ZQP v ZQQ

Participation in the Appeal Hearing

1. Due to circumstances resulting from the COVID-19 pandemic, all parties were invited to participate in the hearing before us by telephone.
2. All parties to the proceedings participated in the hearing except ZQR. No party to the appeal was legally represented.
3. The Tribunal arranged an interpreter expert in the appropriate dialect to assist ZQQ. ZQQ only engaged in the hearing proceedings for a limited period upon commencement. In response to questions from the Appeal Panel to ascertain if ZQQ understood the nature and purpose of the hearing, ZQQ stated that "it was all about her money". She also said that she "would like to make a withdrawal today". It was evident to us that ZQQ's cognitive impairment meant that she was unable to provide us with her views on the proceedings and we limited our interactions with her to avoid causing her any distress.

Extension of time

1. The Notice of Appeal was not filed in the time provided in the Civil and Administrative Tribunal Rules 2014 (NSW). Accordingly, the appellant requested that she be granted an extension of time for lodgement.
2. The appellant stated in the Notice of Appeal that she received the reasons for decision on 16 April 2020. The Tribunal's records disclose that a copy of the reasons for decision was issued to the appellant on 16 April 2020.
3. The appellant had 28 days from the date she received the reasons for decision to lodge her Appeal: see Civil and Administrative Tribunal Rules, r 25(4)(c). She did not file her Notice of Appeal until 12 June 2020, so approximately one month out of time.
4. As to the reason why the Notice of Appeal was filed out of time, the appellant submitted that the impacts of the COVID-19 pandemic had prevented her from receiving the information she needed to file the Appeal. She also stated that she was waiting on advice from the Public Guardian on how to Appeal.
5. The appellant's request for a grant of extension of time was supported by her sister ZQS, but opposed by her other siblings, ZQT and ZQR. Neither the Public Guardian or the NSW Trustee and Guardian made any submissions on the appellant's request; however, the Public Guardian did state that their office had no record of any family member of ZQQ having made contact seeking advice regarding appeal rights.
6. The principles to be applied in considering an extension of time in which to appeal are well settled. Those principles are discussed in the judgment of O'Ryan J in Burns v O (a Solicitor) [2010] FamCAFC 124 as follows: The object of the rule is to ensure that those Rules which fix times for doing acts do not become instruments of injustice. The discretion to extend time is given for the sole purpose of enabling the Court or Justice to do justice between the parties: see Hughes v. National Trustees Executors and Agency Co. of Australasia Ltd. [1978] VicRp 27; [1978] VR 257 at 262. This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time: see Avery v. No.2 Public Service Appeal Board [1973] 2 NZLR 86 at 92; Jess v. Scott (1986) 12 FCR 187 at 194-195. When the application is for an extension of time in which to file an appeal , it is always necessary to consider the prospects of the applicant succeeding in the appeal : see Burns v. Grigg [1967] VicRp 113; [1967] VR 871 at 872; Hughes, at 263-264; Mitchelson v. Mitchelson (1979) 24 ALR 522 at 524. It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has "a vested right to retain the judgment" unless the application is granted: Vilenius v. Heinegar (1962) 36 ALJR 200, at p 201. It follows that, before the applicant can succeed in this application, there must be material upon which I can be satisfied that to refuse the application would constitute an injustice. As the Judicial Committee of the Privy Council pointed out in Ratnam v. Cumarasamy [1965] 1 WLR 8 at 12; [1964] 3 All ER 933 at 935: "The rules of court must prima facie be obeyed, and in order to justify a court in extending the time during which some step in procedure requires to be taken there must be some material upon which the court can exercise its discretion."
7. We found it appropriate to consider the appellant's arguments advanced to support her appeal prior to determining the leave and the extension of time applications. This was because we found, after hearing the appellant's arguments and reading her submissions, we were in a better position to determine whether the refusal of an extension of time would work an injustice having regard to the history of the matter, the nature of the proceedings, and the consequences of a refusal of the order sought.

Relevant legislation and principles

1. This appeal is an internal appeal brought under s 80 of the Civil and Administrative Tribunal Act 2013 (NSW) ("the CAT Act"). Section 80 provides as follows: 80 Making of internal appeals (1) An appeal against an internally appealable decision may be made to an Appeal Panel by a party to the proceedings in which the decision is made. Note: Internal appeals are required to be heard by the Tribunal constituted as an Appeal Panel. See section 27(1). (2) Any internal appeal may be made: (a) in the case of an interlocutory decision of the Tribunal at first instance - with the leave of the Appeal Panel, and (b) in the case of any other kind of decision (including an ancillary decision) of the Tribunal at first instance--as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds. (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 (b) permit such fresh evidence, or evidence in addition to or in substitution for the evidence received by the Tribunal at first instance, to be given in the new hearing as it considers appropriate in the circumstances.
2. The orders that may be made at the conclusion of an appeal are found in s 81 of the CAT Act as follows: 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 varying, or making a decision in substitution for, the decision under appeal.
3. As is apparent from s 80 of the CAT Act, the principal basis on which an appeal may be allowed is if an appellant establishes an error of law. The appeal panel of this Tribunal has identified a non-exhaustive broad category of matters that typically have been considered by courts as "an error of law" (see John Prendergast & Vanessa Prendergast v Murray Irrigation [2014] NSWCATAP 69). The categories identified commencing at [15] of that Appeal Panel's decision, with reference to authority, are whether: 1. there has been a failure to provide proper reasons: 2. the Tribunal identified the wrong issue or asked the wrong question; 3. a wrong principle of law had been applied; 4. there was a failure to afford procedural fairness; 5. the Tribunal failed to take into account relevant (i.e. mandatory) considerations; 6. the Tribunal took into account an irrelevant consideration; 7. there was no evidence to support a finding of fact; 8. the decision is so unreasonable that no reasonable decision-maker would make it.
4. The Tribunal will only grant leave to appeal in limited circumstances. The circumstances which may lead to a grant of leave to appeal in an internal appeal in this Tribunal are set out in Collins v Urban [2014] NSWCATAP 17 at [84]. The principles there enunciated incorporate the reasoning of Lindsay J in a guardianship appeal. The appeal panel at [84] explained: The general principles derived from these cases can be summarised as follows: (1) In order to be granted leave to appeal, the applicant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [19] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; (2) Ordinarily it is appropriate to grant leave to appeal only in matters that involve: (a) issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; or (c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed, BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [20] and the authorities cited there, SAB v SEM [2013] NSWSC 253 at [8] and [9] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; (3) In relation to an application for leave to appeal relating to a question of practice and procedure, the application is to be approached with the restraint applied by an appellate court when reviewing such decisions, especially if the application is made during the course of a hearing: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [21] and the authorities cited there.

The Decision(s) subject of the Appeal

1. The following extract of the Tribunal's reasons for its orders of 28 February 2020, the contents of which we understand to be uncontested, provides a useful background to the applications that were before the Tribunal. [2] [ZQQ] is a 79-year-old woman of Portuguese heritage. [ZQQ] lives in [West Sydney] with two of her children, [ZQS] and [ZQP]. [ZQQ] has four other children: [ZQR], [ZQT], [KEG] and [EEG]. [3] On 24 September 2019, the Tribunal received an application from [ZQT] for the review of an enduring power of attorney granted by [ZQQ] on 4 March 2019, appointing her daughters [ZQR], [ZQP] and [ZQS]. They were to act jointly once the attorneys agreed that [ZQQ] needed assistance to manage her affairs. [4] On 28 October 2019, the Tribunal received an application from [ZQT] for the review of an enduring guardianship appointment made by [ZQQ] in March 2019, again appointing her daughters [ZQR], [ZQP] and [ZQS] to act jointly, apparently in the standard terms. Despite bringing the application, [ZQT] did not have a copy of that document to provide to the Tribunal. [5] In the applications, and the material filed with them, [ZQT] made it plain that there had been a significant falling out in relations, in various ways, amongst his sibling group. He advised that he, [ZQS] and [ZQP] had, until recently, all lived with [ZQQ] in her house and that he had done so for more than the last 20 years. He advised that [ZQS] had recently moved into the house, into his mother's bedroom and obtained an interim Apprehended Domestic Violence order against him, the practical consequence of which was that he moved out of the home. He also claimed that [ZQS] had failed to account for [ZQQ]'s monies whilst acting as attorney. [ZQT] claimed that [ZQQ] had been going to appoint all of her children as guardians and attorneys, in around March 2019, and he was clearly concerned by what he saw as the change to that position indicated by [ZQQ] appointing only her daughters to those roles. [6] [ZQT] asked the Tribunal to review both the making, and the operation and effect of the power of attorney document and the appointment of enduring guardians executed in March 2019 by [ZQQ].
2. The applications were listed for a hearing before the Tribunal on 31 October 2019. The Tribunal adjourned the hearing making orders for parties to exchange relevant documents.
3. A further hearing was conducted on 20 December 2019. The Tribunal adjourned once more because none of the documents required to be produced by ZQS in accordance with earlier directions had been produced and there were some issues with the interpreter organised to assist ZQQ. The matter was adjourned to 28 February 2020 and on that date the applications were finally heard.
4. In relation to both applications that were before the Tribunal, that is, the review of an enduring power of attorney made by ZQQ dated 4 March 2019 and the review of the appointment of enduring guardianship also made by ZQQ on 4 March 2019, the Tribunal explained in its reasons that it decided to treat both applications as if applications for financial management and guardianship had been made. The Tribunal said: [42] We explained to the parties that one option for us was to proceed to review the power of attorney, make no orders in accordance with s 36(4) POA Act and treat the application as one for a financial management order. [43] We also explained that, in relation to the application to review the appointment of enduring guardians by [ZQQ], we could similarly treat the application as one for the appointment of a guardian for [ZQQ]. [44] We received evidence that [ZQS] was operating on the power of attorney, and doing so without the agreement in the decisions she made of both [ZQR] and [ZQP]. Whilst [ZQP]'s evidence was to the effect that deferred to [ZQS] in the decisions, and agreed with the decisions [ZQS] made, [ZQR]'s evidence was that she was not consulted in this process at all. In relation to the enduring guardianship appointment, it was apparent that these same communication issues were present. [45] In both cases, the lack of effective communication prevented the proper joint exercise of the enduring powers [ZQQ] had given. [46] We asked the parties how they thought we should proceed. [ZQQ] did not appear to be able to process this information and respond in relation to this issue. Each of the other parties, however, agreed that it would be appropriate to: (1) review the power of attorney, make no orders in accordance with s 36(4) POA Act and treat the application as one for a financial management order; and (2) treat the application to review the appointment of enduring guardians by [ZQQ] as one for the appointment of a guardian. [47] We were satisfied that was the appropriate course. [48] In relation to the power of attorney, a review was warranted given that it was being operated on by [ZQS] solely, rather than on its terms which requires joint decision making. Given the significant level of dispute between members of [ZQQ]'s family, and allegations that [ZQS] was misusing [ZQQ]'s money, considering the appointment of a financial manager with the consequential oversight of the manager it would bring if an order was made was most likely, in our view, to preserve [ZQQ]'s existing family relationships. It would, thereby, be likely to maintain her cultural and linguistic environment to the greatest extent possible. [49] We also decided to treat the application to review the appointment of enduring guardians by [ZQQ] as one for the appointment of a guardian. One of the allegations we needed to deal with was an allegation by [ZQR] that she was being denied access to [ZQQ]. The standard form of an enduring guardianship document, as used by [ZQQ], makes no provision for an enduring guardian to make access decisions. Whilst we could arguably have varied the enduring guardianship appointment to make such a provision, where it had not been an authority [ZQQ] decided to give her daughters and given the potential need for us to consider whether anyone was able to exercise all the functions of an enduring guardian in the relevant sense, we decided that this manner of dealing with the application was most likely to promote [ZQQ]'s welfare and interests.
5. The Tribunal then recorded at [55] that the overwhelming weight of the evidence was that ZQQ lacked an understanding of her financial position and they were satisfied that she was incapable of managing her affairs. The reasons also record that each of the parties to the proceedings indicated that they felt that ZQQ was incapable of managing her affairs. The Tribunal then went on to conclude that there was also a need for a financial management order to be made, such order being in ZQQ's best interests as follows: [56] [ZQT] alleges that [ZQS] has been misusing [ZQQ's] finances. [ZQS'] evidence was that she has been acting as attorney, but she had no records about her dealings with [ZQQ]'s financial affairs in that manner, which we will return to later. Additionally, [ZQS] indicated late in the hearing that she plans to sell [ZQQ]'s house and divide the proceeds between [ZQQ's] six children immediately, which, again, we will return to. We were satisfied that there is a need for another person to manage [ZQQ]'s affairs and that it was in her best interests for an order to be made, given this situation.
6. The remainder of the reasons in relation to financial management go on to explain why the Tribunal refused the requests of both ZQS and ZQT, separately, to be appointed as financial managers, and why the Tribunal committed ZQQ's estate to the management of the NSW Trustee and Guardian.
7. In relation to the matters pertaining to guardianship, the Tribunal concluded that ZQQ had a disability, being dementia, which caused her to have impaired decision-making for important aspects of her life. The Tribunal's reasons record that all parties and witnesses to the proceedings who commented on the issue of ZQQ's cognitive capacity were of the view that she is unable to understand the effect of important decisions that she may need to make about her accommodation and access to others.
8. The Tribunal's reasons go on to explain at [77]-[82] why the decision was made to exercise the discretion provided in s 14(2) of the Guardianship Act to make a guardianship order for ZQQ: [77] When considering making an order, we must have regard to [ZQQ]'s views, if we were able to obtain them. Of course, we also take into account the views of each of her children who participated in the hearing, some of whom may have met the description of carer for [ZQQ]. We were also required to consider the importance of preserving [ZQQ]'s existing family relationships and particular cultural and linguistic environments as well as the practicability of services being provided to her without the need for an order: s 14(2) of the Guardianship Act. [78] These matters are in no particular order and each must be considered. Where there are different or competing issues to be considered, we undertake a balancing exercise in our consideration of these matters. Of course, we also consider any other relevant evidence, guided by the principles that are set out in s 4 of the Guardianship Act. Where relevant evidence of particular weight about these issues was available to us, or where different factors needed to be balanced, it is referred to below. [79] Given that [ZQQ] felt that she made her own decisions she did comment on whether we should appoint a guardian. [80] It was apparent that a decision needs to be made about whether [ZQQ] moves to live with [ZQS] and whether and the terms on which other members of her family may visit her. This second decision making function will become particularly relevant if [ZQQ] moves to [ZQS]' home, as it would be [ZQS] who would have authority to determine who could, or could not, access her property. [81] There was no apparent need for a guardian to have decision making authority in other areas for [ZQQ] at this time, even though the appointment of a guardian will suspend all of the functions she gave under the enduring guardianship appointment. She is said to be in good health and has several people available to act as her person responsible. Many members of her family also wish to live with her and provide her with any services she may require. [82] We decided on the basis of this evidence that a guardianship order should be made and that an appointed guardian should have decision making functions in the areas of accommodation and access.
9. The remainder of the reasons in relation to guardianship then discuss why the Tribunal refused the request by ZQS and ZQR, separately, to be appointed as ZQQ's guardian, and why the Tribunal ultimately appointed the Public Guardian as ZQQ's guardian.

Notice of Appeal

1. The Notice of Appeal indicated the orders being challenged were the guardianship order and the financial management order. As to the orders we should make on the appeal, the Notice of Appeal simply recorded as follows: *medical *guardianship *enduring power of attorney *access orders
2. The appellant indicated on the Notice of Appeal that she was also seeking to appeal on grounds requiring leave, and provided the following reasons as to why leave should be granted: *not all evidence present or considered at the hearing *not all options considered regarding power of attorney/guardianship *some decisions that have been made by the guardians since being appointed
3. Whilst on an incorrect section of the Notice of Appeal, we took the following comments to relate to the appellant's request for leave to appeal: Evidence supplied was not all before the Tribunal despite being sent through months prior. Medical evidence was not taken into the consideration when making orders. Further evidence was not asked for and should have been and documents before the Tribunal were not even looked at. Phone calls were not returned, mass miscommunication and was very poorly conducted. … What evidence did you give at the hearing? What documents did you show the Tribunal? 2 AVO documents that were supplied multiple times were not before the tribunal at the time character references other documents supplied by the other party were not supplied to the other parties involved. Also documents that were prior to the diagnoses of my mother's illness (bank statements) held more weight when it wasn't during the period in question.
4. As to the grounds of appeal, on the Notice of Appeal there is simply a reference to "please see attached". The attached document is stated to be authored, not by the appellant, but by one of the appellant's brothers, EEG, who was not a party to the proceedings below or to this appeal. Much of the contents of this attachment is irrelevant to the appeal as it refers to events that were alleged to have occurred subsequent to the hearing, but those sections that are of relevance are reproduced below: I am writing this letter as I believe the decision was made because there was accusations of money taken from my mother's account unlawfully to which no further evidence or receipts where asked for or proven and also not true, there was also conflict between my other siblings to which I remained neutral and as the guardian [MZH] said on more than one occasion there was no accusations by any of my siblings against me. There was evidence like apprehended violence orders, doctor's diagnosis of my mother's condition etc and other options that needed to be looked at and considered before the decision was made to place my mother's estate into the care of the NSW Trustee and Guardian. ……….. I believe that my mother's estate and care would better be managed by a family member such as myself as I know all about her condition and her needs and she would be more comfortable with that rather than having complete strangers making the wrong decisions regarding her health and wellbeing because I just want my mother to be able to spend the remaining time she has left as peaceful and stress free as possible because that's what she deserves.

The Grounds of Appeal and the submissions in support

1. Given the appellant was not legally represented, we endeavoured to assist her to articulate her grounds of appeal (see Neil v Nott [1994] HCA 23). This proved challenging, particularly given the appellant's advice to us that she did not have a copy of her Notice of Appeal in her possession.
2. The appellant advised that the outcome she sought from her appeal was that the guardianship and financial management orders made in relation to ZQQ be set aside and that ZQQ's affairs return to be decided through the enduring power of attorney and the instrument appointing enduring guardian. However, she submitted only she should be left appointed under these documents rather than herself, ZQR and ZQS jointly (as appointed by ZQQ).
3. As to how the Tribunal below was in error to justify the outcomes sought by the appellant, she emphasised aspects of her Notice of Appeal namely that the Tribunal either did not have before it, or failed to consider, documents she considered relevant. We understood these were documents primarily submitted in the proceedings by her sister ZQS. After some elaboration from the Appeal Panel as to the form her grounds of appeal might take, the appellant asserted that the Tribunal had not afforded the parties procedural fairness by failing to have before it, or failing to take account of, relevant evidence. She also asserted that the Tribunal had failed to take account of a relevant consideration.
4. In response to our request for identification of the particular evidence in question, the appellant drew our attention to the following evidence: 1. Copies of Apprehended Domestic Violence orders (AVOs) taken out against ZQT for the protection of the appellant, ZQQ and ZQS; 2. Documents described as rent certificates which it was asserted were in the possession of ZQT and would illustrate that ZQT's claim that he had been paying rent to live in the family home were false; and 3. Copy of a RTA registration transfer form relating to a Holden Commodore upon which the appellant alleged that ZQT signed fraudulently by purporting to sign the document as ZQQ.
5. In response to our enquiries as to how the asserted failings of the Tribunal in relation to the identified documents had impacted upon the ultimate orders that were made, the appellant said that these matters all went to the character of her brother ZQT, who was the applicant in both matters before the Tribunal, and therefore little weight should have been given to his applications.
6. The appellant also complained that the Tribunal focussed disproportionately on money that was provided by ZQQ to the appellant's sister, ZQS, at a time before the enduring power of attorney the subject of review was signed, being 4 March 2019. In her email statement submitted as part of the Appeal on 20 July 2020, the appellant stated as follows in relation to this issue: 3. The main focus was moneys (sic) that [ZQS] never had in her possession or touched, [ZQQ] rang ing (sic) and transferred that money (the calls are recorded so this can be verified) then money was withdrawn and put into a lawyers account for legal fees. [ZQQ] also withdrew this money from [a commercial bank] (there's cameras in the bank so this could be vairified (sic)) 4. My mother was still compotent (sic) and not cognitively impaired when this happened being 2017 and was in no way taken advantage of.
7. The appellant's sister, ZQS, said at the hearing that the moneys referred to above were to assist her with legal fees associated with proceedings in the Family Court of Australia.
8. ZQS supported the Appeal and the outcome sought by the appellant, that the appellant alone operate under the existing power of attorney and enduring guardianship appointment.

Replies to the Appeal and the Respondent's submissions

1. ZQR submitted in her reply to the Appeal that she supported the orders made by the Tribunal on 28 February 2020 and argued that an extension of time to appeal should be refused as there was "no sufficient reason".
2. ZQT also supported the orders remaining in place as they were in the best interests of ZQQ as outlined in his reply and written submissions dated 24 June 2020. In his reply to the Appeal ZQT submitted: If not all evidence was present, this is due to [ZQS], who was supported by [the appellant] not following orders and provide requested evidence on more than one occasion. [The appellant] had opportunity to provide evidence and did not despite actually being the holder of [ZQQ]'s passbook and being one of the appointed POA and Guardians. It was clear to all parties and the tribunal that there is to (sic) much family conflict and vendettas for any family member to carry the responsibility of being [ZQQ]'s POA and Guardian.
3. The Reply submitted by the Public Guardian indicated that the Tribunal's orders were supported due to there being entrenched conflict between ZQQ's children; however, no direct submissions were made as to the Appeal grounds.

Relevant legal principles

1. It is not in doubt that the Tribunal is bound to ensure hearings are conducted in a procedurally fair manner, in accordance with well-established principles of natural justice. This means the proceedings must be determined by a fair and impartial decision maker, and includes the requirement that a party to the proceedings has a reasonable opportunity to put his or her case, and to be heard at hearing. So much is clear from the authorities on this topic (see Kioa v West (1985) 159 CLR 550; [1985] HCA 81; Lucire v Health Care Complaints Commission [2011] NSWCA 99 at [61] per Basten JA).
2. The failure to take into account a relevant factor, or to give inappropriate weight to an irrelevant matter, must be considered within the limits of appellate interference in the making of a discretionary decision. This is well explained in House v King (1936) 55 CLR 499; [1936] HCA 40 as follows: The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so.

Consideration

1. We note at the outset that despite our efforts to assist the appellant within appropriate parameters, given she was unrepresented, the nature of the orders sought by the appellant and the matters upon which she directed our focus in support of her Appeal indicated to us that she largely misunderstood the nature of Appeal proceedings.

Orders sought on the Appeal

1. We have earlier in these reasons set out the orders we can make in determining this appeal under s 81 of the CAT Act. If we allow the appeal, then under s 81(1)(c) of the CAT Act, the orders made in the Tribunal below could be set aside. The effect of such an order would be to "revive" the Power of Attorney and Deed of Enduring Guardianship. We note that this would not result in the appellant being the sole decision maker as she seeks, but rather she would be a joint decision maker with ZQR and ZQS.
2. Although s 81(1)(d) empowers the appeal panel to quash or set aside the decision under appeal and "for another decision to be substituted for it", any order made must be consistent with the enabling legislation namely s 6K(1) of the Guardianship Act in respect of the guardianship order and s 36(4)(b) of the Powers of Attorney Act in respect of the Power of Attorney. In considering the former, there is no power to substitute a different enduring guardian. We note, however, that s 36(4)(b) of the Powers of Attorney Act enables a review Tribunal to appoint a substitute attorney for an attorney who has been removed from office.
3. We observe that, in the proceedings the subject of this appeal, the Tribunal determined that the proceedings to review the Power of Attorney should be treated as an application for a Financial Management Order because the Power of Attorney was being improperly exercised by ZQS alone. That course was not opposed by the parties. In these circumstances, and where on this appeal the orders sought by the appellant are opposed by ZQR, if we found merit in the appeal, it would not be appropriate on the evidence before us to exercise power under s 36(4)(b) of the Powers of Attorney Act but to remit the matter for rehearing before a differently constituted panel.

Asserted failure to take into account relevant information/lack of procedural fairness

1. Much of the appellant's focus was on the asserted failure of the Tribunal below to have before it or take into account documents which, in the appellant's view, brought into question the character of the applicant, her brother, ZQT.
2. We accept the documents may have had some relevance if ZQT's standing to bring the applications had been challenged in the Tribunal below on the basis of whether or not he had a genuine concern for the welfare of his mother to bring the application to review the enduring guardianship instrument (see s 6K(1)(b) of the Guardianship Act) or as an interested person to review the enduring power of attorney (see s 35(1) of the Powers of Attorney Act). However, it was not asserted to us that there was any challenge to ZQT's standing in the Tribunal below.
3. The asserted failure to have regard to the documents may have been of relevance if ZQT had been appointed as guardian or financial manager, but he was not. The Tribunal below rejected ZQT's application to be the financial manager.
4. We were unable, from the appellant's submissions, to accurately discern the gravamen of her argument about lack of procedural fairness. If her argument is that the Tribunal did not afford her procedural fairness because it did not make the orders she now seeks we reject that submission. The appellant did not seek such orders in the Tribunal below. Further the Tribunal's reasons, the accuracy of which are not subject to challenge, disclose at [46] that the appellant together with her other siblings agreed the Tribunal should proceed in the manner it did.
5. We observe that the appellant did not provide us with either a transcript or a sound recording of the hearing. Accordingly, the appellant has not established that the Tribunal below failed to make a proper assessment of her brother's character and therefore "gave too much weight to his applications".
6. The appellant's final complaint is that the Tribunal gave inappropriate weight to, or at the hearing focussed disproportionally on funds provided by ZQQ to the appellant's sister ZQS at a time before the enduring power of attorney was executed.
7. The Tribunal's reasons on this topic are found at [60]. At [61] the Tribunal below explained: [61] Secondly, [ZQS] had kept no records of her dealings with her mother's financial affairs, including as it related to her own borrowings from her mother when questioned was, initially, that she borrowed $10,000.00 from her mother in 2017 and paid it all back. She said the loan was repaid in instalments of about $350.00 per week, which finished in December 2019. When questioned by us she said she repaid the money, in cash, in regular instalments which she withdrew from her bank, but had kept no records or receipts. When we pointed out that this meant she had continued to fail to keep records even after she acknowledged that she was making financial decisions as attorney, her evidence changed. Her new position was that she had repaid the sum of $5,000.00 and that her mother had forgiven the balance of the loan. The timing of that apparent forgiveness of the balance of the debt was not clear from [ZQS]' evidence. This position indicates not only a potential conflict of interest, dealt with below, but also a lack of understanding of the important obligation on a substitute financial decision maker to keep an appropriate record of their actions. We were not satisfied that [ZQS] gave us honest and frank evidence on this issue, given the swift changes she made to her evidence when pressed about the inconsistencies in it, over a very short period of time. On this issue, at least, she displayed a lack of candour and honesty and appeared to be willing to say whatever promoted her interests as her position became more untenable when her evidence was tested. The true position in relation to the loan should be investigated by the appointed financial manager by seeking to examine [ZQS]' bank records for the corresponding weekly withdrawals. [ZQS] is not in a position to do so.
8. Again, we observe that the appellant does not assert error by the Tribunal in not appointing ZQS as financial manager for ZQQ. We find the Tribunal below did not place inappropriate weight on ZQS's actions, or lack of action. No error has been demonstrated in the Tribunal's findings at [60] that ZQS failed to comply with directions to produce financial records. It is relevant to note the Tribunal's finding at [48] that ZQS had been operating solely on the Power of Attorney "rather than on its terms which required joint decision making".
9. The appellant does not assert that the Tribunal's reasons at [60] which record that ZQS gave evidence that she could not locate or access the majority of the relevant records about her dealings with ZQS's financial affairs, are in error.
10. We are satisfied it was open to the Tribunal to take into account this evidence in the manner it did. We conclude that there is no merit in the appellant's position that the Tribunal erred by giving inappropriate weight to an irrelevant matter or failing to give appropriate weight to a relevant matter. As noted by the Public Guardian, the Tribunal below gave weight to a relevant matter namely the conflict between ZQS and ZQT. The Tribunal found ZQT could not bring an "open mind" to investigating any debt owed by ZQS to ZQQ and thus was not a suitable person to be appointed as financial manager (see [67]). Further, the Tribunal took into account that ZQT was named in a contested apprehended domestic violence order application made by ZQS.
11. It follows therefore, we find no merit in either of the appeal grounds agitated by the appellant.

Leave to appeal

1. The appeal disclosed none of the indicia referred to in Collins v Urban that would merit leave being granted to appeal and/or for us to conduct a rehearing.
2. The Tribunal's reasons for its decision make it clear that the correct legislative tests were applied and its analysis of the evidence and the reasons provide a more than adequate explanation for the Tribunal's decision.
3. Notwithstanding the due allowance that should be afforded a self-represented litigant in framing an appeal, we are satisfied, having read the reasons and the commentary provided by the appellant and having taken into account the Notice of Appeal, the documents relied upon in support of it and the submissions of the appellant, that the appellant's concerns do not disclose any viable ground of appeal for which leave should be granted.
4. Accordingly the appellant's application for leave to appeal is refused.

Extension of time to appeal

1. Given our conclusions that the Tribunal's decision discloses no appealable error, we are satisfied that the interests of justice do not dictate that we grant an extension of time to appeal.

ORDERS 1. The application for an extension of time to appeal is refused. 2. The application for leave to appeal is refused. 3. 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 November 2020