ZQV v ZQW & ORS

Factual Background

1. We now set out some of the relevant factual background to the appeal which appears to us to be uncontroversial.

Existing guardianship and attorney appointments

1. In June 2012, ZQW executed two separate enduring powers of attorney and enduring guardianship appointments. Under the first appointments ZQX was appointed as enduring guardian and attorney. Under the second, a ZRR was appointed as enduring guardian and attorney when ZQX was not able to fulfil those roles.

Events shortly prior to and subsequent to the Tribunal applications

1. Until late February 2020, ZQW lived alone in her home in Carramar, in Sydney's West.
2. In late February 2020, she was admitted to Liverpool Hospital with vertigo. On 9 March 2020 she was transferred to another hospital in Sydney's East for rehabilitation.
3. On 17 March 2020 she moved to a nursing home (the Nursing Home). She subsequently signed a contract in respect of her occupancy of that home and paid a Refundable Accommodation Deposit (RAD) of $550,000 in circumstances that were examined at the Tribunal hearing.
4. She left the Nursing Home on or about 27 April 2020 and went to stay with ZQY. She did so without completing any of the discharge formalities. ZQY picked her up from the nursing home in her car.
5. ZQW left the Nursing Home some 5 days after ZQV's financial management application was lodged in the Tribunal. At the same time, ZQV lodged an application for the appointment of a guardian.
6. At the Nursing Home, ZQW's treating doctor was Dr T. She received care from Nurse D. ZQW's grandaughter, the daughter of ZQV, held a senior position at the home.
7. On 23 April 2020, at Dr T's request, ZQW was seen by Dr V, a geriatrician.
8. Also, before the Tribunal was a letter from Dr T, as were results of various mental state examinations concerning ZQW.

ZQW's financial affairs

1. ZQW has financial assets of considerable value. According to a financial management summary prepared by ZRR on 5 May 2020, her assets consisted of: 1. 3 properties with a total value of $6.90m (Manly valued at $4.25m, Strathfield valued at $2m and the Carramar home valued at $0.65m). 2. Cash and term deposits-$1.16m. 3. Shares and managed funds-$75,000. 4. Personal effects-$50,000.
2. The properties in Manly and Strathfield were rented out and real estate agents were engaged to manage these leases.
3. There were total liabilities of about $20,000: at [27] of the Tribunal's reasons.
4. At the hearing in the Tribunal at first instance, it appeared to be largely uncontroversial that: 1. Up until relatively recently and for a considerable period, ZRR, who was a Chartered Accountant, provided regular financial advice and assistance to ZQW. However, ZQW had now stopped speaking to ZRR about her financial affairs and, on the day before the hearing, ZRR had received a letter from ZQW saying that she considered him to be a traitor. As a consequence, ZRR told the Tribunal he was withdrawing his nomination to be financial manager. 2. ZQY was, at the least, providing considerable assistance to ZQW in relation to her financial affairs. She was paying bills, including for insurance renewals, repairs and renovations to properties and medical expenses, and obtaining from ZQY cheque payments in reimbursement. ZQW was trusting ZQY's word as to costs before liabilities were incurred in relation to, at least, repairs and renovations, and as to the amount for which cheques needed to be signed. 3. In more recent times, cheque butts in respect of cheques signed by ZQW had been left blank. 4. Since the death of ZQW's sister in July 2019, ZQW's interest in her financial affairs had, at least, waned. In this context, both the properties at Strathfield and Carramar had required repair and renovation since that time and one or more of ZQW's children had been needed to ensure that decisions were made about such repairs and renovations and that the work was carried out.

Grounds of Appeal

1. There were 27 pages of grounds of appeal divided between error of law (denial of procedural fairness) and "merit issues". Leave to appeal was sought in relation to the latter.
2. As to the error of law category, contentions were made about the conduct of the hearing on 7 May 2020 (17 contentions), what was said to be the intervention of ZZ (another of ZQW's daughters, a former Member of the Tribunal and a senior executive in a Commonwealth body concerned with aged care), what were said to be breaches of the Tribunal's Members Code of Conduct (10 alleged breaches) and about the written reasons for decision (35 contentions).
3. A summary of the grounds of appeal concerning alleged error of law in relation to the conduct of the hearing is that there was a denial of procedural fairness because: 1. The telephone hearing was procedurally unfair because it was dysfunctional and disorganised, an assessment of ZQW could only be made from her voice and the Tribunal was deprived of hearing ZQW's actual evidence because she was repeatedly prompted and coached by ZQY (Ground 1). As we interpret the appellant's grounds of appeal document, other particulars of the contention that the hearing was dysfunctional and disorganised were that: 1. The hearing did not begin with the Tribunal confirming with the parties the evidence they had provided and were relying upon. Accordingly, the parties were still unaware which material the Tribunal had received as evidence. 2. The hearing was substantially devoted to locating documents, many of which the Tribunal had difficulty locating in the bundle of material provided to them. 3. The Members were confused at various times during the hearing as to which party was speaking. 4. There was difficulty in hearing the Members and understanding which Member was speaking. 1. The Tribunal proceeded without receiving important documents, namely notes summonsed from the Nursing Home (the Hall & Prior documents) and reports by ZRR of 29 April 2020 and 5 May 2020 (the ZRR reports), all of which had been sent to the Tribunal to be evidence in the proceedings (Ground 2). 2. The appellant was denied the opportunity to articulate all his concerns and make submissions about the reports from Dr T and Dr V, which, it is said, the Tribunal came to base their decision upon, and the appellant was not allowed to ask any questions of Nurse D and Dr T even though the appellant had been told that they were available to give evidence at the hearing (Ground 3) . 3. An excessive amount of time was given to ZQY at the hearing at the expense of other parties, including the appellant and ZQW (Ground 4). 4. ZQV was not given an opportunity to make submissions against the Tribunal's apparent change of mind after an exchange with ZQW in which the presiding member said to ZQW that she was reliant and vulnerable and called for nominations for a financial manager. He said the presiding member thereby created a legitimate expectation a financial manager would be appointed (Ground 5). (This was a matter that ZQV raised orally at the hearing of the appeal).
4. As to the issue concerning the "intervention" by ZZ, the appellant contended that there was procedural unfairness because the parties had not been informed of an email sent by ZZto the Tribunal on 6 May 2020. It was said that the email contained material which was highly adverse to the appellant (Ground 6).
5. In addition, the appellant contended there was apprehended bias because two of the Members (Senior Member Booby and General Member Johnston) had a previous long association with ZZ as members of NCAT, which they did not disclose, there had been a communication between the Tribunal and ZZ on the day of the hearing which had not been disclosed, and the above email from ZZ sent on 6 May 2020 had also not been disclosed (Ground 7).
6. The appellant also contended that the Members of the Tribunal contravened paragraphs 5, 11, 13, 14 and 22 of the NCAT Members Code of Conduct (Ground 8). Broad contentions were made to the effect, for example, that they did not ensure that the proceedings were just, their decision was fair, its processes were transparent and they failed to perform their duties independently, free from external influence.
7. In relation to alleged error of law concerning the written reasons, the grounds of appeal made contentions about many of the 90 paragraphs of the reasons.
8. As best as we are able to discern, the additional grounds of appeal based upon alleged error of law were: 1. The Tribunal had said in its reasons that the letter from Dr T had not been challenged during the hearing (at [24]), but this was contradicted by the reference in the reasons to ZQV saying there were factual errors in the letter, and the appellant had not been allowed to test the evidence of Dr T (Ground 9). 2. The Tribunal had erred by not taking account of the circumstances in which ZQW left the Nursing Home (Ground 10). 3. The Tribunal had misapplied the law concerning incapability to manage affairs by not considering the position concerning the reasonably foreseeable future (Ground 11). 4. The Tribunal had misapplied the law by focusing upon "capacity" rather than inability to manage affairs (Ground 12). 5. The Tribunal had erred by giving too much weight to the single-point in time tests administered by Dr T and Nurse D and by not recognising that there was a contradiction between these tests and the daily progress notes amongst the Hall & Prior documents (Ground 13). 6. The Tribunal had erred by misapplying the test concerning the presumption of undue influence (Ground 14).
9. As to the "merit issues" category, in respect of which the Notice of Appeal recognised that leave to appeal was required, the grounds of appeal set out 37 contentions, many of which repeated what had been set out when addressing what were said to be errors of law in paragraphs of the written reasons.
10. As to any additional grounds of appeal which emerge from these "merit issues", it may be that the appellant was seeking to contend that the decision was against the weight of the evidence by giving no or little weight to the matters set out in this section of the document concerning paragraphs 31, 67, 71, 73, 75, 76, 79, and 83 of the reasons (Ground 15). Otherwise, these points consisted of nothing more than contentions that a different factual conclusion ought to have been arrived at by a different weighing of the evidence.
11. Finally, the Notice of Appeal stated that leave to appeal was sought on the basis of new evidence that was not reasonably available at the hearing, namely three events or documents (Ground 16).

The Appeal right

1. The appellant has a right of appeal on a question of law: s 80 (2) (b) of the NCAT Act. Otherwise, leave to appeal is required: s 80 (2) (b).
2. The principles concerning the grant of such leave to appeal are to be found in Collins v Urban [2014] NSWCATAP 17 (at [82]-[84]). In Collins, the Appeal Panel at [84] stated that "ordinarily it will only be appropriate to grant leave to appeal in matters that involve: (a) issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; or (c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) the Tribunal having gone about the fact-finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed." (Citations omitted)

Guardianship Act proceedings

1. The application for a financial management order sought to invoke the power of the Tribunal to make such an order conferred by s 25E of the GA in respect of an application made pursuant to s 25I.
2. Such an order could only be made by the Tribunal in the circumstances specified in s 25G, which provides: 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.
3. Section 25I (2) prescribed that an application for a financial management order must specify the grounds on which it is claimed the person is "not capable of his or her own affairs".
4. Pursuant to s 25F of the GA subsequent applications for a financial management order may be made. This section provides: 25J Subsequent applications (1) A person may be the subject of an application under section 25I whether or not the person has previously been the subject of such an application. (2) The Tribunal may make a financial management order in respect of a person whose capability to manage his or her own affairs has previously been considered by the Tribunal even though there may have been no change in that capability since it was last considered by the Tribunal.
5. The Tribunal may determine its own procedure in relation to any matter for which the NCAT Act or procedural rules do not make provision: s 38 (1) of the NCAT Act.
6. Section 38 (2) provides that the Tribunal is not bound by the rules of evidence: … and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice.
7. Section 38 also provides: (4) The Tribunal is to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms. (5) The Tribunal is to take such measures as are reasonably practicable - (a) to ensure that the parties to the proceedings before it understand the nature of the proceedings, and (b) if requested to do so - to explain to the parties any aspect of the procedure of the Tribunal, or any decision or ruling made by the Tribunal, that relates to the proceedings, and (c) to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings. (6) The Tribunal - (a) is to ensure that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue in any proceedings, and (b) may require evidence or argument to be presented orally or in writing, and (c) in the case of a hearing - may require the presentation of the respective cases of the parties before it to be limited to the periods of time that it determines are reasonably necessary for the fair and adequate presentation of the cases.
8. In determining the application, the Tribunal was required to give effect to the guiding principle "to facilitate the just, quick and cheap resolution of the real issues in the proceedings": s 36 (1) and (2) of the NCAT Act.
9. The NCAT Fact Sheet concerning hearings in the Guardianship Division published on the Tribunal's website includes the following statements: 1. Hearings are conducted with as little formality as possible. 2. It is essential that the person the subject of the application has the opportunity to participate in the hearing as fully as possible. Sometimes this will be done in private, without any parties or witnesses being present. 3. It is important all relevant documents are submitted as soon as possible, at least 7 working days before the hearing. Contact should be made with the Guardianship Division to discuss which documents are relevant and should be submitted. 4. Each hearing proceeds in its own way depending upon the needs of the person who the application is about. In general, that person will be asked their views about the application. 5. The parties will be given the opportunity to present their evidence and express their views about the application. NCAT will decide when it has the evidence it needs to make a decision.
10. With respect to persons who have disabilities, the Tribunal must observe the principles listed in s4 of the GA, namely: 4 General principles 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.
11. The NCAT Act reinforces this obligation: Clause 5(1) of sch 6 to that Act.

ZQV's application

1. ZQV's application lodged on 22 April 2020 specified advanced age as the reason he thought ZQW had a decision-making disability. The written evidence supplied about disability and capacity to manage her affairs (Section 1E) consisted of a My Aged Care assessment conducted on 16 March 2020 and an outline of ZQW's care requirements prepared by Nurse D from the Nursing Home.
2. No professional opinion as to ZQW's capability was provided by ZQV with the application or subsequently. (In this regard, we note that the guide at the back of the application form indicated that for a financial management order to be made the Tribunal will generally need a professional opinion about the person's capability to manage their financial affairs. That guide also stated that at the hearing the applicant would need to provide evidence to support the decision and that the Tribunal could consider evidence that was in writing or given orally).
3. Section 6A of the application form set out the grounds for asking for a financial manager of to be appointed, as follows: 1. ZQW had given notice that she would voluntarily leave the nursing home on 15 May 2020 and that whilst ZQW had significant financial capacity to pay for her own medical and accommodation care, whether these be provided in an aged care facility or in her home, ZQW did not understand her medical and personal care requirements and would not pay for these requirements. 2. ZQW believed that the RAD paid to the nursing home would not be refunded to her if she was to leave the facility.
4. The grounds that were spelt out at the hearing of the application were different to these grounds. Broadly, as is reflected in the Tribunal's written reasons, those grounds were that ZQW was now, largely, if not wholly, dependent upon ZQY to manage her financial affairs, was vulnerable to exploitation, particularly by ZQY, and was no longer capable of managing her affairs in a reasonably competent fashion.

The hearing

1. Before setting out an account of what transpired at the hearing, as we must do, we make these comments about the way the criticisms of the hearing were presented on appeal.
2. As we have already said, it is regrettable that we were not supplied with a full transcript of the hearing, bearing in mind the breadth of the criticisms that we have identified as Grounds 1 to 5 of the appeal. Nor were we supplied with anything other than very few specific references to parts of the sound recording.
3. One course we might have taken was to dismiss the criticisms which the appellant made of the hearing because they had not been supported by a transcript or by comprehensive references to parts of the sound recording.
4. At the hearing of the appeal, we raised the absence of a transcript, having regard to the direction for the hearing of the appeal, made on 14 July 2020, that the appellant lodge with the Tribunal and provide to the other parties, by 18 August 2020, not only a sound recording of the hearing at first instance, if what happened at the hearing was to be relied upon, but also "a typed copy of the relevant parts". There were also Notes (1) and (3) of the directions which stated: (1) If a party does not lodge with the Tribunal and provide to the other parties documents, sound recordings and submissions as directed above, that party may not be allowed to rely on those documents, sound recordings and submissions at the hearing of the appeal. … (3) If a party wishes to rely on a sound recording of a hearing, the party must identify for the Appeal Panel which parts of the sound recording are relied upon in their written submissions.
5. In view of these directions and the terms of the appellant's criticisms about the hearing, it was reasonable to expect that the appellant would have obtained and lodged on the appeal a full transcript of the hearing or, at the very least, a transcript of a substantial part of the hearing, along with written submissions giving specific references to the transcript.
6. However, we were told at the hearing of the appeal that the appellant, and those supporting the appeal, had not understood the direction about the provision of transcript in this way. In these circumstances, the parties were informed at the hearing of the appeal that the Appeal Panel would listen to the sound recording of the hearing.
7. Next, it is important to recognise that the hearing at first instance took place against the background, first, that a Notice of Listing of the hearing on 7 May 2020 at 10:45 had been given to a number of persons, including the parties. This Notice informed the recipients that in response to government health advice relating to Covid 19 all Guardianship Division hearings would be conducted by telephone or audio visual link.
8. An information sheet was provided with the Notice of Listing. The information sheet sent to the parties (but not the sheet sent to non-parties) stated that before the hearing you should receive a hearing report from the Tribunal which summarises what the case is about and lists the material the Tribunal has received from the parties. The information sheet went on to say that you should check the list and make sure you had all the documents, you should read through all the material that has been given about the case and prepare what, if anything, you want to say about it. The sheet also directed the reader to the Facts Sheets concerning procedures relevant to the Guardianship Division located on the NCAT website.
9. Secondly, as foreshadowed by the above information sheet, on 30 April 2020 the parties were sent a Hearing report. The Hearing Report contained a list of documents lodged for the hearing (in date order over the period from 22 April 2020 to 30 April 2020), including the person who had lodged the documents. The Hearing report said that reports from the nursing home were expected and would be forwarded to the Tribunal prior to the hearing. The report also contained an account of the views of ZQW that had been obtained from a private conversation between ZQW and a Tribunal Officer on 30 April 2020. This included an account of ZQW's response that she was "100% competent", and that she felt incredibly insulted by the implication that she could not make decisions.
10. Each of ZQV, ZRR, ZQX, ZQW and ZQY attended and participated in the hearing by telephone. ZQW and ZQY attended and participated through the same telephone number (on speaker phone) and sat next to each other during the hearing. ZQV, ZRR and ZQX attended and participated through the same telephone number (on speaker phone) and sat next to each other during the hearing. Each of the members of the Tribunal attended the hearing through separate telephone numbers.
11. For present purposes, what transpired at the hearing can be summarised as follows: 1. The presiding member outlined the questions that arose with respect to both appointment of a guardian and a financial manager, including the three questions that arise under s 25G of the GA. She also said that in the documents they had received it appeared there was developing conflict in the family, they did not want the hearing to make matters worse, their responsibility was to make a decision that was in the best interests of ZQW and asked that people take into account what was in her best interests and try to ensure that the hearing was not going to inflame any developing conflict. 2. The presiding member said that a number of late documents had come to them that morning and given that they commenced hearings at 9:30 am that day they had not had a chance to look at these and that if the parties feel there is anything in those documents that it is essential they have regard to then they would need to be taken to the document and be given an opportunity to look at it (at about 10:58 minutes into the hearing). 3. The presiding member noted that amongst the documents they had received were documents from Dr T and Dr V indicating that they believed ZQW was able to manage her affairs and said to ZQV that from the documents they had there was not strong evidence that suggested ZQW lacked ability to make her own lifestyle decisions or manage her own finances. ZQV was asked (at about 13:00) whether he wanted to provide any further evidence or refer to any of the material that had come in late that the Tribunal should have regard to. It was pointed out that, so far as the financial application was concerned, the first issue they were looking at was ability to manage financial affairs as a threshold issue and that if the Tribunal was not satisfied about that the Tribunal would not go any further. 4. ZQV said he would like to raise some issues about the reports from Dr T and Dr V and said that, in his view, Dr T's report did not reflect ZQW's living history. In making various points about this ZQV came to refer to notes summonsed from the Nursing Home that he had received last night (at about 16:02). The Tribunal intervened to say that they did not have those notes and that they would not look at them unless somebody wanted to put the notes to the Tribunal as evidence. ZQV said he wanted the Tribunal to take them into account in evidence and the Tribunal said this raised the question whether they could do that in the time available or whether they would have to adjourn the hearing (at about 17:14). The Tribunal then sought to locate the notes from amongst the documents they had received. It asked whether anyone had told the Registry that they wanted the Tribunal to consider the notes, because nothing is in evidence until somebody submits it into evidence (at about 18:55). ZQX came explain that the notes were only obtained by him yesterday (he had arranged the Summons to Hall & Prior) and they had been sent to the Tribunal in 3 emails yesterday as evidence to be relied upon. 5. There followed an unsuccessful search for the notes through the material the Tribunal members had received in which the Tribunal outlined the new documents they had received (at about 21:32 to 28:30). ZQV apologised for the late sending of the nursing home notes and said that from his perspective the notes were critical and that he would be wanting to talk about some of that material if possible (at about 28:59). 6. The presiding member said that the question arose whether they needed to adjourn the hearing and came to ask ZQV to explain the general category of information and why he thought the documents were critical (at about 32:12). ZQV replied first by saying that Nurse D would be able to talk to some of the information if that would be of help to try and avoid the adjournment if the Tribunal wished. He said that that the nursing home material was to deal with the reports from Dr V and Dr T and to indicate what he said were serious anomalies that he believed were in those reports compared to the information coming from the nursing home. He said he was in the Tribunal's hands, he was happy for the Tribunal to get Nurse D on the line and ask him some questions in relation to those documents (at about 33:37), but his concern was that as he had about 50 to 100 references in those documents that he wished to refer to he did not know whether that would be able to be achieved by doing it orally but he had very serious concerns about the reports from these doctors (at about 34:03). 7. In the discussion that followed, the presiding member said that assuming the reports of Dr T and Dr V were invalidated by all the evidence ZQV wanted to present about their reports, which reports could be characterised as indicating ZQW had capacity, at law everyone is presumed to have capacity, unless proved to the contrary, so they still needed evidence that ZQW lacked capacity (at about 35:32). The Tribunal said to ZQV that according to ZQV the nursing home notes were not evidence of lack of capacity, it was evidence to invalidate the reports of Dr V and Dr T, and ZQV was asked whether there was any other evidence of ZQW's incapacity (at 35:56). ZQV replied that there was substantial other evidence of incapacity. He said, according to his understanding of this field, he wanted to demonstrate that ZQW did not have what he called "executive capacity" and that his evidence would include a number of issues relating to executive capacity (at about 36:40). 8. The Tribunal then adjourned to consider what it treated as an application for an adjournment from ZQV (at about 37:49). (We assume the time on the recording of the hearing stopped at this point). 9. When the hearing resumed, the presiding member said they now had the documents (plainly, a reference to the Hall & Prior documents from the nursing home), they had had a very quick look at them, the Tribunal would proceed with the hearing, which would have to finish by 1:30 p.m. The presiding member then indicated that there was insufficient time to deal with both the guardianship and financial management applications and the Tribunal needed to decide which one to proceed with. After ZQV said he thought the financial management application was the more urgent, the Tribunal decided to proceed to deal with the financial management application and adjourn the guardianship application. 10. The Tribunal then embarked upon the continued hearing of the financial management application.It began by saying (again) that the very first question it had to consider was whether ZQW can manage her own financial affairs (at about 43:39). 11. ZQY said that ZQW wanted to say something. As a result, ZQW said that she could manage her finances extremely well without any help from anyone (at about 43:50). ZQY started to give an account of what ZQW's understand was about managing her financial affairs. She was stopped from doing so by the Tribunal (at about 44:47). 12. The presiding member then asked ZQV what evidence he wanted the Tribunal to take into account that suggests ZQW cannot manage her affairs (at about 44:54). ZQV's response was to draw the Tribunal's attention to the report from ZRR which he said had been submitted on 29 April 2020. 13. After a search by the Tribunal for this document amongst the documents listed in the hearing report (the parties confirmed that they had received the hearing report (at about 48:55), the Tribunal said it had the email which said it attached the report but it did not have the report attached (at about 55:44). The presiding member then said that she really thought they were going to have to adjourn the hearing, and ZQV said he thought the document was critical (at about 56:18). After a further search and some remarks from ZQY (including that she was at a loss to understand why ZRR could not give his views orally) the Tribunal said it preferred to have the evidence in at least a week before the hearing, be across the material and then ask questions, ZRR's evidence was important, said again that it thought they were going to have to adjourn and what they would do was provide future dates by which material to be relied upon by the parties, including submissions in reply was to be provided to the Tribunal and to the other parties (at about 59:20). ZQY said that would be great because she could set out in writing matters where she was in strong disagreement with assertions about financial management that were being made. 14. In response to this, ZQV said that he thought the financial management application was a matter of urgency, and if the hearing could not be resumed within the next couple of days it was his preference that the evidence be given orally, albeit he recognised it made the Tribunal's job more difficult (at about 1:00.59). ZQY said she was concerned that ZQV wanted to stop ZQW reimbursing her amounts totalling about $13,000 for renovations to the Carramar bathroom and for insurances she had paid for ZQW. In response, ZQV said he would like to pass over to ZRR, if the Tribunal would allow it, but as to urgency the bigger issue was that a bank cheque, in ZQW's name, refunding the RAD would be issued by the Nursing Home on Monday and the security of that cheque could not be assured (at about 1:03:03). 15. The Tribunal decided to proceed with the hearing of the financial management application, which it did, first by hearing from ZRR for about 12 minutes (commencing at about 1:04:02). The hearing continued for about another hour with the Tribunal hearing in sequence from ZRR, ZQW, ZQY, ZQV, ZQX, and ZRR (very briefly). 16. ZRR said his main concerns about ZQW were a loss of short term memory, possible exploitation by family and other members, being very vulnerable, no critical thinking in relation to her financial affairs, and complete relinquishment of all financial decision making to ZQY. He provided five matters as examples of these problems and talked about aspects of each of these. The first example concerned renovation work that needed to be done at the Strathfield property which he said had been a "schemozzle". The second example concerned the appointment of Raine & Horne as managing agents of the Strathfield property at a fee of 5% instead of another agent at a fee of 3%. The third example concerned the RAD and contract with the Nursing Home. The fourth example concerned the renovations at ZQW's Carramar home. The fifth example concerned a cheque drawn in favour of ZQY by ZQW for $1400.00, whilst at the hospital in Sydney's East, without ZQW looking at any invoices. 17. On a number of occasions during the course of ZRR's account, ZQY made short interruptions to dispute what ZRR was saying. The presiding member prevented her from doing so at any length and directed ZRR to complete what he was saying. 18. At the end of giving the fifth example, ZQW asked to say something and the presiding member said the Tribunal would now hear from ZQW. It proceeded to do so for about 20 minutes (commencing at about 1:16:30). At the start of this step, ZQY asked to say something and the presiding member said she could not because they wanted to hear from ZQW. 19. The presiding member then proceeded to raise with ZQW each of the matters concerning her ability to manage her affairs that had been raised by ZRR, commencing with the Strathfield property renovations. Near the commencement of this issue, ZQY interrupted twice, including to correct an answer from ZQW that Raine & Horne had done the floors, to which ZQY said Raine & Horne had sent their workers. The presiding member told ZQY not to interrupt and ZQY apologised (at about 1:17:44). 20. ZQW gave figures in answers to questions from the presiding member about the costs of the Strathfield renovations. She explained with some precision the choice of Raine & Horne as managing agents. 21. ZQW gave a quite detailed account, in firm terms, about the RAD and contract with the Nursing Home (commencing at about 1:22:48), including why she went there, the amount of the daily fee, and the pressure she came under from ZQV's daughter about this.. 22. ZQW gave responses about the renovations at the Carramar home and the cheque written for $1400.00. This included that she trusted ZQY implicitly. ZQY corrected ZQW about what the $1400.00 cheque was for (at about 1:28:49) and spoke about how she pays ZQW's bills and is reimbursed and how she approached the renovation at Carramar. 23. ZQW, in response to a question from the presiding member, then spoke about why she was now asking ZQY to manage her affairs when she had appointments of ZQX and ZRR as attorneys (commencing about 1:31:03). She recounted what she said was a bad experience with ZQX in 2017 in paying him $45,000.00 from the sale of one of her properties. As to ZRR, she was concerned he may have been in collusion with ZQX because he had not objected to the $45,000.00 payment. 24. The presiding member then raised with ZQW that the Tribunal needs to think about whether she can manage her own money, to which ZQW responded that she absolutely could (at 1:34:42). The presiding member then raised with ZQW a number of concerns she had arising from what ZQW had been saying (commencing at about 1:34:42). She indicated concern about the payment of the $45,000.00 she had made to ZQX and what might happen if anyone else came along and asked for money. She indicated concern that ZQW was a bit reliant on the help of others and a little bit vulnerable (at about 1:36:12). ZQW said she would never pay out an amount without passing it by ZQY because she thought ZQY was very smart and very honest. When asked whether she thought she needed advice and assistance she sought from ZQY, ZQW replied that she did not know whether she needed such help and said it depended on the circumstances (at about 1:37:06).She repeated that the only reason she paid overt the RAD was because of the pressure she felt under from ZQV's daughter but she had been assured that she would get the money back if she left the nursing home. 25. Next, the Tribunal heard from ZQY (for about 8 minutes). During the course of this, ZQY mentioned that ZQW had called her last Sunday and asked her to collect her from the nursing home because she wanted to leave (at about 1:44:26). ZQW said she wanted to say something and proceeded to say why she wanted to leave the nursing home. 26. After hearing from ZQY, the presiding member said that they were going to have to stop and make a decision and asked ZQV if there was anything final from him as the applicant (at about 1:47:58). 27. ZQV made some points (commencing at about 1:47:00). He said the Strathfield property renovation had been chaos. He referred to the RAD and Carramar issues. He summarised his position about inability to manage her affairs, to which ZQW interrupted that he was a liar. 28. ZQV was then asked by the presiding member whether that was all from ZQV and he said it was (at about 1:49:30) but mentioned that ZQX could provide a short view about the Strathfield property issues. ZQY commenced to say some things in response but was interrupted by the presiding member who said they would hear from ZQX. 29. The Tribunal then heard from ZQX (commencing about 1:50:02) and did so for about 5 minutes. He spoke about Strathfield, his concern about the absence of legal review of the nursing home contract before it was signed, the unorderly way in which renovations are managed with absence of quotes and his concern about the numerous blank cheque butts in ZQW's cheque book. ZQY made some brief responses, including that she had only heard last week for the first time about the $45,000.00 payment to ZQX. 30. After hearing some brief further comments from ZRR (at about 1:55:29), the presiding member raised the issue about who would wish to be appointed the financial manager if the Tribunal was to make a financial management order [our emphasis]. ZQV gave reasons why he should be appointed and said that if he was not appropriate it should be the NSW Trustee and Guardian. ZQY said she would like to be appointed and outlined reasons why that should be the case. 31. After some remarks from others, including ZRR and ZQW, the Tribunal adjourned to consider its decision (at about 2:11:25).
12. Upon resumption the Tribunal gave its decision. Short oral reasons were given. The Tribunal said that written reasons would follow. Directions were made for the hearing of the adjourned guardianship application, which required the provision of any further documentary material and submissions in reply.

The Tribunal's written reasons

1. Near the start of the Tribunal's written reasons it addressed issues about obtaining access to and locating documents that were sought to be relied upon: at [8]-[11].
2. With respect to the financial management application, the Tribunal said (at [14]) that the questions to be considered were: 1. was ZQW incapable of managing her affairs? 2. Is there a need for another person to manage ZQW's affairs and is it in her best interest for a financial management order to be made? 3. If so, who should be appointed financial manager?
3. The Tribunal examined the first question in considerable detail.
4. Ultimately, it said: 88. Having reached the conclusions noted above, we were not satisfied on balance that the evidence is sufficient to conclude that [ZQW] is unable to manage her affairs. Nor are we satisfied that she is being unduly influenced by [ZQY] in the management of her affairs. 89. Having decided that [ZQW] is not unable to manage her own affairs, it was our view that there was no need for a financial management order and that to make such an order was not in the best interests of [ZQW].
5. The reasons indicate that these conclusions were arrived at in the following way.
6. The law concerning financial management capability was outlined (at [61] to [66]. This included reference to the passage in the judgement of Justice Lindsay in PB v BB [2013] NSWSC 1223 which said that of central significance was the functionality of management capacity, not the person's status as a person who may or may not lack "mental capacity" or the particular reasons for an incapacity (at [62]). The outline of the law also included the statement that the relevant time for considering whether a person was incapable of managing his or her affairs was not merely the day of the hearing but the reasonably foreseeable future (at [65]). The common law presumption of capacity was referred to (at [66]).
7. Having referred to the health and medical evidence earlier in its reasons, the Tribunal's ultimate approach to such evidence appears from [67] - [68] of the reasons.
8. The Tribunal said (at [67]) that it considered as a "preliminary matter": ….whether the health and medical advice established a basis for concluding that [ZQW] has a cognitive impairment that might suggest a lack of ability to manage her affairs.
9. We interpose here that the reference to this consideration as a "preliminary matter" appears to be consistent with the passage from the judgement of Justice Lindsay concerning the central significance of functionality of management capacity, rather than the status as a person who may or may not lack mental capacity.
10. After examining various sources of health and medical evidence the Tribunal concluded (at [68]): On the basis of the evidence and our conclusions recorded above, we are not satisfied that the evidence of the health and medical practitioners indicates that [ZQW] has a level of cognitive impairment that would provide a basis for concluding, without further evidence, that she is not able to manage financial routine affairs.
11. In arriving at the latter conclusion, the Tribunal: 1. Concluded that it placed little weight on the results of a Montreal Cognitive Assessment made whilst ZQW was at the hospital in Sydney's East, in which ZQW had scored 17/30, because around the time of the assessment it appeared that ZQW had a UTI that could have affected her score (at [67(1)(a)]). 2. Concluded that other assessment test results did not suggest that ZQW had other than a mild cognitive impairment, and taking into account the totality of the results from these assessment tests the Tribunal placed more weight on the results of the more recent assessments which suggested that, if at all, ZQW had only a mild impairment in her cognition (at [67 (1) (a) and (b)). 3. Referred to Dr T's opinion, assisted by a view he says was expressed by Dr V, to the effect that ZQW could make her own decisions. As to this opinion, the Tribunal commented that Dr T was in a position to make a clinical assessment of ZQW's presentation during her time at the Nursing Home and, implicitly, rejected the criticism that Dr T had taken into account erroneous information about ZQW's circumstances before her admission to the Nursing Home (at [67] (2) and (3)). 4. Concluded that the nursing notes from the Nursing Home, whilst they referred to some memory loss, confusion and resistance, did not evidence significant impairment, an assessment which the Tribunal said was supported by the evidence from Nurse D. The Tribunal expressed this conclusion in response to what it said were the assertions by ZQV and others that Dr T's view was inconsistent with these nursing notes (at [67 (4)]).
12. Earlier in the reasons, the Tribunal had referred to the evidence of health and medical practitioners (at [17]-[26]). When doing so it referred to Dr T's view that ZQW evidenced some mild cognitive decline but retained capacity to make her own decisions. As to this, the Tribunal said that Dr T's letter was "not challenged" during the hearing and that the Tribunal accepted the letter as an indication of Dr T's views (at [24]).
13. After setting out its conclusions about the health and medical evidence, the Tribunal turned to the particular circumstances concerning ZQW that had been raised at the hearing (at [69]-[79]). Earlier in the reasons the Tribunal had referred to these (at [30]-[56]. The topics concerned how she dealt with her cheque book, renovations at the Strathfield property, the contract and RAD in respect of the Nursing Home, work done at ZQW's Carramar home, a payment of $45,000 from ZQW to ZQX and concerns that ZQW was subject to the undue influence of ZQY.
14. First, the Tribunal said that it had not been provided with evidence that ZQW was unable to understand her overall financial affairs or that her real estate or investments were at risk due to a lack of understanding or by actions that placed them at risk (at [69]).
15. Secondly, it said there was no evidence of potential problematic dealings with ZQW's real estate other than concerning repairs to the Strathfield and Carramar properties (at [70]).
16. Thirdly, as to the repair work done on these properties, the Tribunal found that ZQW had an adequate understanding of the work that had been carried out, it was reasonable for her to have accepted assistance regarding oversight of such work, it was not unreasonable for her to have allowed ZQY to have primary oversight of the work at the Strathfield property, ZQW's explanation regarding the choice of real estate agent to manage the Strathfield property was coherent and reasonable, and ZQW had remained involved with the work done at the Carramar home and continued to make decisions about that work, whilst accepting assistance from ZQY. As to the potential need for future work at the Carramar property (a need that might arise from a review by an occupational therapist), the Tribunal was not able to conclude that ZQW or ZQY was opposed to further assessment or to acting upon any such assessment (at [71]).
17. Fourthly, the Tribunal concluded that ZQW had an adequate knowledge of the costs that she had reimbursed ZQY and she understood her general day-to-day financial circumstances (at [72]).
18. Fifthly, the Tribunal concluded that, whilst the payment of the RAD was a matter of some concern, particularly since ZQW had succumbed to pressure from her granddaughter to make the payment, the circumstances concerning this payment were unique and did not indicate that ZQW had a propensity to make large and unnecessary payments under pressure. Furthermore, the Tribunal accepted that it was reasonable for ZQW and ZQY to hold the view that the funds were not at risk because it was clear that the funds would be repaid to ZQW if she chose to leave the facility (at [73]). In this regard, the Tribunal rejected the assertion in the application that ZQW did not believe the RAD would be refunded (at [74]). It said that such a belief is unlikely given that the Nursing Home notes indicated she was intending to return home even at the time she agreed to pay the RAD.
19. Sixthly, the Tribunal considered that the fact that ZQW had not discussed with ZRR and ZQX where to place the RAD refund was understandable because the refund issue had arisen after the Tribunal applications had been made and ZQW was angry with them for making the applications. Her failure to seek their advice did not demonstrate a lack of ability to manage her affairs (at [75]).
20. Seventhly, the Tribunal addressed the issue of gifting money to her children. It said that there was no evidence upon which to conclude that funds had been gifted to ZQY. As to the gift of $45,000 to ZQX, the Tribunal concluded that the gift was not recent and did not indicate a present propensity to gift large sums of money (at [76]).
21. Eighthly, the Tribunal rejected the contention in the application that ZQW refused to pay for services necessary to assist her at home. The Tribunal referred to evidence that ZQW was spending funds on preparing her home for her return and ZQY had outlined a planned procurement of paid services (at [77])
22. Ultimately, the Tribunal expressed the following conclusions about the activities and decisions in relation to ZQW's financial affairs; 78 [ZQW] is of advanced age and is likely to have some mild cognitive impairment and her circumstances involve discord and distrust amongst some of her adult children. Under these circumstances there may be a number of motivations and catalysts for financial decisions that she has made and for recent preference for the advice and assistance of [ZQY] over her other highly qualified and undoubtedly efficient other adult children whose advice and assistance she has accepted in the past. In our view, the evidence indicates that in respect of her ability to manage her affairs this is a finely balanced decision. 79 We commence with a common law presumption of capacity. Looking at [ZQW's] affairs we find no evidence of actual loss to the estate or decisions that we find so unreasonable as to indicate lost capability. Further, we conclude that [ZQW's] dealings have been primarily in relation to her liquid assets that comprise a small part of her substantial estate and there has been no evidence of substantial risk to the greater part of her estate comprising real estate and invested funds. With regard to the evidence before us of [ZQW's] activities and decisions about her financial affairs, we are not satisfied that taken as a whole, the evidence establishes on balance that [ZQW] has been unable to deal with her affairs in a reasonable and rational way that protects her estate and provides for her financial future, or that she has relinquished decision-making about her estate or has exposed her estate to undue risk. We are not satisfied on balance that the totality of evidence indicates that she is unable to manage her affairs.
23. The Tribunal then dealt with the issue of undue influence of ZQY, which it described as a submission that ZQW could be subject to undue influence by ZQY and that ZQW had handed over responsibility for her affairs to ZQW. The Tribunal said that whilst it was satisfied, on balance, that in her own actions ZQW had not demonstrated an ability to manage her affairs, the Tribunal had examined as a separate matter whether she might be at risk of undue influence and resultant financial exploitation (at [80]).
24. The Tribunal set out what was said by Brereton J in Tulloch (deceased) v Braybon (No 2) [2010] NSWSC 650 at [51] concerning whether a special relationship of influence existed, from which undue influence will be presumed, outside those relationships where it is assumed a person is in a position to influence another (at [81]). That passage referred to the need to go beyond a relationship involving mere confidence and influence to one involving dominion or ascendancy by one over the will of the other. The passage also referred to the existence of such a special relationship of influence "where the relationship is such that one party is seen or supposed to be in some way beholden, obliged, or disadvantaged in relation to the other…"
25. Applying this test to the facts, including by reference to a plan for providing services to ZQW on her return to her home in Carramar and the Tribunal's conclusion that ZQW had the clear intention of returning to live there (at [84]), the Tribunal arrived at the following conclusion (at [85]): 85 We are of the view that the evidence establishes that recently [ZQW] has been more accepting of the assistance and advice of [ZQY] than that of her other adult children. However, at different times she has taken assistance and advice from other family members of her family. In our view whilst accepting the advice and assistance of [ZQY], [ZQW] has maintained an ongoing active involvement in her affairs and plans to live independently in the near future. We do not consider that the evidence establishes that the relationship between [ZQW] and [ZQY] can be characterised as one in which [ZQY] has "some element of authority or superiority" over [ZQW] or that [ZQW] is beholden, obliged, or disadvantaged in relation to [ZQY].
26. Accordingly, the Tribunal decided that this was not a situation where influence could be presumed and needed to be disproved (at [86]). Further, the Tribunal was of the view that ZQW had not yielded decision making to ZQY regarding her financial affairs or become dependent on ZQY to make those decisions and was not subject to undue influence such as would cause the Tribunal to consider her unable to manage her affairs (at [87]).
27. Earlier in the reasons, at various points the Tribunal had referred to ZQW's response to issues that had been raised. This included statements in her handwritten letters presented to the Tribunal that ZQY had not asked her for money, she had possession of her cheque book, she had written cheques to reimburse ZQY for expenses she has paid on ZQW's behalf, including for tradesmen at the Carramar home and insurance, she listened to the advice of all of her children about financial affairs, but makes up her own mind, she was angry that the applications had been made to NCAT and she had not written cheques since she was living at ZQY's home apart from $3500 to pay for work on the home at Carramar (she listed the work for which payment was made) (at [57]).

The parties' submissions on appeal

1. Accompanying the extensive grounds of appeal provided on 22 June 2020, were written submissions in favour of the financial management application (53 pages), along with attachments (192 pages for which there was a Schedule at page 54). These submissions took the form of a fresh submission for the making of a financial management order and they included reference to materials and events that had come into existence or occurred since the Tribunal's decision.
2. Three sets of further written submissions on the appeal were provided by ZQV. On 8 July 2020 a "Supplementary Submission" was provided which attached a number of documents which post-dated the Tribunal's decision, including Statutory Declarations from ZRR and ZQX dated 7 July 2020, an email from Ms ZY, one of ZQW's daughters, dated 17 June 2020 and correspondence from Matthews Dalton Lawyers. Next, there was a "[ZQV] (Appellant) submission dated August 2020 in response to directions for the hearing of the appeal made on 14 July 2020. These included reference to a number of events that had occurred, and documents that had been brought into existence, since the Tribunal's decision and also made reference to a few aspects of the sound recording of the hearing. Again, in large part, these submissions took the form of a fresh submission in favour of the financial management application. Finally, there were submissions provided on 14 September 2020 (29 pages) which included a response to ZQY's submission provided on 8 September 2020. Again, these made reference to a number of events that had occurred since the Tribunal's decision and attached 6 Statutory Declarations dated either 13 or 14 September 2020.
3. In support of the appeal we were also provided with a written submission from ZRR dated 21 August 2020. It supported ZQV's grounds of appeal and contents of the Notice of Appeal. It also took the form of a fresh submission for the making of a financial management order and provided illustrations why, according to ZRR, such an order needed to be made.
4. In opposition to the appeal we were supplied with the following written materials: 1. A submission, with attachments, from ZQW lodged on 9 July 2020. 2. A bundle of documents received by the Tribunal on 10 September 2020, including responses from ZQW dated 2, 16 and 28 August 2020 and 7 September 2020, along with various attachments. In large part, this material addressed events that had occurred since the Tribunal's decision. 3. A hand written submission from ZQW dated 18 September 2020 (along with a typed version), with attachments. 4. A submission from ZQY (one page) dated 18 September 2020.
5. We must, of course, focus upon the issues raised in the grounds of appeal based upon the materials that were put to the Tribunal, not upon new materials, unless and until we were to come to a decision that we should conduct a new hearing. Having said that, we do address below the appellant's contention based upon a few items of fresh evidence, as set out in the Notice of Appeal.
6. In his oral submissions on the appeal ZQV emphasised the following: 1. He said there was a failure to afford procedural fairness to him at the hearing because he was not given an opportunity to make submissions against the Tribunal's apparent change of mind after an exchange with ZQW in which the presiding member said to ZQW that she was reliant and vulnerable and called for nominations for a financial manager. He said the presiding member created a legitimate expectation a financial manager would be appointed. He referred, amongst other cases, to the decisions of the High Court in Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326 and in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 (Ground 5 above) . 2. More generally, he was not given a reasonable opportunity to be heard. In the first part of the hearing, about an hour was spent by the Tribunal locating documents that the parties had sent by email for the purpose of the hearing. Then, ZQY was given an inordinate time addressing the Tribunal. This gave little time to hear from both ZQW and himself. He referred to Italiano v Carbone & Ors [2005] NSWCA 177 (Ground 4 above). 3. The Tribunal erred by continuing with the proceedings in circumstances where various documents he wished to rely upon could not be located by the Tribunal. These were documents summonsed from Hall & Prior and the reports from ZRR of 29 April and 5 May 2020 (Ground 2 above). 4. The Tribunal made an error of law by failing to consider ZQW's position from the perspective of the reasonably foreseeable future. Factors that were important to such consideration were her failure to review the contract with the Nursing Home and her departure from that nursing home without completing any discharge documents (Ground 11 above). 5. The Tribunal made an error of law by focusing upon capacity rather than the language used in s 25 G of the GA (Ground 12 above). 6. The Tribunal made an error of law by failing to have regard to the law concerning undue influence or failing to apply it correctly, as set out in Johnson v Buttress (1936) 56 CLR 113 and in Lloyds v Bundy 1975. He submitted that a "clear case of undue influence has occurred ". He asserted that ZQW was now reliant on ZQY for accommodation and was now open to undue influence by her. He said that she was capable of making decisions about writing cheques up until 20 April 2020 but from that time relied on others for direction or assessment of expenses (Ground 14 above). 7. The Tribunal was biased because of the previous relationship between Members Booby and Johnson with ZZ, which was compounded by their failure to disclose the email from ZZ sent on 7 May 2020. Also, ZQY had referred to her work for the Department of Corrections where Member Booby also worked (Ground 7 above).
7. In oral submissions ZQX referred to the following: 1. He said that ZQW was incredibly vulnerable and she needed the independent assistance of a financial manager. At the time of the hearing, ZQY was in a position to exert undue influence over ZQW. ZQW was now renting a room in ZQY's home and he said that ZQY has nefarious motives. 2. He said that everybody was in agreement that ZQW was open to exploitation and the only real issue was who should be appointed as financial manager. 3. The Tribunal erred by proceeding without relevant material that the ZQV wished to rely upon, including the nursing notes, which the Tribunal had said they did not have.
8. When invited to speak at the appeal hearing ZQW said that she was perfectly capable of managing her own financial affairs. She said she did not want anyone managing her affairs.
9. ZQY said at the appeal hearing that she believed the hearing had been run very fairly. She said she had not meant to "coach" her mother and she believed that, by herself, her mother had given a very good account of her position.

Procedural Fairness

1. We begin with some observations about procedural fairness that are relevant to this matter.
2. There is no doubt that in making a decision the Tribunal must comply with the requirements of procedural fairness. The duty derives from the common law, and is reinforced by s 38(2) and (5) of the NCAT Act: ZPH v ZPI [2020] NSWCATAP 201; CKG v Public Guardian [2014] NSWCATAP 32; Kline v NSW Land and Housing Corporation [2014] NSWCATAP 41.
3. The concern of procedural fairness is to "avoid practical injustice": per Gleeson CJ in Lam at [37]. In that case, Gleeson CJ concluded that there was no denial of procedural fairness where "no practical injustice had been shown": at [38]. The absence of practical injustice in Lam lay in the fact that "the applicant lost no opportunity to advance his case": at [38]; see per Gageler and Gordon JJ in WZARH at [57].
4. Denial of procedural fairness can occur where the conduct of the decision-maker can be demonstrated to have misled a person in refraining from taking up an opportunity to be heard that was available to the person in accordance with the applicable procedure: per Gageler and Gordon JJ in WZARH at [59].
5. The true enquiry is as to what was required in order to ensure that the decision was made fairly in the circumstances, not whether the complainant had a legitimate expectation to be treated in some way: per Kiefel, Bell and Keane JJ in WZARH at [30] and per Gageler and Gordon JJ [61].
6. As was said by Gleeson CJ in Lam at [34]: ….In a context such as the present, where there is already an obligation to extend procedural fairness, the creation of an expectation may bear upon the practical content of that obligation. But it does not supplant the obligation. The ultimate question remains whether there has been unfairness; not whether an expectation has been disappointed.
7. Where the procedure adopted by a decision-maker can be shown itself to have failed to afford a fair opportunity to be heard, a denial of procedural fairness is established by nothing more than that failure, unless it can be shown that the failure did not deprive the person of the possibility of a successful outcome: per Gageler and Gordon JJ in WZARH at [63]; Stead v State Government Insurance Commission [1986] HCA 54; 161 CLR 141.
8. We now turn to each of the grounds of the appeal as we have identified them.

Ground 1

1. As to Ground 1 of the appeal, we draw the following conclusions from what transpired at the hearing, as revealed by the sound recording, and our account of the hearing that we have set out above: 1. The hearing followed a logical and structured path designed to elicit the real issues arising in the financial management application and arrive at a fair determination that was in the best interests of ZQW, in the face of a strong conflict in the family about what had occurred and should occur. 2. The Tribunal was firm in setting about obtaining ZQW's uninterrupted views and responses to issues and was able to obtain reasonably direct, clear and detailed answers from ZQW. 3. No party suggested there was any coaching or repeated prompting associated with ZQW's evidence and we discern no support for that suggestion. 4. No party suggested that there was any unfairness arising because it was a telephone hearing only. No party suggested that they could not hear what was being said. The sound recording of the hearing does not suggest that there was any real difficulty in hearing what anybody was saying. On occasions, clarification was sought and provided as to who was speaking. Throughout the hearing, it was very clear that it was the presiding member who did, virtually, all of the talking, so far as the Tribunal was concerned. 5. ZQY was not given an unreasonable amount of time to address the Tribunal at the expense of the other parties. 6. No party was told by the Tribunal that they could not address the Tribunal on a matter that he or she said they wanted an opportunity to speak about. 7. ZQV, ZRR and ZQX presented as articulate parties who were confident and assured in addressing the Tribunal and well capable of trying to ensure that the Tribunal provided them with the chance to say what they wished. In this regard, we have already mentioned that ZQX is a lawyer and ZRR is a chartered accountant. Both were present with ZQV throughout the hearing. It also emerged (at the point when the Tribunal raised the issue as to who might be appointed the financial manager) that ZQV was an experienced businessman. 8. As revealed by the time references in our account of the hearing, it is incorrect to say that the hearing was substantially devoted to locating documents. 9. It became sufficiently clear what documentary material the Tribunal had before it for consideration. In the first place, there were the documents listed in the Hearing report sent to the parties before the hearing (a report that the parties acknowledged having received), supplemented by 122 pages of documents summonsed from the hospital in Sydney's East, a letter from Dr T adding words to his report, an email from ZQY about printing material out, and, finally, the Hall & Prior documents. In the course of identifying the supplementary material, it was apparent that there were a number of emails to the Tribunal duplicating some of this material.
2. For these reasons, we reject Ground 1 of the appeal.

Ground 2

1. As to Ground 2 of the appeal, the Tribunal did not proceed to determine the matter without receiving the Hall & Prior documents. These were located after an adjournment. The parties had the opportunity to refer to these documents, and the Tribunal had made it clear that they would need to be taken to any aspects of the late received documents that were sought to be relied upon. The written reasons include reference to aspects of these documents.
2. The Tribunal did proceed to determine the matter without receiving the ZRR reports. However, in our opinion, there was no denial of procedural fairness to the appellant in doing so. This was because the appellant, in substance, rejected the opportunity to adjourn the hearing so that these documents could be located and presented to the Tribunal. At its own initiative, the Tribunal made it clear that it thought it should adjourn in order to obtain these documents. It was persuaded not to do so by the appellant's contention of urgency and his preference, in the face of such urgency, for the material the subject of the reports to be presented orally to the Tribunal.
3. The appellant was given the opportunity to rely upon these reports but he chose not to do so. There was nothing in the circumstances to indicate that the Tribunal should have sought to persuade him from the course he wished to take, and the appellant does not suggest otherwise.
4. For these reasons, we reject Ground 2 of the appeal.

Ground 3

1. There are two aspects to Ground 3 of the appeal. First, that ZQV was denied the opportunity to articulate his concerns about the reports from Dr T and Dr V. Secondly, that he was not allowed to question Dr T and Nurse D.
2. We do not agree with either of these contentions.
3. As to the first, in the context of the Tribunal's attempt to locate the Hall & Prior documents, ZQV made it clear that he took issue with the opinions of Dr T and Dr V. In doing so, he made some reference to the specific grounds for his concern that there were "serious anomalies" in their reports. He also made it clear that he had a large number of references in the Hall & Prior documents that he would like to refer to in order to substantiate his contention. He never came to tell the Tribunal what these references were or show them to the Tribunal once the Hall & Prior documents were located, or otherwise expand upon the concerns he had with the opinions from these doctors.
4. The Tribunal never prevented him from presenting these additional matters and ZQV does not explain how he was denied the opportunity of doing so.
5. Furthermore, in the course of the discussion about the importance of the Hall & Prior documents (in the context of the Tribunal considering, at its own initiative, an adjournment because it had not, at that point, located them) the Tribunal directed ZQV's attention to the presumption of capacity and the question whether there was any evidence of ZQW's lack of capacity assuming the opinions from the doctors were to be "invalidated", that is, disregarded or given no weight. Later on in the hearing, the Tribunal invited ZQV to present the material he had to support the allegation of incapacity. Not far from the end of the hearing, ZQV was asked whether there was anything further he wished to present.
6. From these matters, at least, it should have been clear to ZQV that a central issue for the Tribunal was the need for proof to overcome the presumption of capacity.
7. In these circumstances, it ought to have been clear to ZQV (and to ZRR and ZQW) that if there was any material in the Hall & Prior documents showing incapacity and, thereby, contradicting the opinions of the doctors then it ought to be shown to the Tribunal. However, no such material was referred to by the appellant.
8. We note also that ZQV appears to have been conscious that presenting detailed references from the Hall & Prior documents could lead to an adjournment of the hearing: see paragraph 64 (6).
9. As to the second aspect of Ground 3, ZQV did not tell the Tribunal that he wished to ask Dr T and Nurse D some questions, or that he was expecting them to be at the hearing so that he could do so. At one point, ZQV did raise with the Tribunal the possibility that it might call Nurse D to take some evidence from him about the information revealed by the Hall & Prior documents. However, this was only presented by ZQV as a somewhat tentative suggestion of a course that the Tribunal might take as a way of proceeding in the absence of the Hall & Prior documents. Ultimately, of course, these documents were located. As was pointed out by the Appeal Panel in ZCA v NSW Trustee and Guardian [2016] NSWCATAP 192, formal cross-examination in guardianship hearings is rare. In that case, the Appeal Panel said: "The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice": NCAT Act, s 38(1). The Tribunal is also "to act with as little formality as the circumstances of the case permit … ": NCAT Act, s 38(4). We understand the practice in the Guardianship Division of the Tribunal to be that parties are not sworn or affirmed and evidence is given in response to questions from the Tribunal. Formal cross-examination is rare and did not occur in these proceedings. The fact that the appellant was not offered the opportunity to cross-examine any of the witnesses does not necessarily mean that she was denied procedural fairness….
10. In our opinion, ZQV was given a reasonable opportunity to present his criticisms of the medical and health evidence.
11. For these reasons, we reject Ground 3 of the appeal.

Ground 4

1. As to Ground 4, we have already said that this is not borne out by what transpired at the hearing. Accordingly, we reject Ground 4 of the appeal.

Ground 5

1. As to Ground 5, ZQV's outline as to what occurred at the hearing is inaccurate. In the first place, ZQV was given a full opportunity to say what he wished in support of the contention that ZQW was not capable of managing her financial affairs before the Tribunal raised various concerns with ZQW. Secondly, the Tribunal did not say to ZQW that she was reliant and vulnerable. Instead, the Tribunal raised these as concerns put to ZQW for her response. Thirdly, the Tribunal did not raise the question as to who might be financial manager until near the end of the hearing and quite some period after it had raised these concerns with ZQW. Finally, the Tribunal introduced the question as to who might be the financial manager on the basis that the issue would arise if the Tribunal was to conclude that ZQW was not capable of managing her affairs. The Tribunal did not indicate that it had arrived at any final view as to whether or not ZQW was capable of managing her affairs, let alone even a preliminary view.
2. In these circumstances, in our opinion, there was no conduct by the Tribunal that required it to provide a further opportunity to hear from ZQV with a view to attempting to persuade the Tribunal against the dismissal of the application for a financial management order.
3. For these reasons, we reject Ground 5 of the appeal.

Grounds 6 and 7

1. On 6 May 2020 at 8:25 am, ZZ sent an email to the Guardianship Division in the following terms: Dear Ms Farley, My name is [ZZ]. I am the [a senior position in a Commonwealth body concerned with aged care was specified]. [ZQW] is my mother. I have a declared conflict of interest in relation to the aged care services that my mother has used or will use and I will not comment on them or any evidence relating to them. I have read two medical reports that advise that my mother has capacity and I have no reason to doubt these reports. My mother can and should make decisions about her life and her accommodation arrangements. In terms of her well-being, I've observed that the fractured and dysfunctional relationship between my siblings over many years, particularly in the last 9 months, and have concerns that these dynamics may have a deleterious effect on [ZQW] and that there may be attempts to manipulate and unduly influence [ZQW] that she is not always able to resist. If a Tribunal member wishes to contact me in relation to tomorrow's hearing, my contact number is [a number was given].
2. The email came to the attention of ZQV after the hearing when it was included in the list of documents set out in the Hearing Report dated 22 May 2020 for the adjourned hearing of the guardianship application (adjourned on 7 May 2020 for hearing on 28 May 2020).
3. As to Ground 6 of the appeal, ZQV says in his grounds of appeal document, amongst other things: [ZZ] in her email to NCAT dated 6 May 2020, made various comments including those relating to the capacity and decision- making ability of the Respondent. This email contains material that is highly adverse to me as the Applicant. …. As the Applicant and other parties to the proceedings were not aware at any time prior to the Hearing and decision on 7 May 2020, the Applicant and other parties were all procedurally disadvantaged, this being another action which has removed procedural fairness and integrity from the NCAT decision making process. In view of the above, the decision handed down on 7 May 2020 is unsafe and should be vacated in the interests of procedural fairness.
4. ZZ was one of the persons who was sent the Notice of Listing of the hearing on 7 May 2020. (She was not a party and, accordingly, was not sent the Hearing Report and no party sought to call ZZ as a witness).
5. ZZ did not seek to give evidence at the hearing and in the email she did not request that her email be provided to the Tribunal as material to be considered at the hearing. That is not surprising given that the email contains only broad and somewhat vague assertions of no evidentiary value with respect to the questions arising on the guardianship and financial management applications.
6. The email was, of course, not one of the documents listed in the Hearing Report (which report pre-dated the email). It was not identified by the Tribunal as being amongst the supplementary material provided to them for the purpose of the hearing. There is no suggestion in the sound recording or written reasons of the Tribunal that the email was taken account of by the Tribunal in determining the matter.
7. In these circumstances, we do not see how there was any denial of procedural fairness by the Guardianship Division not disclosing ZZ's email to the parties before the Tribunal's determination of the application for a financial management order.
8. For these reasons, we reject Ground 6 of the appeal.
9. As to Ground 7, we do not agree that the non-disclosure of ZZ's email to the parties, either alone, or in combination with the fact that for a considerable period of time ZZ was a Member of the Tribunal when Senior Member Booby and Member Johnson were also Members of the Tribunal, satisfies the test for apprehended bias. (There was no evidentiary basis whatsoever for any claim of actual bias.)
10. That test is whether a fair-minded lay person, with knowledge of the matters relied upon by ZQV, might reasonably consider that the Tribunal, might not carry out its functions with an impartial and unprejudiced mind: Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48 at [11]-[13]; Ebner v The Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 at [6]; Michael Wilson & Partners Limited v Nicholls (2011) 244 CLR 427; [2011] HCA 48 at [31]. The test for apprehension of bias is objective.
11. The two categories of apprehended bias that appear, potentially, to arise for consideration are those occurring by "association" and "extraneous information": per Deane J in Webb v Green (1994) 181 CLR 41 at [72].
12. As to the "association" category, past shared membership of the Tribunal with a person concerned with the outcome of the proceedings, as a daughter of the subject person, without evidence of a much closer and, most likely, continuing association, could not cause a fair-minded layperson to reasonably consider that the Tribunal might not carry out its functions with an impartial and unprejudiced mind.
13. The non-disclosure of ZZ's email does not add to the claim of apprehended bias. First, there is no evidence that the email was seen by the Tribunal before the decision was made. Secondly, it contained nothing more than broad, unsupported opinions from ZZ, which, in our opinion, were not reasonably capable of being seen by a fair- minded observer as material that might influence the decision to be made by a Tribunal experienced in applying its mind to decision-making by reference to the material placed before it.
14. Finally, so far as the ZZ issues are concerned, ZQV asserted in his grounds for appeal document that "NCAT Panel Member/s contacted ZZ on the day of the hearing either before or during the course of the hearing in the absence of the other parties". His basis for this assertion was a text message that he said he received from ZZ at 5:21pm on 7 May 2020, after the hearing that day. ZQV says that in that text message ZZ said: "What was the outcome today. The Tribunal called me earlier but didn't call me back".
15. This does not establish that there was a call between ZZ and any of the members of the Tribunal for the hearing at first instance, let alone a call between such person(s) on the day of the hearing before or during the hearing. It is relevant to recall that ZZ's email of 6 May 2020 was directed to Ms Farley in the Registry of the Guardianship Division.
16. There was a faint suggestion from ZQV at the hearing of the appeal that the fact that ZQY and Senior Member Booby had, at one time, both been employees of the NSW Department of Corrections supported the claim of apprehended bias. We do not agree. No detail of any, potentially, relevant association between them was provided. When referring to this matter on the appeal, ZQV sought to support its relevance by asking, rhetorically, why ZQY had referred to her work at this department during the hearing at first instance. This was a matter ZQY made passing reference to when outlining her suitability to be appointed a financial manager. Again, this connection adds nothing to the claim of apprehended bias.
17. For these reasons, we reject Ground 7 of the appeal.

Ground 8

1. We reject Ground 8 of the appeal. This ground discloses no basis for a conclusion that there was appealable error.

Ground 9

1. As to Ground 9 of the appeal, we think it is clear enough that by the reference to "not challenged" (a reference to Dr T's letter) the Tribunal meant there was no challenge to the admissibility of Dr T's letter, rather than reflecting a misunderstanding that ZQV accepted Dr T's views about ZQW's capacity. It is clear from the sound recording that ZQV challenged the reliability of Dr T's views. That the Tribunal understood this appears from the Tribunal's subsequent references in the reasons to criticisms levelled at Dr T's views by ZQV, ZRR and ZQX: at [25] - [26].
2. We have already dealt with the contention that ZQV was not allowed to test the evidence of Dr T.
3. For this reason, we reject Ground 9 of the appeal.

Ground 10

1. As to Ground 10 of the appeal, at the hearing, no one referred to the circumstances surrounding ZQW's departure from the Nursing Home as a matter favouring the making of a financial management order, let alone that ZQW had been abducted from the home by ZQY.
2. For this reason, we reject Ground 10 of the appeal.

Ground 11

1. As to Ground 11 of the appeal, the Tribunal's reasons show that it took account of the need to consider the question of incapability from the perspective of the reasonably foreseeable future. That this is so, emerges from the specific reference to that factor when outlining the relevant law (see at [65]. It is also apparent from the Tribunal's consideration of the propensity of ZQW to act in a certain way (for example, at [76]).
2. ZQV said that incapability was illustrated by ZQW's failure to review, or have reviewed by a qualified person, the proposed contract for the Nursing Home. But, the Tribunal considered the circumstances surrounding this matter, including the payment of the RAD, and found it to be a unique situation.
3. On this topic, ZQV also relied upon ZQW's departure and alleged abduction from the Nursing Home, but, as we have already mentioned, such a matter was not referred to at the hearing.
4. For these reasons, we reject Ground 11 of the appeal.

Ground 12

1. As to Ground 12 of the appeal, we do not agree that the Tribunal strayed from the language of the statute and, in particular, the language of s 25G, in dismissing the application. The Tribunal, correctly, set out the questions to be considered under s 25G, including whether ZQW was "incapable" of managing her affairs: at [14]. When outlining the law, the Tribunal set out references concerning the meaning of such a requirement. In doing so, it is clear that the case law and the Tribunal used such language as "incapable", "capability", "able" and "capacity" interchangeably.
2. For these reasons, we reject Ground 12 of the appeal.

Ground 13

1. As to Ground 13 of the appeal, ZQV did not explain why he said there was a "contradiction" between daily progress notes amongst the Hall & Prior documents) and the single point in time tests.
2. On the other hand, the Tribunal did take account of aspects of the daily notes indicating that on a number of occasions ZQW evidenced memory impairment (at [22 (1)]). It also noted that it was Dr T's opinion that she evidenced some mild cognitive decline (at [24 (3)].
3. As to the significance of the health and medical information, including, but not limited to, the single point in time tests, it is relevant to note that the health and medical question that the Tribunal focused upon was whether the health and medical information indicated that ZQW had a cognitive impairment that might suggest a lack of ability to manage her affairs, and not whether it established that ZQW was capable of managing her affairs: at [67] and [68].
4. For these reasons, we reject Ground 13 of the appeal.

Ground 14

1. As to Ground 14 of the appeal, in large part, ZQV did not identify how it was said that the Tribunal made an error of law in respect of the application of the test of undue influence, as distinguished from a contention that the Tribunal reached the wrong conclusion, or a wrong conclusion on the evidence.
2. ZQV did not contend that the passage from the decision of Justice Brereton (as he then was) in Tulloch's case, which the Tribunal relied upon, itself contained error.
3. Instead, to a large extent, ZQV simply made contentions to the effect that the Tribunal had fallen into error by reaching, or not reaching, various factual conclusions concerning the circumstances and events that had been presented to the Tribunal. It was said that failing to conclude that the relationship between ZQW and ZQY was one in which there was "some element of authority or superiority "was not available on the evidence. It was said that the Tribunal fell into error by not concluding that ZQW had yielded her decision-making to ZQY. It was said that the Tribunal fell into error by not being satisfied that ZQW is subject to the undue influence of ZQY in the management of her affairs.
4. It was said that the required relationship of influence was illustrated by the alleged abduction of ZQW from the Nursing Home by ZQY. However, as we have already said, this was not a matter advanced at the hearing.
5. It was said that the Tribunal gave no weight to ZRR's evidence referred to in paragraph 44 of the reasons in concluding that it was satisfied that ZQW understands and has input into decisions about the Carramar renovations: at [83] of the reasons. In the first place, it was not contended that there was no evidence to support the Tribunal's conclusion-if that were the case, there would be an error of law. In any event, the Tribunal's finding was not inconsistent with ZRR's evidence which was to the effect that ZQW did not know the details about the program of work and was reliant on ZQY to manage the project.
6. For these reasons, we reject Ground 14 of the appeal.

Ground 15

1. As to Ground 15 of the appeal, ZQV requires leave to appeal.
2. We have already said that it seems to us that by the matters advanced ZQV may be seeking to contend that the decision was against the weight of the evidence.
3. In the first place, ZQV's contentions made no attempt to analyse the totality of the evidence upon the subject in hand.
4. Furthermore, ZQV's contentions did not address the circumstances that warrant the grant of leave to appeal, as outlined above from the decision in Collins v Urban (paragraph 37 above).
5. The matters put forward do not raise any questions of principle, or of public importance, or show an injustice which is reasonably clear, or some plain error that was central to the decision, or any of the other matters referred to in Collins.
6. For these reasons, we reject Ground 15 of the appeal.

Ground 16

1. As to ground 16 of the appeal (the fresh evidence ground), we fail to see how any of the three items of evidence referred to warrant the grant of leave to appeal.
2. As to the first item, which is described in the Notice of Appeal as "[ZQY] comments about treating the flea infestation with lavender oil", this is a reference to comments made by ZQY to ZQV in a telephone call on or about 27 February 2020 (referred to at pages 30-31 of ZQV's summary of his submission provided with the Notice of Appeal). It was evidence that was reasonably available to ZQV at the time of the hearing on 7 May 2020. Furthermore, we fail to see how such a comment is significant evidence concerning the making of a financial management order.
3. The second item of new evidence referred to is the NCAT Hearing report dated 22 May 2020. This appears to be a reference to ZZ's email sent on 6 May 2020, which was listed in that report. We have already addressed the insignificance of this document. Otherwise, we fail to see how the Hearing report warrants the grant of leave to appeal.
4. The third item of new evidence referred to is an email from ZQY dated 26 May 2020. This is one of the documents attached to ZQV's "Main Submission" document provided with the Notice of Appeal (at page 90). It is an email sent to ZQV, ZRR and ZQX. It refers to ZQY's travel business and that all 2020 trips have been suspended in accordance with government advice and that Job keeper has been activated.
5. We fail to see how this third item of new evidence is significant evidence concerning the making of a financial management order.
6. As pointed out above, much of the extensive material in the submissions from ZQV, ZQX and ZRR on the appeal was concerned with events that had occurred since the hearing on 7 May 2020. This material was not put forward as fresh evidence that would warrant the grant of leave to appeal. Rather, it was provided as new evidence for the purpose of any new hearing that the Appeal Panel might decide to conduct if it decided to allow the appeal.
7. Furthermore, it would be neither appropriate or efficient for the Appeal Panel to consider such new evidence on a new hearing, particularly, in circumstances where the GA makes provision for subsequent applications for a financial management order (s 25J).
8. For these reasons, we reject Ground 16 of the appeal.

Orders

1. For the above reasons, we make the following orders: 1. To the extent it was required, leave to appeal is refused. 2. The appeal is dismissed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 December 2020