ZOZ v ZPA

Parties

1. When these matters were listed for hearing, there was only one proceeding with ZOZ named as the appellant, the Facility Service Manager of the Aged Care Facility as first respondent, ZPB as second respondent and the Public Guardian as third respondent. In fact, there are two proceedings - the appeal from the guardianship order and the appeal from the financial management order. Each proceeding has separate parties. The Appeal Panel inadvertently failed to advise Mrs X and the NSW Trustee that they were parties to the Appeal Panel proceedings.
2. The parties to an appeal include "any person or body (other than the appellant) who was a party to the proceedings before the Tribunal at first instance." Civil and Administrative Tribunal Rules 2014 (NSW), rule 29(b). The parties to the application for review of the guardianship order were ZOZ (the person who requested the review), Mrs X (the person the subject of the order), ZPB (the enduring guardian) and the Public Guardian: Guardianship Act, s 3F(3). Consequently, the parties to the appeal from the guardianship order are ZOZ (the appellant), ZPB (the first respondent), Mrs X (the second respondent) and the Public Guardian (the third respondent).
3. The parties to the application for financial management were the Facility Service Manager of the aged care facility (the applicant), Mrs X (the person to whom the application relates), ZPB (the person appointed attorney by Mrs X under a power of attorney that is in force) and the NSW Trustee: Guardianship Act, s 3F(5). The parties to the appeal from the financial management order are ZOZ (the appellant), ZPA (the first respondent), who is the Manager of the aged care facility who was a party because she had been a party to the financial management application, Mrs X (the second respondent), ZPB, who was a party because he had been a party to the financial management application (the third respondent) and the NSW Trustee and Guardian as appointed manager of Mrs X's estate (the fourth respondent).
4. We are obliged "to ensure that each of those parties has a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings": Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), s 38(5)(c). To remedy the mistake in failing to give Mrs X and the NSW Trustee and Guardian that opportunity, we made the following directions: 1. By 12 June 2020, Mrs X and the NSW Trustee and Guardian are to send to the Appeal Panel, with a copy to each other party, an answer to the following questions: 1) Do you wish to be heard or otherwise have your submissions considered in the proceedings? 2) If so, do you wish to do so: a. By providing written submissions to the Tribunal and the other parties with no further hearing; b. At a reconvened telephone hearing with all the parties' present; c. By some other means? 2. By 19 June 2020 each other party is to send to the Appeal Panel, with a copy to each party, its response to any proposal by Mrs X or the NSW Trustee. 3. Subject to any views of the parties as to whether an interlocutory hearing is necessary, the Appeal Panel will consider any proposal by Mrs X or the NSW Trustee and Guardian, 'on the papers' and advise the parties of its decision. Note: If, by 12 June 2020, there is either no response or a response that the party does not wish to be heard, the Appeal Panel will proceed to determine the appeal. If either of the parties wish to be heard, the Tribunal will decide how that it is occur.
5. We did not receive a response from Mrs X or from the NSW Trustee and Guardian. The Public Guardian re-filed their Reply. Having given the omitted parties a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings, we have decided to make a decision without any input from those parties.

Representation

1. Apart from Mrs X, each party participated in the hearing by phone. None of the parties was represented by a lawyer but we gave the appellant permission to have the support of a "McKenzie friend", who was a solicitor. A McKenzie friend is any Australian legal practitioner who is permitted by the Tribunal to support a party, but not to make oral submissions or otherwise participate in the hearing as an advocate. Despite ZPB's objection, we decided to allow ZOZ to have a McKenzie friend because it would "promote the just, quick and cheap resolution of the real issues in the proceedings": NCAT Act, s 36(1).

Material provided in breach of the Appeal Panel's directions

1. Even though some of ZOZ's submissions and evidence were filed outside the time given by the Tribunal, we have taken that evidence and those submissions into account where relevant. There is no prejudice to the other parties because, with the exception of an email which we address later in these reasons, none of the material is relevant.

Tribunal's decision

1. One of the requirements of a guardian is that the person "is both willing and able to exercise the functions conferred or imposed by the proposed guardianship order": Guardianship Act 1987 (NSW), s 17(1)(c). The Tribunal referred to the Supreme Court's understanding of that phrase in in P v D1 & Ors [2011] NSWSC 257 at [107]. Being able to exercise those functions, includes being able to exercise those functions objectively. One indication of objectivity is having insight into past deficiencies: P v D1 & Ors [2011] NSWSC 257 at [107].
2. The Tribunal concluded that ZOZ was not able to exercise the functions of a guardian. The Tribunal came to that decision based on the evidence presented before and during the hearing. The Tribunal also took into account the reasons set out in the most recent Tribunal decision - the June 2019 decision. That Tribunal had different members from the December 2019 Tribunal.
3. As well, the person must be able to exercise their decision-making authority in accordance with the principles in the Guardianship Act: W v G [2003] NSWSC 1170 at [26] per Windeyer J. The paramount consideration is the welfare and interests of the subject person: Guardianship Act, s 4. Other relevant considerations are listed in that provision and in s 14. It follows that being willing to be appointed as a person's guardian is not sufficient. The person must be able to act in accordance with all the principles in the Guardianship Act. The Tribunal must assess that ability based, in large part, on past conduct.

Right of appeal

1. A person has the right to appeal on a "question of law": NCAT Act, s 80(2). ZOZ identified some questions which she said were questions of law.

Bias

1. In the Notice of Appeal, ZOZ alleged that ". . . the atmosphere at the hearing by Tribunal members was not impartial and at times responded with hostility towards both ZOZ . . ." We understand this ground of appeal to be that the Tribunal has breached one of the rules of procedural fairness - namely the rule against bias. That is a question of law.
2. The rule against bias is about objectivity and impartiality. We understand ZOZ to be alleging actual or apprehended. The legal test for apprehended bias requires a decision maker to disqualify herself from hearing a matter if a fair-minded lay observer might reasonably apprehend that the decision maker might not bring an impartial mind to the resolution of the question to be decided. (Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 75 ALJR 277 per Gleeson CJ, McHugh, Gummow and Hayne JJ at [6] and [8].)
3. ZOZ submitted that: Tribunal Members . . . showed little impartiality towards (me) during the hearing and the audio recording of the hearing shows a growing distain (sic) from (the presiding) Tribunal Member in the way she chose to speak and respond to ZOZ. (Words in brackets added.)
4. At the hearing, ZOZ did not highlight any particular passage or exchange to support her submission. Having read those parts of the transcript provided by ZOZ and having listened to the recording of those parts of the proceedings, they do not disclose any apprehension of bias as described by the High Court in Ebner. We have concluded that the Tribunal was not biased, nor was there a reasonable apprehension of bias.

Mrs X' views

1. A second ground of appeal on a question of law was that the Tribunal did not take sufficient account of Mrs X's view that she wanted ZOZ to be her guardian. Under s 4 of the Guardianship Act, "It is the duty of everyone exercising functions under this Act . . . to observe the following principles: "the views of (the subject person) in relation to the exercise of those functions should be taken into consideration." At [27] of the decision, the Tribunal took into account that Mrs X had indicated that she wanted ZOZ to assist her with matters. The Tribunal "placed weight on Mrs X's expressed preference" but also took into account other matters. While it must take into account Mrs X's views, it is not bound to act in accordance with them. The Tribunal's approach does not disclose any error of law.

Failure to rely on evidence from previous hearings

1. ZOZ submitted that the Tribunal should have relied on all the evidence provided by the parties at previous Tribunal hearings involving Mrs X on 25 July 2018, 17 April 2019 and 20 June 2019. She said the Tribunal refused to acknowledge information from prior hearings.
2. At [20] of the Tribunal's reasons, the Tribunal summarised its approach to the evidence in the previous hearings: In her submissions ZOZ raises issues about the documents provided at previous Tribunal hearings and previous decisions of the Tribunal. The current hearing is a review of the order in the context of current circumstances and is not in the nature of an appeal about previous decisions. The material considered in previous matters was not brought forward to the current hearing and was not considered by the Tribunal on this occasion.
3. At [30], the Tribunal added that: With the exception of complaints about recent decisions of the Public Guardian, we were of the view that the substance of the matters raised by ZOZ had been considered by the Tribunal when it made the order in June 2019. We were not able to discern in the current material and oral presentations, any additional material regarding Mrs X' current circumstances that would indicate that it is in her best interests to revoke the appointment of the guardian and to appoint a different guardian.
4. It is not the Tribunal's role when reviewing a guardianship order or when considering a further application for financial management, to review the evidence in previous proceedings. The issues must be determined in relation to the state of affairs as at the hearing date. For example, in relation to an application for financial management, one issue is whether an order is in the best interests of the subject person at the time of the hearing and for the reasonably foreseeable future: McD v McD (1983) 3 NSWLR 81 at [86]; Re W and L (Parameters of Estate Management Orders) [2014] NSWSC 1106 at [20]. If circumstances have not changed since a previous hearing, then the findings of the Tribunal at that time will be relevant. The Tribunal took into account several of the previous Tribunal's findings of fact, some of which are addressed in more detail below.

Right to receive medical treatment

1. One question which ZOZ characterised as a question of law was that it is in the interests of "natural justice" for her mother to have the opportunity to continue to receive medical treatment. According to ZOZ, the aged care facility has withheld medical treatment or limited that treatment contrary to terminal care guidelines and the Australian Charter of Healthcare Rights.
2. Natural justice is another term for procedural fairness. Procedural fairness requires that the procedure for making a decision, as distinct from the substance of the decision, is fair. As well as the bias rule, procedural fairness requires that people like ZOZ have a fair hearing: Kioa v West (1985) 159 CLR 550 at 563. Procedural fairness does not require the Tribunal to enforce the principles such as those in the Australian Charter of Healthcare Rights. The Tribunal's role is limited to determining the relevant issues in the proceedings. ZOZ has not identified any breach of procedural fairness, or any other error of law, in relation to Mrs X's right to receive medical treatment.

Referral to DPP

1. ZOZ suggested that the Appeal Panel should refer any instances of information being withheld or omitted to the Director of Public Prosecutions for penalties to be applied. That suggestion does not identify a question of law and, in any case, we do not have that power.

Appeal on other grounds

1. ZOZ has asked for permission to appeal from some of the factual findings the Tribunal has made. If a person wishes to appeal on questions other than questions of law, such as the factual findings, he or she needs to obtain the Appeal Panel's permission to do so: NCAT Act, s 80(2) (b). If a person appeals from a factual finding, generally the Appeal Panel will look at the evidence provided to the Tribunal, and the Tribunal's findings based on that evidence. For example, if the Tribunal has made a mistaken factual finding or has gone about the fact-finding process in a way that it is likely to produce an unfair result, the Appeal Panel may give the appellant permission to appeal: NCAT Act, s 80(2)(b) and Collins v Urban [2014] NSWCATAP 17 at [84].
2. Several findings of fact at [27] of the decision, led the Tribunal to conclude that ZOZ was not able to act objectively as the guardian and, impliedly, that she was unable to act in accordance with the principles in the Guardianship Act. The Tribunal found that ZOZ's lack of objectivity was apparent based on five findings of fact. We have highlighted the findings with which ZOZ disagrees: 1. Her lack of regard to the views of Associate Professor Brennan regarding Mrs X' diagnosis and treatment; 2. Her failure to bring to the notice of the Tribunal that convened on 20 June 2019, the report of Associate Professor Brennan and to objectively critique his views, even if she disagreed with them. 3. Her failure to seek written reasons for the decisions of the Public Guardian with which she disagrees and to take advantage of the processes established to deal objectively with differences of opinion, even after she was advised about those processes; 4. In our view the evidence, statements and submissions provided by ZOZ indicate that her views about aspects related to her mother's care differ from those of the Public Guardian and others. There are established processes for dealing with such differences of opinion and for challenging decisions made by the Public Guardian and seeking independent review of those decisions; 5. ZOZ's emails to the Public Guardian challenge the decisions and processes of the Public Guardian and the appropriateness of the aged care facility. However, they do not indicate alternative proposals with adequate detail to be assessed by the guardian as part of an objective decision making process.
3. The Tribunal added that ZOZ "vigorously asserts her views without taking into account other views or seeking independent review of the Public Guardian's decisions. That characteristic suggests that she would make decisions in accordance with her views and without proper regard to the views of others."
4. Below we consider each of ZOZ's challenges to the highlighted findings.

Lack of regard for the views of Associate Professor Brennan

1. A/Prof Brennan assessed Mrs X and provided a report dated 20 May 2019. He diagnosed her as having advanced dementia in the moderately severe range. He noted that ZOZ had asked him to increase the anti-depressant medication prescribed for Mrs X, but in his opinion, that would not change anything. He also commented that ZOZ was unhappy with his assessment and wrote to tell him so.
2. ZOZ submitted that she did not have a "lack of regard" for A/Prof Brennan's views. Her criticism of A/Prof Brennan's report was that he used a functional assessment tool, disregarded the MRI report and Mrs X's response to the assessment in circumstances where she could not understand him.
3. In our view, the term "lack of regard" is an accurate shorthand way to describe ZOZ's opinion of A/Prof Brennan's report. She was critical of it in many respects. The Tribunal's finding to that effect was open on the basis of the report and the evidence ZOZ gave. We refuse to give permission to appeal from this factual finding.

Failure to bring to the notice of the Tribunal that convened on 20 June 2019, the report of Associate Professor Brennan

1. In considering the appropriateness of appointing ZOZ as Mrs X's guardian, the Tribunal took into account some of the previous Tribunal's findings from the 20 June 2019 hearing. At that hearing, the Tribunal decided to make a further guardianship order for 12 months and to appoint the Public Guardian as Mrs X's guardian. At [21] of that decision, the Tribunal found that: ZOZ has sought that a full assessment of her mother's health condition be undertaken because of concerns regarding the diagnosis and cause of her mother's cognitive condition. She attempted to take her mother to an appointment at St Vincent's hospital in Sydney, but her mother refused to attend the appointment.
2. At the 20 June 2019 hearing, the Tribunal did not have before it the report of A/Prof Brennan which had been written one month earlier - on the 20 May 2019. The Tribunal hearing the matter in December 2019 made an adverse finding against ZOZ at 27(b) about her failure to bring that report to the notice of the Tribunal and to objectively critique A/Prof Brennan's views, even if she disagreed with them.
3. At [22], the Tribunal made the following findings about A/Prof Brennan's assessment, with our emphasis: 1. The assessment pre-dates the Tribunal's hearing on 20 June 2019. The Reasons for Decision of that Tribunal indicate that ZOZ advised at that hearing that she had attempted to take Mrs X to an appointment at St Vincent's Hospital but her mother had refused to attend the appointment and she still sought a full and comprehensive assessment of her health condition. There is no indication in the Reasons for Decision that ZOZ advised the Tribunal that Associate Professor Brennan had completed an assessment or of his views. 2. During the hearing, ZOZ denied keeping the details of the assessment by Associate Professor Brennan from the Tribunal and asserted that others had access to his letter and could have provided it to the Tribunal.
4. We understand the reference to "others" who had access to the report to include a reference to ZPA, the Facility Service Manager.
5. ZOZ denies that she failed to bring to A/Prof Brennan's report to the notice of the Tribunal that convened on 20 June 2019. ZOZ did not give the Appeal Panel that part of the transcript where this issue was discussed in the current Tribunal proceedings. Without the transcript evidence, it is not possible to determine whether the Tribunal's finding that ZOZ failed to bring the report to the notice of the Tribunal that convened on 20 June 2019, was open on the evidence. On that basis we refuse to give permission for ZOZ to appeal from this finding.
6. ZOZ attempted to tender a great deal of fresh evidence on appeal. Strict requirements surround the admission of evidence on appeal that was not before the Tribunal at the hearing. Fresh evidence can only be taken into account in very limited circumstances. In ZBC v ZBD [2016] NSWCATAP 264 (14 December 2016) the Appeal Panel stated at [32]: If the Appeal Panel is to exercise its discretion in favour of the party applying for leave, 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" (Building Professionals Board v Hans [2008] NSWADTAP 13, at [54]; ZCK v NSW Trustee and Guardian [2016] NSWCATAP 200, at [25]).
7. Applying that test, we have not taken into account any of the new or fresh evidence ZOZ purported to file. However, she did provide one item of evidence that warrants closer consideration. ZOZ provided to the Appeal Panel an email addressed to her and dated 27 May 2019 from NSW Cardiology attaching A/Prof Brennan's report. In her written submissions to the Appeal Panel ZOZ asserted that: It was only after the Public Guardian made these allegations (that she withheld the specialist medical opinion in regard to Mrs X) that ZOZ conducted a search through her email account and discovered on August 30 2019 the original email sent to her by the reception at NSW Cardiology that contained Ass Prof Brennan's reports. This email was dated 27 May 2019. (Words in brackets added.)
8. We have decided not to admit the email or ZOZ's evidence about when she received it because that evidence was available at the time of the hearing in December 2019 and, even if admitted, is not likely to have produced a different result. Even if the Tribunal had that evidence and found that ZOZ had not opened the email until 30 August 2019, the Tribunal is likely to have made the same ultimate decision. The failure to bring A/Prof Brennan's report to the notice of the 20 June 2019 Tribunal was one of many reasons for doubting ZOZ's objectivity. Even without that finding, there were several other examples which, taken together, support the Tribunal's finding that ZOZ is not "able" to exercise the functions conferred by the proposed guardianship order.

Refusal to attend an appointment with A/Prof Brennan

1. At [22] the Tribunal mentions that, in the 20 June 2019 Tribunal decision, the Tribunal found that ZOZ had attempted to take Mrs X to an appointment with A/Prof Brennan but that her mother had "refused to attend the appointment and she still sought a full and comprehensive assessment of her health condition."
2. ZOZ wrote in a submission to the Appeal Panel that at the 20 June 2019 hearing, the Public Guardian's representative "incorrectly thought an appointment that was made for Mrs X to see A/Prof Brennan on 20 May 2019 did not go ahead." ZOZ says she confirmed to the June 2019 Tribunal that it did go ahead and added that, "Mrs X refused to participate when we weren't in the room." ZOZ provided a copy of the relevant transcript to the Appeal Panel which supports her contention that she gave that evidence.
3. Even if the previous Tribunal's finding on that issue was mistaken, and the Tribunal adopted that finding, it did not have any effect on the decision. The Tribunal did not mention that finding at [27], in the list of findings supporting their view that ZOZ lacked objectivity. For that reason, even though it appears to be incorrect, we refuse leave to appeal from the Tribunal's finding that Mrs X refused to attend the appointment with A/Prof Brennan.

Failure to request review of Public Guardian's decisions

1. A further reason for the Tribunal's conclusion that ZOZ was not "able" to exercise the functions conferred by the proposed guardianship order because she lacked objectivity, was her failure to seek reasons for the decisions of the Public Guardian with which she disagrees. ZOZ disputes this finding. She says she has sought reasons for the Public Guardian's decisions. However, she did not provide a copy of any document as evidence of that assertion. When questioned by the Appeal Panel, she eventually acknowledged that while she has complained about the Public Guardian, she had not sought an administrative review of any of the Public Guardian's decisions relating to her mother. By "administrative review" we mean a request for internal or external review under the Administrative Decisions Review Act 1997 (NSW).

Failure to take account of others' views

1. The Tribunal below found that ZOZ vigorously asserts her views without taking into account other views or seeking independent review of the Public Guardian's decisions. ZOZ considers this finding offensive. She attempted to make good that point by referring to the conduct of others. ZOZ was the only person who put her name forward to be appointed as Mrs X's guardian. It is her ability to exercise the functions conferred by the proposed guardianship order that is in issue, not the ability of others to do so. We refuse permission to appeal from this finding.

New evidence and allegations

1. ZOZ had requested that other parties - her brother (ZPB) and the Service Facility Manager (ZPA) - provide further evidence to substantiate claims they made about her at the Tribunal hearing.
2. We appreciate that ZOZ feels that her brother has made false allegations about her and that the Tribunal was wrong to find that she should not be appointed as her mother's guardian. However, the Appeal Panel's role is not to decide who is right and who is wrong in relation to all the allegations and assertions that the parties have made. Our role is a very specific and narrow one. Unless we admit fresh evidence, we must look at the Tribunal's findings and decide, based on the evidence that was before the Tribunal at the time, whether we should give ZOZ permission to appeal. We do not have power to direct the parties to provide additional evidence. We refuse to give ZOZ permission to appeal so that we can ask other parties to provide more evidence.

Tribunal's decision

1. At [32], the Tribunal identified the issues to be considered. The contentious issues were whether there is a need for another person to manage Mrs X's financial affairs and whether it is in her best interests for a financial management order to be made: Guardianship Act, 25G (b) and (c). The issue as to who should be appointed as financial manager, did not arise. That was because ZOZ did not put herself forward as being a suitable financial manager if a financial management order was made: Decision at [49].
2. When considering whether there was a need to make a financial management order, the Tribunal took into account that Mrs X had made an enduring power of attorney which named ZOZ as a joint attorney with ZPB should her husband die. However, the Tribunal found that one of the reasons for the need to make a financial management order was that it could not rely on ZOZ's evidence. The Tribunal described that evidence as "inconsistent and confused': Decision, 45.
3. At [45], the Tribunal concluded that: In our view to manage Mrs X's affairs in her best interests requires at the least, an assessment of the relative advantages of paying a RAD (Refundable Accommodation Deposit) in full or in part, or paying the DAP (Daily Accommodation Payment), as compared to retaining funds in a Term Deposit. On her own evidence, ZOZ has not turned her mind to those matters. (Emphasis added.)
4. On the question of whether it was in Mrs X's best interests for a financial management order to be made, the Tribunal also found that ZOZ had not acted in her mother's best interests by failing to either sell her mother's house or rent it out. The house, valued at $320,000, had been vacant since May 2018.
5. The Tribunal did not accept ZOZ's attempts to blame the solicitor handling probate following the death of her father.

Payment of debt

1. ZOZ submitted that the Tribunal's decision was incorrect because "there was no indication that any lawful debt would not be paid." ZOZ submitted that the Tribunal had made an error of law by failing to enforce her right to obtain from the aged care facility details of costs, deductions and receipts for Mrs X's care. She maintained that it was within "Australian Standards" to ask for full costs disclosure.
2. The Tribunal made no error in finding that ZOZ had not turned her mind to consider the relative benefits of paying the Refundable Accommodation Deposit or the Daily Accommodation Payment. Her entitlement to any level of costs disclosure is irrelevant to the question of whether she has turned her mind to the payment of the RAD or the DAP. No question of law has been identified in this ground of appeal.

Australian Charter of Healthcare Rights

1. ZOZ requested that the ZPA, the Manager of the aged care facility, fulfil the standards of the Australian Charter of Healthcare Rights by making available the facility's communications with her about financial matters and any information which the facility, through ZPA, has provided to the Public Guardian. This ground of appeal is similar to two grounds of appeal we have considered in relation to the appeal from the guardianship order. For the same reasons we have given, it is not an error for the Tribunal to fail to require ZPA to provide evidence of her communications with ZOZ. Secondly, it is not an error for the Tribunal not to enforce the Australian Charter of Healthcare Rights.

Findings of fact

1. ZOZ challenged the Tribunal's finding that her evidence was "inconsistent or confused." In particular, she challenged the following passage from the Tribunal's decision at [41]: In her application, accompanying documentation and oral submissions, ZPA indicates that: 1. … 2. … 3. She met with ZOZ previously about this issue (the RAD and the DAP) and has attempted subsequently to deal with the issue in emails and has invited ZOZ to discuss the matter in a face to face meeting. However, ZOZ has not agreed to meet and has not provided a written response to the emails.
2. ZOZ submitted that ZPA did not provide any evidence of her communications about the statements and invoices she had provided. As we have said, she is not obliged to do so, and it is not an error for the Tribunal to accurately record her oral evidence. ZOZ provided a transcript of the evidence on which the Tribunal's summary was based: ZAP: So, on several occasions tried to have face to face discussions and invited via email . . .at the early stages, admitted to our service we just managed to have one face to face meeting but at the time it wasn't monetary issues, it was around care. But it doesn't matter how many times we ask that person to come and have a discussion with us or to offer us, even in writing how they might manage it moving forward, we're not getting an outcome.
3. On close examination, it appears that the Tribunal was incorrect to suggest that ZAP's evidence was that she had met with ZOZ face to face about the payment of the RAD and the DAP. Rather, she had met with her face to face about care issues. Otherwise, in our view, the Tribunal accurately summarised ZAP's oral evidence. That minor error is not a reason to give ZOZ permission to appeal. Even if that factual mistake had not been made, the Tribunal is likely to have come to the same conclusion.
4. The Tribunal also recorded ZOZ's evidence on this issue at 43; She has managed her mother's affairs as her attorney and the only outstanding issue was the payment of the DAP (Daily Accommodation Payment). She has not received a request to pay the amount and has only received statements from the facility. She has asked for details about the DAP including how the money would be used and believes that she is entitled to that information prior to making the payment.
5. For the reasons we have given in the appeal from the guardianship decision in relation to fresh evidence, we have not taken into account ZOZ's evidence on appeal that ZAP did not attempt to contact her by email or arrange a meeting with her.
6. ZOZ extracted an exchange between the presiding Tribunal member and herself about the communications with the aged care facility over the payment of the RAD and the DAP. ZPA's evidence was that despite sending ZOZ accounts via post and email, the fees have not been paid. On the basis of this, and other evidence, the Tribunal concluded that they were "not able to rely on the evidence of ZOZ as we found her statements to be inconsistent or confused."
7. The Tribunal did not make a finding as to the precise nature and extent of the communications between ZOZ and ZPA. But one of the reasons the Tribunal gave for making a financial management order was the fact that ZOZ had not turned her mind to the issue of whether there would be an advantage to her mother's estate in prompt payment of a RAD instead of maintaining the Term Deposit. As well, the Tribunal found ZOZ's evidence to be unreliable. We refuse to give ZOZ permission to appeal from the Tribunal's factual findings and conclusions on this issue.

Orders 1. Leave is refused for the appellant to appeal on grounds other than a question of law. 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: 25 June 2020