ZOF v NSW Trustee and Guardian

NCAT Appeal Panel|2020-04-21|Before: Armstrong J

e Number(s): AP 19/56865 Publication restriction: The publication of the name of any of the parties or other people referred to in this decision including the publication of any information picture or other material that identifies them or is likely to lead to their identification is prohibited. Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Guardianship Division Citation: N/A Date of Decision: 3 October 2019 Before: A D Suthers, Principal Member A M Matheson, Senior Member (Professional) J L Newman, General Member (Community) File Number(s): 2019/00053486

Introduction

This is an appeal under s 80(2) of the Civil and Administrative Tribunal Act 2013 (NSW) ("the NCAT Act") from a decision of the Guardianship Division of the Tribunal made on 3 October 2019 in which the Tribunal made a financial management order appointing the NSW Trustee and Guardian (TAG) to manage the estate of ZOF. The Tribunal's order excluded ZOF's Centrelink income from being subject to management.
We have concluded that the appeal should be dealt with by way of a new hearing under s 80(3) of the NCAT Act, because we consider one of the grounds of appeal warrants a new hearing.

Publication of the names of the parties

The publication or broadcast of the name of any person, who is mentioned or is otherwise involved in an "internal appeal" against decisions made by the Guardianship Division of NCAT, is prohibited: s 65(1) of the NCAT Act. Being an official report of the appeal proceedings, that prohibition does not apply to these reasons for decision: s 65(3) of the NCAT Act. Nonetheless, because of the sensitive nature of the matters raised in these proceedings, we have decided not to publish in these reasons any details that may identify the parties.

Background

ZOF ("the Appellant"), the subject person in the decision subject to this appeal, is a 59-year-old man who identifies as a member of the Ngarbal people and is from regional NSW. The Appellant is a survivor of the Stolen Generations. He was taken from his parents as an infant, and placed into another family, and then into a group home at age nine or 10. He now lives with his auntie, ZOH, in another part of regional NSW.
It is uncontested that the Appellant has a diagnosis of schizophrenia.
In 2017, the NSW Government commenced the NSW Stolen Generations Reparations Scheme ("the Reparations Scheme"). The Reparations Scheme is open until 2022, and provides survivors of the Stolen Generations with ex gratia payments of up to $75,000.00.
The Appellant was a recipient of this scheme in 2018, when he received $75,000.00 as a survivor of the Stolen Generations. Those funds, as noted by the Tribunal below, were subsequently disbursed and spent predominantly for the benefit of the Appellant's family and friends.
The Guardianship Division of the NSW Civil and Administrative Tribunal ("the Tribunal") hears applications for, among other things, financial management and guardianship under the Guardianship Act 1987 (NSW) ("the Act"). Its jurisdiction is protective - that means rather than looking to resolve disputes between parties, the Tribunal has as its primary concern the welfare and interests of the person who is subject to an application before it: s 4(a) of the Act.
In February 2019, the Tribunal received an application for a financial management order from ZOG, who identified herself as the Appellant's cousin. ZOG sought an order that TAG be appointed as the Appellant's financial manager, stating that a further lump sum payment was expected soon, and that she was concerned that other people in the Appellant's life would take the second lump sum payment from him.
On 10 April 2019, the Tribunal made an interim financial management order under s 25H of the Act appointing TAG as the Appellant's financial manager for a period of six months from the date of the order and excluding from that order the Appellant's pension income. ZOG participated in the hearing resulting in such order. The Appellant also participated and was represented by Mr Andrew Rolfe, solicitor, and a further six relatives of the Appellant attended the hearing (but not ZOH). The Tribunal's reasons indicate that there was a level of conflict in the proceedings on 10 April 2019: 17 There was a clear animosity between [Ms Z] and her family members, on the one hand, and the Applicant and her family members, on the other. This showed itself as occasional outbursts in which one or the other of the ladies alleged that the other (or her family) had benefited financially excessively and inappropriately from [the Appellant]. The Tribunal declined to become involved in these exchanges, since they were not directly relevant to the fundamental issue, which was whether [the Appellant] needed the appointment of a financial manager.
The Tribunal's reasoning for making the interim financial management order that it did was: 19 The Tribunal's conclusions are that: (1) There is currently no evidence to suggest, except by inference from the dissipation of his compensation payment and his inability to provide details, that [the Appellant] cannot manage his pension income or fortnightly expenditure. (2) It is, however, undisputed that his compensation award has been dissipated. (3) It is clear that, so far as that award is concerned, the cultural practice of sharing to which [Ms Z] referred in her evidence has occurred. What is less apparent, however, is whether the recipients of [the Appellant]'s generosity have provided the caring which, in [Ms Z]'s summary of Aboriginal community norms, she considers to be reciprocal to his generosity. (4) It is a reasonable possibility, to put matters at their most neutral, that [the Appellant] may be inclined to share with his extended family and community any further compensation award. (5) Should he do so as the outcome of an independent and rational choice, in which he freely decides to share his compensation with community and family then there can be neither any objection nor any basis for the Tribunal to intervene. This is the case whether this choice is motivated by personal philanthropy or Aboriginal cultural norms. (6) However: (a) in the absence of any strong evidence as to his capacity to manage his affairs, but (b) having regard to the - admittedly, relatively inconclusive - letter from [Dr Y], and (c) bearing in mind the forceful observational evidence of the Applicant and her sister as to [the Appellant]'s susceptibility to pressure to subordinate his personal interests to the collective preferences of his extended family, the Tribunal was of the view that it would be in [the Appellant]'s best interests for any further compensation amount to be received and held by NSW Trustee and Guardian, at least until such time as an informed view can be reached as to his capacity to deal with his compensation payment in an independent and rational way.
On 18 September 2019, ZOG forwarded emails to the Tribunal Registry which advised that she no longer would be participating in the proceedings alleging that she and her family had been subjected to false allegations and personal attacks as a result of lodging the application. She also submitted that she was only assisting the Appellant's auntie, ZOH, who was intended to be the applicant in the proceedings.

The decision under appeal

On 3 October 2019, a differently constituted panel of the Tribunal conducted a further hearing in the proceedings in regional NSW. The Appellant was again represented in the proceedings by Mr Rolfe. ZOG did not participate in the hearing, but ZOH did, as did the Appellant and Ms Z. At the conclusion of the hearing the Tribunal ordered that the Appellant's estate, except for any Centrelink income, be managed by TAG.
In determining ZOG's application, the Tribunal was required to apply s 25G of the Act to decide whether to make an order: 25G Grounds for making financial management order The Tribunal may make a financial management order in respect of a person only if the Tribunal has considered the person's capability to manage his or her own affairs and is satisfied that: (a) the person is not capable of managing those affairs, and (b) there is a need for another person to manage those affairs on the person's behalf, and (c) it is in the person's best interests that the order be made.
Having made the decision to make an order, the Tribunal was then required to decide who to appoint to the role of financial manager under s 25M(1) of the Act: 25M Tribunal may commit estate of protected person to management (1) If the Tribunal makes a financial management order in respect of the estate (or part of the estate) of a person, the Tribunal may, by order: (a) appoint a suitable person as manager of that estate, or (b) commit the management of that estate to the NSW Trustee.
The Tribunal issued the reasons for its order of 3 October 2019 on 14 November 2019. As to the evidence before the Tribunal as to the Appellant's capability to manage his financial affairs, the Tribunal's reasons provide as follows: 28 [The Appellant] acknowledges that he has a diagnosis of Schizophrenia. We did not, however have any comprehensive evidence detailing how he is affected by that illness. 29 In a report [the Appellant] filed in the Tribunal from [Mr X], psychologist, it is noted that [the Appellant] receives a fortnightly depot anti-psychotic injection and that he is usually but not always compliant with this. It was also noted that [the Appellant] uses Marijuana. 30 [Mr X's] report was the only professional evidence we had before us that assisted in relation to [the Appellant]'s ability to manage his financial affairs. The report notes that it was based on a letter of instruction from Mr Rolfe, which was not before us, an interview with [the Appellant] and material before the Tribunal on the first occasion.
After summarising the report of Mr X, the Tribunal's reasons replicate at [33] that report's conclusion: I am of the opinion that neither a Guardianship order nor a Financial Management order is required. [The Appellant] appears able to make informed decisions albeit with a limited scope and his own priorities. He was able to identify that he had previously spent large amounts of money on family - however only on specific members of his family that he chose and because he is of the belief that supporting them was a reasonable choice and in retrospect is content with those choices. It is possible that [the Appellant]'s Schizophrenia symptoms may increase and should that occur his capacity to make decisions would be severely impacted. However, whilst he remains compliant with medication and his management regime is efficacious, symptom change cannot be predicted reliably.
The reasons go on to provide the following assessment as to the utility of Mr X's report in the proceedings: 34 There is always the potential, where a witness with particular qualifications expresses an opinion by reference to a legal test as it applies to the facts of the matter, that the opinion may be of limited assistance to the Tribunal. That is the case here. … 37 For those reasons, we accepted and considered the evidence of [Mr X], including the results of his testing of [the Appellant] referred to in paragraph [32] above, but were unable to give any weight to his view on the ultimate issues for consideration by us.
Subsequently the Tribunal's reasons explain how it adduced evidence relevant to determining the Appellant's capacity and outlined its ultimate conclusions on the issue: 38 Given the deficits referred to by [Mr X] in relation to [the Appellant]'s ability to fully understand and evaluate the consequences of his choices, we spent much of the hearing giving [the Appellant] the ability to demonstrate that he is capable of managing his financial affairs. We excluded from our consideration of this issue whether [the Appellant]'s decisions to spend the first reparation payment he received on others was 'culturally appropriate' or could be considered 'objectively sound' as we had conflicting evidence from members of his family about these issues and no independent expert evidence to assist us. 39 Instead, we focussed squarely on whether [the Appellant] could demonstrate an understanding of the decisions he made, in the context he made them, and the consequences of those decisions. 40 We should note that [the Appellant] objected to being questioned about these issues, despite our explanation of the purpose of the questions and him being represented by a solicitor. It was difficult, on that basis, to draw a bright line between [the Appellant]'s reluctance to participate in the process and whether his unwillingness to do so could in itself, indicate an inability to understand his financial affairs or, more particularly, be a strategy used by him to retreat into indignation at being questioned when he felt threatened by his inability to recall or explain his actions. 41 In the end, despite his reluctance, we were satisfied that [the Appellant] participated sufficiently for us to gain an appropriate understanding of his ability to manage his financial affairs, which was enough for us to be satisfied that he is unable to do so in the context of receiving another significant lump sum reparation payment. We based our conclusions on the testing undertaken by [Mr X], together with the following, which we took from [the Appellant]'s own evidence:
The Tribunal then details its examination of three factual considerations which led it to make its conclusion that the Appellant was incapable of managing his affairs. In summary, they were: 1. The Appellant's ability to recall his Centrelink income and ongoing expenses, and explain apparent disparities between the two. The Tribunal commented that it appeared the Appellant was unable to recognise that it should be a "zero sum" exercise, and allowing for the stress associated with the hearing, had "limited ability to understand and explain his recurrent expenses" or understand where his evidence was incongruous; 2. The Appellant could only explain how he spent a small portion of the reparations payment he received, totalling no more than $25,000.00. Whilst allowing for his resentment of the Tribunal's involvement, the Tribunal was left with the impression that he could not provide a more detailed understanding of how the payment was spent; 3. The Appellant's purchase of a European car for a family member, without test driving the vehicle or having it inspected mechanically, which indicated to the Tribunal that the Appellant was unable to consider the non-immediate consequences of his decisions.
Having concluded that the Appellant was incapable of managing his financial affairs, the Tribunal exercised its discretion to proceed to make the financial management order requested by ZOG, stating the remaining elements of s 25G of the Act were satisfied, that is, that there was a need for an order to be made and that an order would be in the Appellant's best interests, and provided the following reasoning: 43 [The Appellant] will soon receive another significant lump sum reparation payment and has demonstrated an inability to manage such a significant lump sum in a way which is fully understood by him. Those who have supported him informally to date are in dispute about whether that support has led to him being financially exploited. We were satisfied that there is a need to appoint someone to manage [the Appellant]'s affairs and it is in his best interests that an order be made.
Finally, the Tribunal's reasons confirm the appointment of TAG as financial manager under s 25M of the Act as follows: 49 There was no suitable person available or proposed to be appointed as financial manager. 50 We were satisfied that the estate of [the Appellant], with the exception of his Centrelink income, should be committed to the NSW Trustee and Guardian.
The Appellant, through his solicitor, Ms Linda Rogers, appeals the Tribunal's orders. The Notice of Appeal was lodged with the Tribunal on 19 December 2019. The grounds of appeal are set out in full further below.

Procedural history and preliminary matters

On 16 January 2020, the Tribunal directed, among other things, that the Appellant lodge with the Tribunal and provide to the other parties by 12 March 2020: 1. All the evidence provided to the Tribunal below on which it is intended to rely; 2. Any fresh evidence on which it is intended to seek leave to rely; 3. The Appellant's written submissions in support of the appeal; and 4. The sound recording of the hearing at first instance, if the oral reasons were given and/or what happened at the hearing is being relied on and a typed copy of the relevant parts.
Correlating orders were made in relation to the remaining parties to the appeal, who were to lodge their material by 9 April 2020, and any written submissions in reply to those of the Appellant by 16 April 2020.
The matter was originally listed for hearing on 21 April 2020 in regional NSW to facilitate the direct participation of the parties. Unfortunately due to the COVID-19 pandemic, the proceedings were required to be conducted by telephone.
At that hearing the Appeal Panel noted that the Appellant had failed to lodge any of the material as specified in the directions on time. Some documents were received on 16 March 2020, more were received in the week before the listed hearing date, and most critically, written submissions were not lodged with the Tribunal until the day prior to the hearing. The Appeal Panel also became aware that the other parties to the appeal, particularly ZOH, had not been provided with a copy of those written submissions; the reason given for this was that ZOH did not have an e-mail address.
As a result, and in order to afford ZOH procedural fairness as a party to the appeal, the hearing was adjourned until 25 June 2020. The Appeal Panel also appointed a separate representative for the ZOH in circumstances whereby: she confirmed that the Appellant continued to live with her; that she was of the view the financial management order should remain in place; that she felt unable to adequately put her position to us without assistance; despite multiple attempts to obtain legal assistance in these proceedings she had been unable to do so. We understand ZOH to be an Aboriginal elder who has provided care to the Appellant for many years.
The solicitor for the Appellant filed amended grounds of appeal with the Tribunal on 26 May 2020, and confirmed at the hearing of 25 June 2020 that she did not seek to file any amended written submissions. There was no objection to the amended grounds of appeal.
Upon the commencement of the adjourned hearing of 25 June 2020 it became evident that ZOH, through her separate representative, had failed to comply with the directions timeline given at the earlier hearing of 21 April. The separate representative, Ms Lyn Larkins, said that the reason why the material (consisting of a written statement by ZOH) had not been lodged in time was that a hard copy was sent to ZOH for her signing, but ZOH had not mailed it back, signed, to her separate representative in time.
The separate representative sought to admit the written statement by way of reading it to the Tribunal at the hearing. Ms Rogers objected to the statement being received into evidence, on the grounds that she had not had an opportunity to examine the statement, and said that in the event it was received into evidence she would seek to cross-examine ZOH.
We decided to allow the separate representative to read the statement at the hearing, on the basis that a signed copy would be provided to the other parties within 14 days, and on the understanding that it is yet to be formally received into evidence and parties were directed to provide submissions or evidence to the Appeal Panel and to each other party to the appeal by 7 July 2020.

Representation in the appeal

Ms Rogers appeared at the hearing by telephone on behalf of the Appellant. The Appellant and Ms Z appeared together via telephone.
ZOH was represented by Ms Larkins as her separate representative. ZOH and Ms Larkins both appeared by telephone.
Also appearing via telephone was Mr Michael Keogh from TAG.

New Evidence

Much of the documentation submitted in the appeal on behalf of the Appellant was evidence that was not available to the Tribunal below. For example, the Appellant submitted a report entitled "Expert Opinion for consideration by the NCAT Appeal Panel" dated 14 April 2020 and authored by Dr W who reports having completed a PhD "exploring the historical, cultural and familial context of money as it flows through indigenous households in remote, reginal and urban Australia". Another example is a letter from Carroll O'Dea Lawyers dated 15 April 2020 advising that they act for the Appellant in relation to an unlitigated claim against the State of NSW arising from his treatment when was a ward of the State and providing an overview and proving a brief overview of the current position of such un-litigated claim.
A party seeking to adduce fresh evidence in an appeal may only do so with the leave of the Appeal Panel and in accordance with well-established principles (see, for example, Gallagher v R [1986] HCA 26; (1986) 160 CLR 392, 402 (Mason and Deane JJ), 399 (Gibbs CJ); QP v RP [2014] NSWCATAP 59, [34]-[37]).
In Building Professionals Board v Hans (2008) NSWADTAP 13, the Tribunal stated at [54]: If the Appeal Panel is to exercise its discretion in favour of the party applying for leave - and I interpolate that that is leave to adduce further evidence - it must be affirmatively satisfied that having regard to the findings of the Tribunal at first instance the further evidence if tendered at the hearing conducted by the Tribunal was likely to have produced a different result.
We understood the Appellant's position however was not to be seeking leave for his new evidence to be before us to determine his grounds of appeal, but rather, in support of the Appellant's request for the matter to be dealt with by way of a new hearing. As elaborated upon later in these reasons, the existence of the new evidence in these proceedings played a role in our decision to determine to deal with the appeal by way of a new hearing and to accordingly allow such new evidence to be admitted for the purposes of the new hearing as permitted by s 80(3)(b) of the NCAT Act.

Scope and nature of appeals

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. In the present matter, the Appellant appeals on questions of law, and, in addition, seeks leave to appeal on other grounds.
Without expressing exhaustively possible questions of law, the Appeal Panel has previously identified the following as questions of law (e.g. Prendergast v Western Murray Irrigation [2014] NSWCATAP 69 at [13]): 1. whether there has been a failure to provide adequate reasons; 2. whether the Tribunal identified the wrong issue or asked the wrong question; 3. whether a wrong principle of law had been applied; 4. whether there was a failure to afford procedural fairness; 5. whether the Tribunal failed to take into account relevant (that is, mandatory) considerations; 6. whether the Tribunal took into account an irrelevant consideration; 7. whether there was no evidence to support a finding of fact; and 8. whether the decision is so unreasonable that no reasonable decision maker would make it.
As to appeal grounds other than on questions of law, in Collins v Urban [2014] NSWCATAP 17, the Appeal Panel stated at [84] that ordinarily it is appropriate to grant leave to appeal only in matters that involve: 1. issues of principle; 2. questions of public importance or matters of administration or policy which might have general application; or 3. 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; 4. a factual error that was unreasonably arrived at and clearly mistaken; or 5. 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.
In all decisions of the Guardianship Division, and of the Appeal Panel in relation to the appeal of decisions of the Guardianship Division, the relevant body must have regard to s 4 of the Act, which provides as follows: It is the duty of everyone exercising functions under this Act with respect to persons who have disabilities to observe the following principles: (a) the welfare and interests of such persons should be given paramount consideration, (b) the freedom of decision and freedom of action of such persons should be restricted as little as possible, (c) such persons should be encouraged, as far as possible, to live a normal life in the community, (d) the views of such persons in relation to the exercise of those functions should be taken into consideration, (e) the importance of preserving the family relationships and the cultural and linguistic environments of such persons should be recognised, (f) such persons should be encouraged, as far as possible, to be self-reliant in matters relating to their personal, domestic and financial affairs, (g) such persons should be protected from neglect, abuse and exploitation, (h) the community should be encouraged to apply and promote these principles.

The grounds of appeal

The grounds of appeal initially lodged by the Appellant on 19 December 2019 were amended and lodged again on 26 May 2020. They are set out in full as follows (with all markings being those of the Appellant's): Questions of Law 1. That the Tribunal failed to comply with the duty to observe the principle in s.4(a) of the Guardianship Act 1987 that the welfare and interests of the Appellant be given paramount consideration, by failing to identify the range of matters that comprised the "welfare and interests" of the Appellant and whether those matters included: (a) the Appellant's identity as an Aboriginal man; and (b) whether the making of a financial management order would affect his identity as an Aboriginal man In doing so, the Tribunal also failed to take into account a relevant consideration in s.4(a) of the Guardianship Act 1987. 2. That the Tribunal erred by failing to take into account the a relevant consideration, namely the importance of preserving recognition of the Appellant's cultural and linguistic environments, as required by s.4(e) of the Guardianship Act 1987, because the Tribunal: (a) Failed to consider whether the making of any financial management order might have a negative effect on the preservation of the Appellant's cultural environment. (b) Failed to reach any findings of fact about what the relevant Aboriginal cultural norms and practices were and whether the Appellant's actions in giving away the Stolen General Reparations Scheme payment was in line with those cultural practices. At the very least, it was incumbent on the Tribunal to consider what impact the making of no such factual finding would have on how the Tribunal would observe the principle in s.4(e) of the Guardianship Act 1987 and in turn the overall question of whether not the Appellant was incapable of managing his financial affairs. 3. The Tribunal applied the wrong test for incapacity for self-management In that it applied a higher test than is required by Jaw by requiring the Appellant to be able to fully account for his spending of his regular pension and the entire Stolen Generation Reparations Scheme payment rather than considering the manner in which the Appellant made decisions about his money and whether he dealt with his affairs in a "reasonable, rational and orderly way" as referred to in P v NSW Trustee and Guardian [2015] NSWSC 579 at [308] . 4. The Tribunal failed to afford procedural fairness to the Appellant when it failed to offer or afford the Appellant an opportunity to obtain further evidence as to relevant Aboriginal cultural norms and practices, in circumstances where without such further evidence the Tribunal did not include in its consideration whether or not the actions of the Appellant in spending the Stolen Generations Reparations Scheme payment on others was 'culturally appropriate' or could be considered 'objectively sound'. This evidence was material to the decision the Tribunal had to make, namely whether or not the Appellant was incapable of managing his financial affairs. 5. That the Tribunal misapplied the common law test for incapacity for self-management as enunciated in P v NSW Trustee and Guardian [2015) NSWSC 579 at [308] In that the phrase "due regard to his or her present and prospective wants and needs, and those of family and friends" included the wants and needs of family and friends as understood in the Appellant's culture and the cultural imperatives of caring and sharing with friends and family. 6. That the Tribunal took into account an irrelevant consideration that is, that the Appellant's reluctance to participate in the hearing in determining whether the Appellant was incapable of understanding and managing his financial affairs. Reasons for Leave to Appeal on any other grounds 1. There are issues of public importance in this case namely about how the Tribunal determines the facts in relation to an Aboriginal person who is the subject of an Application before it1 including how it should recognize the cultural and linguistic environments of those persons and whether expert evidence should have been sought and provided about the Appellant's Aboriginal culture and the relevance of that culture to findings the Tribunal made about his wish to give away his funds to family members or others. 2. There are apparent errors on the face of the Reasons for Decision, including that the Appellant bought a car without anyone test driving it (a) That the Appellant bought a car without anyone test driving it (b) That the further payment that is expected to eventuate from a legal claim the Appellant is making against the State of NSW through his solicitors Carroll and O'Dea was: (i) a further payment under the Stolen Generations Reparations Scheme (ii) about to be paid to the Appellant (iii) an amount of up to $100,000 (iv) a known amount or that the Appellant should have known the amount These errors are material errors as they go to the question of the size and nature of the estate and therefore the level of capacity required to manage the estate and also whether there was a failure on the part of the Appellant to understand his estate and was therefore further evidence of incapacity for self-management. The injustice is reasonably clear such that it would be unjust to allow the findings to stand. 3. That further new evidence should be permitted to be obtained introduced regarding the cultural practices of the Appellant, an Aboriginal man, and how these practices may influence his financial decision-making including giving gifts to relatives or others. By allowing a new hearing and fresh evidence, the Appeal Panel will comply with the duty to observe the principle that the welfare and interests of the Appellant should be given paramount consideration in the determination of this appeal. 4. That by making an adverse finding to the effect that the Appellant did not consider the consequences of the purchase of a car "from a financial perspective" the Tribunal in fact failed itself to recognise the Importance of preserving the cultural environment of the Appellant because on this the fresh evidence supports a finding that the Appellant viewed this purchase on the basis of the social value from sharing money, rather than purely from a financial perspective. 5. That by making an adverse finding to the effect that the Appellant did fully appreciate the "consequences" of his actions in giving his money away, the Tribunal took too narrow a view of "consequences" as being financial consequences and not social consequences and thereby failed itself to recognise the importance of preserving the cultural environment of the Appellant because on this the fresh evidence supports a finding that the Appellant viewed the consequences of his spending in social rather than purely financial terms.
In summary, the Appellant's grounds of appeal insofar as they involve questions of law can be identified as falling into the following categories of question: 1. whether the Tribunal failed to take into account relevant (that is, mandatory) considerations; 2. whether a wrong principle of law had been applied; 3. whether the Tribunal took into account an irrelevant consideration.
The Appellant also sought leave to appeal on grounds other than a question of law.

The Submissions of ZOH and TAG

We received only limited submissions on the appeal from ZOH or from her appointed separate representative. We refer to the oral statement of ZOH (see [30] to [32] above) which was predominantly evidentiary in nature. It did make clear however that ZOH's position was that she was not in support of her nephew's Appeal as she believed the financial management order should remain in place.
Ms Larkins, as separate representative for ZOH, confirmed that it was ZOH's position that the order subject of the appeal should remain in place, but also submitted to us that the appeal should be dealt with by way of a new hearing so that greater consideration could be given to the Appellant's indigenous cultural background.
Apart from providing information that TAG had not taken any active steps in managing the Appellant's estate since the order was made as there had been no funds received by the Appellant that were not otherwise excluded from the operation of the order, TAG did not provide any submissions as to the grounds of Appeal.

Ground Two

For reasons which will become apparent, it is convenient to deal first with the Appellant's second ground of appeal.
A failure to take into account a relevant consideration is an error of law, as the Appeal Panel in ZGM v ZGN [2018] NSWCATAP 101 said at [37]-[39]: The authorities make clear that a failure to take into account a relevant consideration will only constitute an error of law if the decision-maker fails to take into account a consideration that he or she is bound to take into account in making that decision. Whether a decision-maker is bound to take a particular matter into account is determined by the nature of the power to be exercised and the construction of the statute conferring that power. If the relevant factors are not expressly identified in the statute, they must be determined by implication from its subject matter, scope and purpose: Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40; (1986) 162 CLR 24 at 39-40; Foster v Minister for Customs and Justice [2000] HCA 38; (2000) 200 CLR 442 at 452; Director General Department of Finance & Services v Porter [2014] NSWCATAP 6 at [27].
For this ground to be successful, we needed to be satisfied that: 1. The Guardianship Division failed to take into account s 4(e) of the Act; and, if so 2. That this consideration was not so insignificant that the failure to take it into account could not have materially affected the decision: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, per Mason J at [15].
The Appellant says that by failing to make a finding of fact in relation to what the relevant Aboriginal cultural norms and practices were, and whether the Appellant's actions in giving away the Stolen Generations Reparations Scheme payment was in line with those cultural practices, the Tribunal failed to consider s 4(e) of the Act.

Was there a failure to take account of a mandatory consideration?

All of the principles found in s 4 of the Act are mandatory considerations for the Tribunal when making decisions about applications for financial management: ZGM v ZGN [2018] NSWCATAP 101 at [39]: The opening words of s 4 "it is the duty of everyone exercising functions under this Act … to observe the following principles" (emphasis added) makes plain that it is mandatory, not merely exhortatory, for a person exercising functions under the Act, in this case the Tribunal in the exercise of its power under s 25M, to take into account the principles listed in s 4. As Lindsay J pointed out at P v NSW Trustee and Guardian [2015] NSWSC 579 at [53]-[58], the obligation to have regard to those principles is reinforced by cl 5(1) of sch 6 to the NCAT Act, which provides that when exercising its "Division functions for the purposes of the Guardianship Act 1987", the Tribunal is under a duty to observe the principles set out in s 4 of the Guardianship Act. (See also, ZBC v ZBD [2016] NSWCATAP 264 at [101], [105]).
It is evident that the Tribunal below was acutely aware of the need to observe the s 4 considerations of the Act, and in this case, the particular relevance of the subject person's cultural background. The opening paragraphs of its reasons for decision at [1]-[8] evidence as much: [The Appellant] is a member of the stolen generation. He was taken from his mother at the age of three months and has lived with the trauma and disadvantage that action brought upon him for the last 59 years. In 2018, he was awarded $75,000.00 as an ex-gratia payment under the Stolen Generations Reparations Scheme (the Scheme). That money is gone. It was largely given to, or spent buying gifts for, family and friends. [The Appellant] has nothing to show, in a material sense, for the use of that money, but no apparent regrets. [The Appellant] is due to receive a second payment under the Scheme, larger than the first. Some members of his family think he has been exploited and that the next payment should be managed on his behalf. Others disagree, and say the money given by [the Appellant] to them and others is simply a reflection of [the Appellant]'s Aboriginal heritage and culture. [The Appellant] says an order should not be made and that it would "take away his identity." In every decision the Tribunal makes it must consider the principles set out in s 4 of the Guardianship Act 1987 (NSW) (the Act). While we must always consider [the Appellant]'s welfare and interests paramount, we are also bound to consider and weigh against each other, amongst the other considerations in s 4 of the Act: (1) the importance of preserving [the Appellant]'s family relationships and cultural environment; (2) that his freedom of action and decision making should be restricted as little as possible; (3) that he should be encouraged, as far as possible to live a normal life in the community; (4) that he should be encouraged, as far as possible, to be self-reliant in matters relating to his financial affairs; and (5) that he should be protected from neglect, abuse and exploitation.
Despite making clear it was alive to the need to consider this important factor, the Appellant says the Tribunal failed to do so.
In submissions, the Appellant refers to [38] of the Tribunal's reasons as the basis for this ground, which we set out in full below: Given the deficits referred to by [Mr X] in relation to [the Appellant]'s ability to fully understand and evaluate the consequences of his choices, we spent much of the hearing giving [the Appellant] the ability to demonstrate that he is capable of managing his financial affairs. We excluded from our consideration of this issue whether [the Appellant]'s decisions to spend the first reparation payment he received on others was 'culturally appropriate' or could be considered 'objectively sound' as we had conflicting evidence from members of his family about these issues and no independent expert evidence to assist us.
Whilst it is correct to state that the reasons of the Tribunal indicate that it was alive to the significance of taking account of the Appellant's cultural norms, the expression used in [38] of the reasons (above) combined with the fact that such paragraph forms part of the Tribunal's reasons under the heading of "Is [the Appellant] capable of managing his affairs" suggests that the Tribunal only contemplated the relevance of the Appellant's culture in relation to the determination of his capacity: the Act, s 25G(a). There is no mention in the remainder of the Tribunal's reasons of the relevance of the Appellant's culture when explaining how the Tribunal concluded that it was in his best interests to make a financial management order (s 25(c) of the Act) or on the issue of who to appoint as his manager (s 25M(1) of the Act).
The evidence and submissions before the Tribunal below explaining the cultural norms and values of the Appellant's Aboriginality could be described as minimal. The evidence was limited to that given by the Appellant himself and Ms Z, stating that in the aboriginal culture there is a greater emphasis than in other cultures to "care and share" and that "people look after one another". The submissions on the issue were limited to the following from the Appellant's solicitor: There might be some cultural issues here that the Tribunal needs to take account about the choices people make.
These limitations are possibly what led to the Tribunal to make comment in its reasons at [38] that it had no independent expert evidence to assist it on the issue of whether it had been "culturally appropriate" for the Appellant to dissipate his estate in the manner he did.
The Tribunal's reasons indicate that as, in its view, there was conflicting evidence on the issue of the Appellant's culture relevant to the proceedings, and that it did not have any expert independent evidence on the topic, it excluded any cultural factors in determining the Appellant's capacity to managing his own affairs. Given the significance of culture in these proceedings, it was incumbent upon the Tribunal to have taken steps to elicit further and better evidence as to what were the cultural norms and values associated with the Appellant's Aboriginality as relevant to the issue of the management of his financial affairs.
We have two concerns with how the Tribunal dealt specifically with the evidence pertaining to the Appellant's Aboriginality as evidenced in [38] of its reasons.
First, the reasons suggest that there was conflicting evidence as to the norms of the Appellant's and his family's culture, specifically in relation to the sharing of wealth. A review of the sound recording of the hearing does not support this conclusion. Whilst, as stated above, there was minimal evidence as to facets of the Appellant's culture, there was no evidence or submissions advanced by any participant suggesting that it is not part of aboriginal culture to share one's personal wealth amongst community to a greater extent than those from other cultural backgrounds. Where there was some conflict was whether the Appellant's dissipation of his estate could be attributed to his cultural norms or whether in fact such dissipation was due to exploitation. The Tribunal's reasons conflate these two issues.
Second, the reasons also suggest that, to at least some extent, the Tribunal below decided not to take the Appellant's cultural norms into consideration as there was no independent expert report providing elaboration and explanation as to those cultural norms. Whilst such a report would be of benefit in proceedings where a person's cultural environment is of particular relevance, the reality is that such reports will rarely be available in proceedings before the Guardianship Division. It is the expertise of the Tribunal's members, and the legislative imperatives of ss 36 and 38 of the NCAT Act - the just, quick and cheap resolution of the real issues, the determination of its own procedure and the ability for the Tribunal to inquire into and inform itself on any matter in such a manner as it thinks fit - particularly when exercising a protective jurisdiction as the Guardianship Division does, which empowers panels of the Tribunal to be as inquisitive as is appropriate to elicit evidence on relevant matters. In this matter, the relevance of the Appellant's Aboriginality in the proceedings.
Aside from the matter of how the Tribunal elicited and analysed evidence relevant to the Appellant's Aboriginality, in these proceedings, the Tribunal was required to then consider the preservation of the Appellant's cultural environment for each legislative element leading it to exercise its discretion to make a financial management order the Appellant's estate. The issue of culture was in no way limited to the determination of the Appellant's capacity to manage his affairs: the Act, s 25G(a). It was also relevant, perhaps equally important, in the Tribunal's determination of whether an order would be in the Appellant's best interests (s 25G(c) of the Act) and who should be appointed as manager (s 25M(1) of the Act).
As to the element of who to appoint as the Appellant's manager, we understood there not to have been any proposition put to the panel below that a family member or friend was seeking appointment to the role. Accordingly, the Tribunal in such circumstances has no alternative but to appoint TAG, and by proxy, cannot fall into error in not considering cultural factors in making such an appointment.
However, on the legislative element of whether an order would be in the Appellant's best interests, the Tribunal's reasons do not reveal that the Appellant's Aboriginality and the cultural norms associated with same formed part of the Tribunal's consideration. The totality of the Tribunal's reasoning as to its satisfaction of s 25G(c) of the Act is contained within [43] (see [21] above). There is no mention of cultural factors.
The nature of financial management is not just directed towards the maintenance of assets, but "includes ensuring that that person has a quality of life which is as beneficial to the person as the resources available to the manager permits": Holt v Protective Commissioner (1993) 31 NSWLR 227 at 238C.
The protective jurisdiction in which the Guardianship Division operates requires the balancing of many and various factors which flow from the "welfare principle" - embodied in s 4(a) of the Act: C v W [2015] NSWSC 1774, [89]-[91]. In C v W (at [96]), Lindsay J described this as follows (citations omitted): Everything done, or not done, on an exercise of protective jurisdiction must generally be measured against what is in the interests, and for the benefit, of the person in need of protection.
On that basis, in appropriate circumstances, cultural factors (that is, s 4(e) of the Act) could be of such significance that despite the Tribunal being satisfied that a person is incapable of managing their affairs and that there is a need for financial management, that the ramifications of the order on a person's cultural and linguistic environment is so great that it cannot be concluded, on balance, that an order is in a person's best interests. This is a question of fact and degree which can only be decided on a case by case basis.

Whether the failure could have materially affected the decision

It is not sufficient, in order for an appeal to succeed on this ground, for the decision maker to only fail to take a relevant consideration into account. As Mason J explained in Minister for Aboriginal Affairs v Peko-Wallsend Ltd, the factor must meet a standard of significance with respect to its effect on the final decision ([15]): Not every consideration that a decision-maker is bound to take into account but fails to take into account will justify the court setting aside the impugned decision and ordering that the discretion be re-exercised according to law. A factor might be so insignificant that the failure to take it into account could not have materially affected the decision.
In the circumstances of this matter, where the Appellant's culture and that of his family members was clearly a matter of importance to each of them, even if they were in conflict on other aspects of the proceedings, the failure on behalf of the Tribunal below to apply cultural considerations in exercise of its discretion to make a financial management order cannot be characterised as being so insignificant that the failure to take account of it could not have materially affected the decision. This is particularly the case in relation to the issue of whether the making of the order was in the Appellant's best interests.
We are satisfied that the Tribunal was in error in not taking sufficient account of a mandatory consideration in the proceedings, specifically, the need to have regard to the preservation of the Appellant's cultural and linguistic environment: the Act, s 4(e).

Ground One

Under this ground, the Appellant appears to argue that by failing to have regard to his identity as an Aboriginal man, and whether the making of a financial management order would affect his identity as an Aboriginal man, the Tribunal failed to consider his welfare and interests.
We find this ground is essentially a duplication of Ground Two. It is not submitted as an alternative to the second ground, in which case it might be submitted the grounds could be considered separately. It is contingent on a finding that the Tribunal failed to consider the mandatory considerations in s 4(e) of the Act - which is, in essence, what is alleged in ground two.
The issues raised by this ground are adequately dealt with in our reasons in relation to ground two.

Grounds Three and Five

In these two grounds, the Appellant submits that the Tribunal erred in its application of the relevant "test" for incapacity for self-management. In support of these grounds, the Applicant refers to a passage of Lindsay J's judgment in the case of P v NSW Trustee and Guardian, at [308]. For the benefit of these reasons, we will reproduce the passage in full: In considering whether a person is or is not capable of managing his or her own affairs, the Court should be mindful not to divert attention away from the question by any elaborative gloss. Nevertheless, a focus for attention is whether the person is able to deal with (making and implementing decisions about) his or her own affairs (person and property, capital and income) in a reasonable, rational and orderly way, with due regard to his or her present and prospective wants and needs, and those of family and friends, without undue risk of neglect, abuse or exploitation.
The Appellant submits that the Tribunal erred because rather than applying what the Appellant says is the "common law test" in the above passage, the Tribunal: 1. Per Ground One, "required the Appellant to be able to fully account for his spending of his regular pension and the entire Stolen Generation Reparations Scheme payment"; and 2. Per Ground Two, misapplied the test in P v NSW Trustee and Guardian, by failing to have due regard to the wants and needs of family and friends as understood in the Appellant's culture and the cultural imperatives of caring and sharing with friends and family.
These grounds are misconceived and must be rejected. The relevant passage in P v NSW Trustee and Guardian is not a common law test for incapacity for self-management. Justice Lindsay describes in that passage things the Court (or Tribunal) "should be mindful" of, and "focus [its] attention" on "in considering whether a person is or is not capable of managing his or her own affairs". In other words, he describes considerations a court (or tribunal) should turn its mind to when considering the statutory test (s 25G of the Act) - His Honour does not prescribe an altogether different test.
To interpret the passage in the manner proposed by the Appellant would be to mischaracterise obiter dicta and elevate it to the status of ratio decidendi; by that, we mean it confuses something said "by the way", with something that is a binding test. The binding statutory test for incapacity is set out in s 25G(a) of the Act.
The above passage in P v NSW Trustee and Guardian is often cited by the Tribunal in matters concerning financial management. Omitting to explicitly refer to this passage does not amount to an error of law, and in any event, it does not follow that the Tribunal's reasoning was devoid of the considerations to which Lindsay J referred, or ultimately those which s 25G(a) of the Act requires.
When read fairly and as a whole, the reasons reveal that the Tribunal found a number of factors indicated that the Appellant lacked capacity to manage his financial affairs, without singling out any single factor as the "test", as is suggested by the Appellant. The focus of the Tribunal's consideration of the Appellant's capacity to manage his affairs was explained at [39]: [W]e focussed squarely on whether [the Appellant] could demonstrate an understanding of the decisions he made, in the context he made them, and the consequences of those decisions.
This is evident in [41], where the Tribunal explains at some length its consideration of the Appellant's own understanding of his expenses and income as stated by him at the hearing, including consideration of whether he understood the consequences of his financial decisions, whilst allowing for reasonable mistakes, inconsistencies or omissions in the Appellant's evidence.
The Tribunal's focus and consideration of the relevant facts was consistent with the statutory test for capacity in s 25G of the Act. We do not accept the contention that some other test was or should have been applied. For that reason, grounds three and five must be rejected.

Ground Four

This ground alleges a failure of the Tribunal to afford procedural fairness to the Appellant by failing to offer or afford the Appellant an opportunity to obtain further evidence as to relevant Aboriginal cultural norms and practices in circumstances where that evidence was material to the Tribunal's consideration.
The originating application squarely raised concerns as to how a future reparations payment was going to be managed by the Appellant in light of specific concerns about how the first reparations payment was disbursed.
The Appellant's representative was therefore on notice, and it was in any event self-evidently the case, that the subject person's cultural norms and practices were a relevant factor for the Tribunal's consideration, because this was, in essence, the rationale given by the Appellant himself for how the first reparations payment was disbursed.
This is distinguishable from a case in which the relevant party was not represented, as described in CKG v Public Guardian [2014] NSWCATAP 32, [23]: The Tribunal has an obligation under s 38(5)(a) of the NCAT Act to ensure that the parties to the proceedings before it understand the nature of the proceedings…They should have explained to them their right to apply for an adjournment or some other direction that might alleviate the prejudice they perceive. It does not follow that the Tribunal must accede to such an application, but the person affected should be given the opportunity in circumstances of the present kind to present their case for an adjournment.
Notwithstanding that, the Appellant's representative never suggested to the Tribunal that further and better evidence going to cultural factors could be made available in the event the hearing was adjourned and further time was allowed. No adjournment was requested by the Appellant's representative, and the Tribunal was under no duty to offer an adjournment such as that afforded to an unrepresented party: Italiano v Carbone [2005] NSWCA 177.
It follows that this ground is rejected.

Ground Six

Ground Six of the Notice of Appeal asserts that the Tribunal below took into account an irrelevant consideration, namely the Appellant's reluctance to participate in the hearing in determining whether the Appellant was incapable of understanding and managing his financial affairs. No written submissions were filed in support of this ground.
The Appellant's oral submissions referred to the Tribunal's reasons at [40] as illustrating the error, in which the Tribunal said: We should note that [the Appellant] objected to being questioned about these issues, despite our explanation of the purpose of the questions and him being represented by a solicitor. It was difficult, on that basis, to draw a bright line between [the Appellant]'s reluctance to participate in the process and whether his unwillingness to do so could in itself, indicate an inability to understand his financial affairs or, more particularly, be a strategy used by him to retreat into indignation at being questioned when he felt threatened by his inability to recall or explain his actions.
For the sake of context, it is worth noting in the subsequent paragraph ([41]), the Tribunal said: In the end, despite his reluctance, we were satisfied that [the Appellant] participated sufficiently for us to gain an appropriate understanding of his ability to manage his financial affairs, which was enough for us to be satisfied that he is unable to do so in the context of receiving another significant lump sum reparation payment.
It was incumbent upon the Appellant to identify how, whether expressly or by implication, the Act prohibited the Tribunal below from taking into account any reluctance on the part of the Appellant to participate in the proceedings in the exercise of its power under s 25G to make a financial management order.
For us to find error, the Appellant must establish that any action (or failure to act) on the part of the Appellant which may have led the Tribunal below to form the view that the Appellant was reluctant to participate in the hearing was a consideration the Tribunal was not permitted to take into account. As explained by Basten JA in Lo v Chief Commissioner of State Revenue [2013] NSWCA 180 at [9]: [F]urther, a matter traditionally described as an "irrelevant consideration" is one which is prohibited because, having regard to the subject matter, scope and purpose of the power being exercised, it can be seen to reflect an extraneous or improper purpose or to render the decision arbitrary or capricious. Between these two categories [relevant and irrelevant considerations] is usually a wide range of permissible considerations which the decision-maker may weigh or disregard without committing an error of law.
A differently constituted Appeal Panel in the matter of ZGM v ZGN [2018] NSWCATAP 101 noted at [59]: Determining whether a particular consideration is an irrelevant consideration, or a "forbidden consideration", to use the term adopted by Aronson, Groves and Weeks in Judicial Review of Administrative Action and Government Liability (Thomson Reuters, 6th ed, 2017) at [5.30], requires consideration to be given to the nature of the power to be exercised and construction of the statute conferring the discretion: Peko-Wallsend at [40].
We are not satisfied that there was any restriction on the Tribunal below having regard to any reluctance on the part of the Appellant to participate in the proceedings in the exercise of its power under s 25G of the Act to make a financial management order if it wished to do so. We note that in any event we are not persuaded from the language and the context of Tribunal's reasons that it did in fact have any regard to this issue in exercising the relevant discretion. This ground is rejected.

Should the Appeal Panel grant leave to appeal on grounds other than a question of law?

The Appellant also sought leave to appeal against the decision of the Tribunal at first instance on five grounds. Given that Ground Two of the appeal in relation to failure to take account of a mandatory consideration has been made out, amounting to an error of law, it is unnecessary to determine whether leave to appeal should also be granted.

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

The Appellant submitted that the grounds of appeal warranted a new hearing and that the appeal should otherwise be dealt with as permitted in s 80(3)(a) of the NCAT Act which provides: 80 Making of internal appeals … (3) The Appeal Panel may - (a) decide to deal with the internal appeal by way of a new hearing if it considers that the grounds for the appeal warrant a new hearing, and
Section 81 of the NCAT Act outlines the orders the Appeal Panel may make as it considers appropriate in determining an internal appeal: 81 Determination of internal appeals (1) In determining an internal appeal, the Appeal Panel may make such orders as it considers appropriate in light of its decision on the appeal, including (but not limited to) orders that provide for any one or more of the following - (a) the appeal to be allowed or dismissed, (b) the decision under appeal to be confirmed, affirmed or varied, (c) the decision under appeal to be quashed or set aside, (d) the decision under appeal to be quashed or set aside and for another decision to be substituted for it, (e) the whole or any part of the case to be reconsidered by the Tribunal, either with or without further evidence, in accordance with the directions of the Appeal Panel. (2) The Appeal Panel may exercise all the functions that are conferred or imposed by this Act or other legislation on the Tribunal at first instance when confirming, affirming or varying, or making a decision in substitution for, the decision under appeal and may exercise such functions on grounds other than those relied upon at first instance.
We note that Ms Larkins, separate representative for ZOH, also submitted that the appeal should be dealt with by way of a new hearing.
A differently constituted Appeal Panel provided the following analysis of the function of the Appeal Panel contemplated by s 80(3)(a) of the NCAT Act in the matter of Yuen v Thom [2016] NSWCATAP 243: 14 The appellant sought to rely on additional evidence at the hearing of the appeal, in order to establish her ground of appeal. We turn to consider the basis upon which the further evidence may be received on an appeal under s 80 of the Act. This necessitates consideration of the nature of an appeal under the Act. 15 In Lacey v Attorney-General (Qld) (2011) 242 CLR 573, the High Court of Australia identified the differences between various types of appeals as follows (at [57], citations omitted): Appeals being creatures of statute, no taxonomy is likely to be exhaustive. Subject to that caveat, relevant classes of appeal for present purposes are: 1. Appeal in the strict sense - in which the court has jurisdiction to determine whether the decision under appeal was or was not erroneous on the evidence and the law as it stood when the original decision was given. Unless the matter is remitted for rehearing, a court hearing an appeal in the strict sense can only give the decision which should have been given at first instance. 2. Appeal de novo - where the court hears the matter afresh, may hear it on fresh material and may overturn the decision appealed from regardless of error. 3. Appeal by way of rehearing - where the court conducts a rehearing on the materials before the primary judge in which it is authorised to determine whether the order that is the subject of the appeal is the result of some legal, factual or discretionary error. In some cases in an appeal by way of rehearing there will be a power to receive additional evidence. In some cases there will be a statutory indication that the powers may be exercised whether or not there was error at first instance. 16 In Engelbrecht v Director of Public Prosecutions (NSW) [2016] NSWCA 290 at [59] to [61] McColl JA noted as follows (footnotes omitted): [59] An "appeal" is always a creature of statute. The words "appeal" and "rehearing" may be used in a number of senses. Further, the word "rehearing" has been used in statutes, or employed in construing statutes, to indicate, in differing senses, the nature of the task to be performed by an appellate court. The variable usage of these terms is such that the precise nature of the statutory remedy of appeal afforded to a dissatisfied litigant, and the procedures attendant upon it, will ultimately depend upon the provisions of the statute creating the right of appeal. However the context of the term, the history of the legislation and the surrounding circumstances will also be relevant. [60] Broadly speaking, there is a recognised distinction between first, appeals in the strict sense - in which the court has jurisdiction to determine whether the decision under appeal was or was not erroneous on the evidence and the law as it stood when the original decision was given, secondly, appeals de novo - where the court hears the matter afresh, may hear it on fresh material and may overturn the decision appealed from regardless of error (appeal de novo), and, thirdly, appeals by way of rehearing - where the court conducts a rehearing on the materials before the primary judge in which it is authorised to determine whether the order that is the subject of the appeal is the result of some legal, factual or discretionary error and, in some cases, has power to receive additional evidence (error based appeal). In the latter case, although the appeal is described as being "by way of rehearing", it does not "call for a fresh hearing or hearing de novo [and] the court does not hear the witnesses again." [61] One of the indicia of a rehearing function is the conferral of a discretion on an appellate body to admit further evidence. Such a power is of a remedial nature conferred "to facilitate the avoidance of errors which cannot be otherwise remedied by the application of the conventional appellate procedures." 17 Subsection 80(3) of the Act provides that the Appeal Panel may, if the grounds so warrant, determine the appeal by way of a new hearing and in such a case, receive further evidence (including evidence additional to or in substitution for the evidence at first instance). Section 80(3)(b) gives the Appeal Panel the widest possible latitude for the receipt of evidence. This together with the use of the expression "new hearing" suggests that s 80(3) is contemplating a hearing de novo, as referred to in the extracts above. However, such an appeal is conducted on such a basis only where, in its discretion, the Appeal Panel decides to conduct it as a "new hearing" because it is satisfied that "the grounds of appeal warrant a new hearing": s 80(3)(a) of the Act. Otherwise, internal appeals to the Appeal Panel are not determined by way of a new hearing
Having concluded that the Tribunal below erred in not taking account of a mandatory consideration in the proceedings, we have decided to exercise our discretion to deal with the appeal by way of a new hearing.
We have formed the view that to proceed by way of a new hearing and permitting the new evidence filed in the appeal to be considered is the most appropriate course of action having regard to s 4 of the Act and s 36 of the NCAT Act.
Whilst yet to be tested and considered, on its face, some of the new evidence filed in these proceedings (see [36] above), evidence that was not available to the Tribunal below, may allow for greater consideration of the relevance of the Appellant's cultural background in relation to the formation and/or continuation of the current order.
Further, and again, whilst yet to be tested and considered, on its face, there is also seemingly evidence which may bring in to question the quantum of any lump sum entitlement coming to the Appellant's estate, if at all. Given the primary motivation for the Tribunal exercising its discretion to make the order below was due to that panel's understanding that there was an imminent lump sum payment pending (see [43] of the reasons replicated at [21] above), it is appropriate that the matter proceed by way of a new hearing before us.

Orders

We make following orders: 1. The Appeal Panel will deal with the appeal by way of a new hearing. 2. All evidence and submissions that were before the Tribunal below together with all evidence and submissions filed to date in this appeal will be considered to have been given in the new hearing before the Appeal Panel. 3. The order of the Tribunal of 3 October 2019 committing the management of the Appellant's estate (excluding any Centrelink income) to NSW Trustee and Guardian is to remain in force without variation pending further orders of the Appeal Panel. 4. The Appeal proceedings are adjourned to a date to be fixed by the Registrar.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 06 August 2020

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