative, taken at its highest, the DVD would reveal that at a time when the Subject Person had a cognitive impairment, she stated that she did not know about the existence of the joint account with the Attorney. That material would be of limited probative value. Furthermore, in circumstances where the DVD had been filed the day before the hearing and there was no evidence to support the Appellant's claim that it had been served on the other parties to proceedings - the Attorney and the Subject Person - and there was also no transcript of the subject conversations, it could not be said that the decision by the Tribunal to reject the tender revealed some error on its part.
This ground of appeal is rejected.

Ground 4: did the Tribunal meet with the Attorney and her husband before the commencement of the hearing, and, if so, did that give rise to a reasonable apprehension of bias?

The Appellant alleges that the Tribunal met with the Attorneys alone in the hearing room for "a good couple of minutes" before the commencement of the hearing and that this gives rise to a reasonable apprehension of bias. She claims that she overheard the Attorney speaking with members of the Tribunal. The Attorneys deny meeting with the Tribunal in the absence of the Appellant, prior to the hearing or at any other time. They claim that they arrived early for the hearing, did see not see the Appellant and were directed by a registry officer to wait outside the hearing room, which they did. They claim that they did not see the Appellant until they were called into the hearing room by one of the Tribunal members and had assumed that she had been waiting at a different part of the Court House.
The sound recording of the hearing commences with a member of the Tribunal announcing the proceedings, and the presiding member asking the participants to introduce themselves. The recording makes clear that at that point all parties were present in the hearing room. There is nothing in the recording to suggest that at the start of the hearing, members of the Tribunal had met with the Attorneys. While of itself that does not establish that the Tribunal did not speak to the Attorneys before the commencement of the hearing, in circumstances where the evidence turns on the word of one party over another, in the absence of any independent material to support their conflicting accounts, we are unable to be satisfied of the factual assertion which underpins this ground.
This ground of appeal is rejected.

Should the appeal be dealt with by way of a new hearing?

Section 80(3) of the NCAT Act permits the Appeal Panel to decide to deal with an internal appeal by way of a new hearing, if it considers that the grounds for the appeal warrant a new hearing, and permit such fresh evidence, or evidence in addition to, or in substitution for the evidence received by the Tribunal at first instance, to be given in the new hearing as it considers appropriate in the circumstances.
The Appellant points to the following "fresh evidence", which she contends warrants the exercise of the power to conduct a new hearing: 1. Various bank documents produced by the Attorney in the appeal. 2. A photograph of the entrance to the house on the family property.
Generally, fresh evidence must satisfy three conditions: it could not have been obtained with reasonable diligence in the original proceedings; there is a high degree of probability that if admitted there would have been a different result in those proceedings, and; the evidence must be credible: Akins v National Australia Bank (1994) 34 NSWLR 155 at 160, Clarke JA (Sheller JA agreeing); Agripower Barraba Pty Ltd v Blomfield (2015) 317 ALR 202; [2015] NSWCA 30 at [68] per Sackville AJA.
In our view, neither the bank documents nor the photograph could be said to satisfy each of the conditions identified in Akins v National Australia Bank Nonetheless, given that s 80(3)(b) of the NCAT Act, permits the Appeal Panel to receive new evidence and this is not limited to fresh evidence, whether the evidence on which the Appellant relies meets all of these conditions, is moot.

Bank documents

The bank documents on which the Appellant relies were tendered by the Attorney in the appeal and consist of: 1. a notice dated 14 October 2019 issued by the CBA certifying that it held a term deposit in the sum of $20,000 in the name of the Subject Person, deposited on 14 October 2019, and 2. a CBA savings account passbook in the Subject Person's name, recording entries made between 23 August 2018 and 14 October 2019.
The passbook reveals that:

each fortnight, Centrelink deposited just over $1000 into the Subject Person's savings account;
withdrawals for varying sums were made from the account between August 2018 and October 2019;
a brief handwritten entry appears against most withdrawals;
every three to six weeks, withdrawals were made for either $300 or $500, which were accompanied by the handwritten entry "house money";
the balance of the withdrawals were made on an occasional basis, sometimes for significant amounts. In most cases, they were accompanied by the handwritten entry "chq A/C"
the final entry in the passbook is for a $20,000 withdrawal made on 14 October 2019, accompanied by a handwritten entry "term deposit".

In oral evidence the Attorney claimed that from time to time, she withdrew money from the Subject Person's savings accounts and deposited it into the her mother's cheque account to enable large bills to be paid. The Attorney claimed that shortly after she commenced exercising her functions as attorney, she had set up a series of direct debits to enable utilities and other regular bills to be paid from the cheque account .
The Attorney claimed that she made the last recorded withdrawal to enable $20,000 to be put into a term deposit and to earn a higher interest rate. She claimed that the regular cash withdrawals from the savings account were made to pay for on-going expenses, such as food, groceries, chemist bills and the services of the care provider engaged to assist the Subject Person with shopping and other domestic tasks. She claimed that most of the larger irregular withdrawals were as recorded by the handwritten entries, transferred to the Subject Person's cheque account. In addition, she claimed that from time to time, she withdrew money from the savings account to pay for one off expenses, such as repairs to the family property and respite care.
The Appellant contends that the withdrawals made from the savings account are "suspicious" given the Subject Person's modest needs and without supporting material the explanation given by the Attorney cannot be accepted. The Separate Representative submits that without the explanation given by the Appellant the withdrawals, especially those for relatively large sums "raise questions". However, he stated that some comfort could be taken from the Appellant's actions in disclosing this material to the Appeal Panel together with her stated willingness to disclose all documents to an independent accountant.

Consideration

In our view, of itself the bank documents, do not warrant the exercise of the discretion to deal with an internal appeal by way of a new hearing. While the Appellant has not provided all underlying documents relating to the withdrawals made from the savings account, the explanation she gave in relation to each withdrawal was plausible and consistent with the evidence she gave to the Tribunal. Furthermore, on the available material we are not persuaded that there is a proper basis to depart from the finding made by the Tribunal that the Attorney is a credible and truthful witness: at [34(iii)]. While the Appellant may hold the honest belief that the Attorney has been "skimming money" from the Subject Person's savings account, the bank documents do not support that belief.

The photograph of the entrance to the family property

Taken in September 2018, this photograph shows the entrance to the house where the Subject Person resides. The Appellant contends that it demonstrates that "insufficient funds are being spent" on the Subject Person. She points out, and as the Attorney does not dispute, that the Subject Person is becoming increasingly unsteady on her feet.
The Attorney claims that she raised with an Aged Care Assessment (ACAT) assessor the question of whether hand rails should be installed to the entrance of the Subject person's home. On her account, the assessor recommended against that course, on the ground that they would pose a "trip risk", by causing the front door to close on the Subject Person as she manoeuvred her walking frame up the ramp and through the front door.
In our view it is improbable that the photograph would have led the Tribunal to reach a different result. Nor, could it be reasonably argued that it supports the proposition that the welfare of the Subject Person is at risk because insufficient funds are being spent on her needs.

Summary

Neither the photograph nor the bank documents, of themselves or taken together with the other material that was before the Tribunal, warrant the exercise of the discretion to deal with the appeal by way of a new hearing.

Should leave to appeal be granted?

In Collins v Urban [2014] NSWCATAP 17, an Appeal Panel of NCAT noted at [84] that to grant leave to appeal under s 80(2)(b) of the NCAT Act, there must be a "sound basis" for granting leave. The Appeal Panel stated that an appellant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at, or that there was a bona fide challenge to an issue of fact. Ordinarily it will only be appropriate to grant leave to appeal in matters that involve: (a) issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; or (c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed, (Citations omitted)
In SAB v SEM and Ors [2013] NSWSC 253 at [7]-[10], White J emphasised the need to take account of the protective character of the jurisdiction, in exercising the power to grant or withhold leave to appeal from a decision of one of NCAT predecessor Tribunals, the Guardianship Tribunal of NSW, emphasising that the welfare and interests of the person with disabilities is to be given "paramount consideration".
The Appellant urges the Appeal Panel to grant leave to appeal contending that had the Tribunal exercised its inquiry powers it would have had the benefit of evidence which supports her claim that the Attorney had been acting in breach of her fiduciary duties and was misusing her mother's funds for her own benefit. In addition, she contends that the evidence available to the Tribunal was insufficient to support its decision not to conduct a review of the EPoA, and order that an audit of the Subject Person's accounts be conducted.

Consideration

None of the factors listed in Collins v Urban, which might warrant granting leave, apply to the decision under appeal. The grounds identified by the Appellant as warranting the grant of leave are in effect an expression of disagreement about the facts found by the Tribunal and the ultimate conclusion it reached. The Tribunal went about its role as fact finder in an entirely orthodox manner, it correctly stated and applied the relevant statutory tests, and gave adequate reasons for its decision. While the decision under appeal is of great importance to the parties, it raises no issue of general principle or importance and is confined to the specific facts of the case.
The circumstances do not warrant the exercise of the power to grant leave to appeal.

Orders 1. Leave to appeal 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: 05 March 2020

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