ZTL v ZTM

NCAT Appeal Panel|2021-04-20

Introduction

This is an appeal under s 80(2) of the Civil and Administrative Tribunal Act 2013 (NSW) ("the NCAT Act") from a decision of the Guardianship Division of the NSW Civil and Administrative Tribunal (the Tribunal) made on 19 October 2020 in which the Tribunal dismissed an application for guardianship made by the brother of ZTM, and made a guardianship order for ZTM and appointed the Public Guardian as the guardian for a period of 12 months from 19 October 2020 to make decisions for ZTM to the extent necessary to carry out the following functions: 1. Accommodation: To decide where ZTM may reside 2. Health care: To decide what health care ZTM may receive 3. Medical/Dental consent: To make substitute decisions about proposed minor or major medical and dental treatment, where ZTM is not capable of giving a valid consent. 4. Services: To make decisions about services to be provided to ZTM.
The appellant in this matter is ZTL, the brother of ZTM.
The Appeal Panel has concluded that the appeal should be dismissed. As a result, the order made by the Tribunal on 19 October 2020 remains in force.

Publication of the names of the parties

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

Background and context of orders made at first instance

Statutory framework to decisions of the Tribunal

Section 36 Civil and Administrative Tribunal Act 2013 provides that: The "guiding principle" for this Act and the procedural rules, in their application to proceedings in the Tribunal, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings.
Section 38 Civil and Administrative Tribunal Act 2013 provides that: The Tribunal may determine its own procedure in relation to any matter for which this Act or the procedural rules do not otherwise make provision. 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.
Section 4 of the Guardianship Act 1987 provides that: 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.
Section 14 of the Guardianship Act 1987 deals with the making of a guardianship order and provides: 14 Tribunal may make guardianship orders (1) If, after conducting a hearing into any application made to it for a guardianship order in respect of a person, the Tribunal is satisfied that the person is a person in need of a guardian, it may make a guardianship order in respect of the person. (2) In considering whether or not to make a guardianship order in respect of a person, the Tribunal shall have regard to: (a) the views (if any) of: (i) the person, and (ii) the person's spouse, if any, if the relationship between the person and the spouse is close and continuing, and (iii) the person, if any, who has care of the person, (b) the importance of preserving the person's existing family relationships, (c) the importance of preserving the person's particular cultural and linguistic environments, and (d) the practicability of services being provided to the person without the need for the making of such an order.
The phrase a "person in need of a guardian" as used in s 14(1), is defined in s 3 of the Guardianship Act 1987 to mean "a person who, because of a disability, is totally or partially incapable of managing his or her person". Section 3(2) of the Act, defines a "person who has a disability" in the following terms: In this Act, a reference to a person who has a disability is a reference to a person: (a) who is intellectually, physically, psychologically or sensorily disabled, (b) who is of advanced age, (c) who is a mentally ill person within the meaning of Chapter 3 of the Mental Health Act 1990, or (d) who is otherwise disabled, and who, by virtue of that fact, is restricted in one or more major life activities to such an extent that he or she requires supervision or social habilitation.
The relevant provisions for determining who should be appointed guardian are sections 15 and 17. Section 17(1) provides: (1) A person shall not be appointed as the guardian of a person under guardianship unless the Tribunal is satisfied that: (a) the personality of the proposed guardian is generally compatible with that of the person under guardianship, (b) there is no undue conflict between the interests (particularly, the financial interests) of the proposed guardian and those of the person under guardianship, and (c) the proposed guardian is both willing and able to exercise the functions conferred or imposed by the proposed guardianship order.

Background to the application and the conduct of the hearing at first instance

At the time the order was made ZTM was 70 years old. She resides in a Sydney suburb in accommodation where she is supported by a support agency (the Agency). ZTL is the brother of ZTM and ZTN is a general manager of the Agency.
On 19 July 2019 the Tribunal made a financial management order and appointed ZTL as ZTM's financial manager.
On 14 September 2020, an employee of the Agency ("the original applicant") lodged applications with the Tribunal seeking: 1. the appointment of a guardian for ZTM and nominating the Public Guardian to be appointed as the guardian, 2. a review of the financial management order.
On 6 October 2020 ZTL lodged an application seeking the appointment of a guardian for ZTM and nominating himself to be appointed as the guardian.
On 19 October 2020 the Tribunal constituted as the Guardianship Division of NCAT (the Tribunal) considered the applications in a hearing conducted by telephone. The original applicant did not participate in the hearing at first instance as she had left the employ of the Agency, and the general manager of the agency (ZTN) replaced the original applicant as the applicant in the matter.
ZTL made an application seeking an adjournment based on the late receipt of documents that he referred to as the "second submissions" of the applicant. The Tribunal asked ZTN if she would consent to that document not being read by the Tribunal and withdrawn. ZTN consented and the Tribunal withdrew that document and ZTL withdrew his application for an adjournment.
ZTL submitted that the applicant lacked standing to bring the application. Having considered the matters raised by ZTL the Tribunal was satisfied that the applicant had standing.
All participants at the hearing other than ZTM agreed that ZTM was a person for whom a guardianship order could be made. The Tribunal was satisfied that ZTM was a person for whom a guardianship order could be made.
The Tribunal was satisfied that there was a need for formal decision making in the following areas of ZTM's life: 1. Her medication and possible future medical interventions; 2. Her access to increased community participation and greater access to day programs.
In its Reasons for Decision the Tribunal records the following in respect of its consideration as to who should be appointed as the guardian: [51] However, the Tribunal could not disregard that whilst (ZTL) had been her informal decision maker, she had not been able to access the services of the allied health professionals recommended to help her and potentially equipment and/or activities as recommended by those same professionals. In addition (ZTL) presented as somewhat distracted by his inability to interact with the staff from (the Agency) in the manner he wanted, resulting in historical conflict with his sister's accommodation provider. [52] The evidence demonstrated that despite ZTL's willingness to become (ZTM's) guardian and his genuine interest in her welfare, the Public Guardian should be appointed as guardian for (ZTM).
The Tribunal at first instance: 1. adjourned the consideration of the application to review the financial management order. 2. dismissed the application of ZTL seeking a guardianship order; and 3. upon considering the application of ZTN, made the guardianship order that is the subject of this appeal.

The Appeal

On 16 November 2020, D. Andrews, solicitor for the appellant, filed a Notice of Appeal in respect of: 1. The whole of the order regarding the making of an (sic) guardianship order appointing the Public Guardian as guardian of (ZTM). 2. The dismissal of the application for guardianship lodged by (ZTL)
Section 5B of the Notice of Appeal requests the appellant to list a short summary of each reason why the appellant considers that the Tribunal was wrong when it decided to make the orders appealed from. Under section 5B the appellant refers to Annexure A and notes that the transcript of the hearing was not available at the time of lodging the appeal and that the grounds of appeal might be amended upon receipt of the transcript. Annexure A to the Notice of Appeal lists grounds of appeal numbered 1 through to 7.
On 3 February 2021 at a Directions hearing, a differently constituted Appeal Panel issued the following directions: 1. Leave for the appellant to be legally represented by D Andrews on condition that no legal costs may be recovered by the appellant. 2. The substitute applicant at the hearing of the Guardianship Division is to be known as ZTN 3. Leave for ZTN to be legally represented by K Bridge on condition that no legal costs may be recovered. 4. Leave for the appellant to lodge and serve an amended Notice of Appeal by 10 February 2021. 5. Respondents to lodge and serve a reply to Appeal by 17 February 2021 6. A separate representative is appointed for ZTM 7. By 5 March 2021 the appellant is to lodge: 1. All the evidence given to the Tribunal below on which it is intended to rely 2. Any evidence not provided to the Tribunal in making the decision under appeal, on which it is intended to seek leave to rely; 3. The appellant's written submissions in support of the appeal; 4. The sound recording or transcript of the hearing at first instance, if oral reasons were given and/or what happened at the hearing is being relied on and a typed copy of the relevant parts. 1. By 26 March 2021 the respondent is to lodge: 1. All the evidence given to the Tribunal below on which it is intended to rely 2. Any evidence not provided to the Tribunal in making the decision under appeal, on which it is intended to seek leave to rely; 3. The respondent's written submissions in opposition to the appeal; 4. The sound recording or transcript of the hearing at first instance, if not already provided by the applicant and the respondent is relying on what happened at the hearing and a typed copy of relevant parts. 1. The appellant is to lodge and serve on the respondent any written submissions in reply by 1 April 201.
On 24 February 2021, on behalf of ZTL, Mr Andrews lodged an Amended Notice of Appeal annexing a document headed "Section 5B Amended Grounds of Appeal" which comprises two grounds of appeal in paragraphs numbered 1 and 2. Those two grounds of appeal were addressed by counsel for the appellant at the appeal.
By Notice of Reply to Appeal dated 4 December 2020 the Public Guardian indicated that it did not wish to make a submission in relation to the matter with regard to a question of law and reserved the right to present a case and make submissions should leave be granted to appeal on other grounds. The Public Guardian did not appear at the appeal hearing.
By Notice of Reply to Appeal dated 5 March 2021 the respondent Agency indicated that it had no reply to the amended grounds of appeal. Neither the respondent agency not a legal representative of the respondent agency appeared at the appeal hearing.
On 7 April 2021 the Appeal Panel received the Separate Representative's submissions in reply to the Appellant's Grounds of Appeal.
On 9 April 2021 the Appeal Panel received from ZTL's solicitor the Appellant's submissions in respect of the two grounds of appeal notified in the Amended Notice of Appeal.

The hearing of the Appeal

Due to practices established as a result of the COVID 19 pandemic the appeal hearing was conducted by telephone.
ZTL participated in the hearing and was represented by Mr Horobin of counsel instructed by Mr Andrews of Makinson d'Apice Lawyers.
Mr R Wheeler appeared as the separate representative of ZTM.
There was no objection to the late submission of amended grounds of appeal or submissions and the Tribunal accepted those documents.

Scope and nature of appeals to the Appeal Panel

Internal appeals may be made as of right on a question of law, and otherwise with leave of the Appeal Panel: s 80(2) of the NCAT Act.
We are satisfied that the two grounds of appeal include a question of law, namely whether there was a failure to afford procedural fairness.

Appeal Ground 1

Paragraph 1 of the annexure headed Section 5B Amended Grounds of Appeal (Appeal Ground 1) states the following: At Decision 29, and thereafter, the Tribunal erred in law in receiving and relying upon the letter of Dr W of 7 October 2020 (W letter) where: (a)The W letter was not provided to the appellant at any time before the delivery of the decision, and where its existence had not been disclosed to the appellant at any time before the course of the hearing on 19 October 2020, amounting to denial of procedural fairness. (b) The W letter contained material that was severely prejudicial to the appellant's case, and so the course referred to in (a) above meant that the appellant was denied the opportunity to know of its contents, to test the representations contained in the letter, to provide evidence in response to the letter, and to make submissions in response to the representations in the letter, all amounting to a denial of procedural fairness. (c) The appellant objected to the tender and use of the W letter and the Tribunal expressly reserved the issue of that tender and use, but nevertheless thereafter had regard to, and relied upon, it as per Decision [29] without having ruled upon its admissibility and use without having ruled upon the appellant's objection that he had not seen the W letter, which amounts to: (A) a failure to exercise its jurisdiction with respect to ruling on the receipt and use of evidence; and (B) a denial of procedural fairness.

The context of Appeal Ground 1

The W letter is addressed to NCAT and states: (ZTM) is aged seventy years and resides in a group home under the management of (the Agency). Her brother, (ZTL) is the person responsible and her financial manager. There have been reports from (ZTM's) carers that (ZTL) has refused to permit her carers to seek the treatments from allied health professionals including dietitian, physiotherapist, occupational therapist to name a few. He has a tendency to dictate what meals she is permitted to have, what activities she could participate in to name a few. I have been informed that he has made threats against staff at (the Agency). There has been a request from the staff to purchase personal items for (ZTM) which (ZTL) has rejected to pay for, out of (ZTM's) personal funds. As such it is imperative that (the Agency) seek the assistance of NCAT to revoke his position as her financial manager and allow her to enjoy a better quality of life.
The transcript of the hearing at first instance indicates the following discussion occurred regarding the W letter (at p. 15-16): Presiding member: So the next document is Dr W's letter … - her letter "where "she's supportive of the public guardian being appointed. You got that document? ZTL: I have not got it Presiding member: OK, righto. So at this stage … ZTL: I did not - I did not know that information. Presiding member: Sure. So at this stage I'll just um. I'm marking that as to be confirmed.
The transcript does not yield any further mention of the W letter.
The Reasons for Decision of the Tribunal (at paragraph 29) state that: The Tribunal received a voluminous amount of historical and current material about (ZTM). The Tribunal was cognisant of the need to ensure that the hearing proceeded in a timely and efficient manner, relying on the evidence relevant to the issues in dispute. On a preliminary basis, the Tribunal identified the following documents that it intended to rely upon about (ZTM) - (1) Email from (ZTL) to (original applicant) dated 9 October 2019 (2) Email in response from (original applicant) to (ZTL) dated 30 October 2019 (3) Email from (podiatrist) to ZTL dated 26 August 2020 (4) Email from Z to various persons dated 28 August 2020 (5) Email response from D to Z dated 28 August 2020 (6) Written submissions from (ZTL) dated 5 October 2020 (13 pages) (7) Letter of support from Dr W supporting the appointment of a Public Guardian dated 7 October 2020 (8) Health Professional Report from Dr W dated 14 October 2020 (9) Undated letter of support from Dr A for the appointment of (ZTL) (10) Undated "Work Description Schedule" from ZTL (1 page)

Submissions by the Appellant in respect of the W letter

The appellant's submissions in respect of the W letter, provided in written form by Mr Andrews and in oral submissions at the appeal hearing by Mr Horobin, were, in substance, as follows: 1. The letter was provided to the Tribunal by the applicant on 9 October 2020. It was not served on ZTL and was not seen by the ZTL until after the hearing. 2. At the hearing ZTL made it clear that he had not seen the W letter. The transcript indicates that in response to ZTL stating that he had not seen the letter, the Presiding Member said, "I'm marking that to be confirmed" and that there was no further reference to the W letter. Accordingly the Tribunal failed to rule on the receipt of the letter and use of the evidence and therefore failed to accord natural justice to ZTL. 3. The transcript indicates that a Tribunal member questioned how often ZTM saw Dr W. The appellant infers that this inquiry indicates that the Tribunal was attempting to verify Dr W's opinions since the other report from Dr W (a Health Professional Report Form) was not controversial. 4. The Tribunal's Reason for Decision indicate that it received the W letter into evidence and it was a document on which the Tribunal intended to rely. 5. The W letter only repeats allegations by other persons and does not give independent evidence as to what Dr W observed. It does not state with any particularity the matters to which it refers. 6. The Tribunal failed to give the appellant any opportunity to respond to the W letter and although marking it to be "confirmed" did not alert or warn the appellant that it intended to rely on the letter. 7. Had the appellant seen the W letter or had its contents been relayed to him at the hearing it would have been open to the appellant to: 1. request an adjournment to properly respond to the allegations; and/or 2. request further information regarding the allegations; or 3. seek to have Dr W attend a hearing to be tested on the serious allegations outlined in her letter. 1. The W letter was received into evidence and consequently it must have been given weight. The appellant infers that it was given substantial weight as it had been prepared by ZTM's GP and "accordingly on its face it is adverse information that is credible, relevant and significant, such that the applicant should have been given an opportunity to deal with it". Its importance can be inferred from the fact that it and some other documents are identified from the voluminous documents referred to by the Tribunal in its Reasons for Decision, 2. The Tribunal appears to have made no assessment of the W letter and must be taken to have received it in evidence without qualification. 3. The prejudice to the appellant of the Tribunal receiving and relying on the W letter is substantial. It cannot be concluded that the denial of the opportunity for the appellant to respond to the allegation in the W letter made no difference to the outcome of the proceedings. 4. The allegations in the W letter appear to underpin the Tribunal's finding that ZTM was not able to access the services of "allied health professionals" ( a term used by Dr W) and that ZTL was distracted by his inability to interact with staff. 5. The Appeal Panel could not be satisfied that had the W letter not been relied on (or had the appellant been given an opportunity to deal with it) Tribunal's decision would have been the same.

Submissions by the separate representative regarding the W letter

Mr Wheeler's written and oral submissions were to the following effect: 1. ZTL did not object to the tender of the W letter. 2. The Tribunal may determine its own procedures and does not proceed by way of pleadings. 3. The reasons for the application are clearly set out at paragraph 6 of the application for guardianship. The W letter contains no new evidence and reports that ZTM's carers had told her of the matters on which the guardianship application was based. 4. ZTL was well aware of these matters from his extensive email correspondence with the Agency. 5. ZTL responded to these matters in his document headed "Tribunal Hearing Support Documents" that is referred to by the Tribunal at paragraph 29(6) of the Reasons for Decision as one of the documents that it took into consideration.

The evidence and submissions by the Agency in the hearing at first instance

At paragraph 6 of the Application for Guardianship submitted on behalf of the Agency the following matters are listed as indicating the need for an order: 1. The Agency has concerns about ZTL's capacity to make decisions for ZTM . 2. ZTL permits ZTM to attend a Day Program on only one day per week and to be taken out one day a week by Agency staff. 3. ZTL disagrees with much of the health and hospital care plans drawn up by a nurse on behalf of the Agency and sends his own version advising that it should be used in preference to that devised by the registered nurse. 4. ZTL threatens staff that if they do not use his version of a health document he would take further action against them and he has sent emails personally attacking managers and their work. 5. ZTM has funding for services including for occupational therapy and physiotherapy and ZTL has declined those services. 6. ZTL has refused funds for the purchase of new clothes for ZTM.
At pages 24 to 42 of the transcript, ZTN, ZTL and Tribunal members engage in discussion about issues raised by the Agency including "support and care" for ZTM, access to services, including therapy services, community participation and ZTM's ability to go out, purchase of clothing and opportunity to make choices, podiatry appointments and access to occupational therapy, a wheelchair and bathroom requirements. Another Agency staff member refers to physiotherapy services and ZTL engages in discussion about those services for ZTM.

ZTL's evidence and submissions in the hearing of first instance

At page 19 of the transcript the presiding member refers to ZTL's 13 page written submission as one on which the Tribunal will rely. This is the document headed Tribunal Hearing Report Documentation dated 5 October 2020 which includes the following: 1. The following statement by ZTL: "Conclusions made by (the Agency) are based on unsupported documents refuted by (ZTL) in his role as financial manager). They pertain to a few cases and incidents based on incorrect reports and opinions by (the Agency) staff. These complaints are mostly rejected and are responded to with factual reporting, documents and complaints in kind against (the Agency) by me, (ZTL) 1. A statement denying that he has threatened legal action against the Agency in respect of his suggestions about care of ZTM. 2. Statements regarding alleged "withheld monies" with the following text: UNTRUE - None withheld from podiatrist but were slightly delayed December to January for clothes as evidenced by extra funds in petty cash. Podiatrist issues and payment rate was confused with a cancelled appointment requested by me and actioned by (the Agency) refer to email (ZTL to Agency staff member) 16.9.20 below. WITHELD MONIES - PODIATRY ISSUES - NO PAYMENT WAS WITHHELD The podiatry fee for this next appointment was actually paid by me in advance because I paid the 2,5,20 invoice twice. Has the September appointment occurred yet … following the 2nd May invoice repeated payment in September? The (podiatrist) double payment provided the funds for the next visit so it's not a withheld payment from (the podiatrist) as suggested by (agency staff). (Podiatrist) complained of poor communications from (Agency) staff in appointments. I asked for a cancelled 31/8 appointment that delayed ZTM's nails by two weeks, hardly a major health risk for ZTM reported by (the agency). (Original applicant) may not have known all the facts at work site levels. 1. A reference to ZTM's last 5 Podiatry appointments contained in an email to an Agency staff member dated 16 September 2020: I rang Dr W - (Podiatrist) said a new referral was due 7.9.20. (Agency staff member) followed up 16.9.20 from this mail … no follow up by anyone with (Podiatrist) other than me. This new referral was delayed another two weeks … by (the Agency) - This was not my delay. This is hardly a matter for the Tribunal. (The Agency) have put (ZTM) at more risk than anyone by having appointments over 5 months apart. This item is baseless for asking for my dismissal as (ZTM's) financial manager or intimating a risk for (ZTM). 1. A heading WITHHOLD MONIES - (ZTM) CLOTHING - FUNDS WERE PROVIDED BY (ZTL as financial manager) under which ZTL states the following: Clothing funds for (ZTM) - (Agency) staff asked for $300 to purchase new summer clothes for (ZTM). Added money of over $200 was provided by (ZTL as financial manager) through petty cash later than when requested. See the p/cash bank records below with a generous $500 totally into petty cash December and January to include clothes. No itemised estimates were given to me by (the Agency) for (ZTM's) niece or I to consider. It was unclear to me what clothes were required but $200 plus funds were provided in any case. $60 was spent on (ZTM's) special mastectomy bra which was not purchased until a month plus later. The delay was caused by our niece not attending due to her health problems, but she failed to inform me that she did not attend on her agreed December date in the email. Our niece met with … carer The head carer asked me about my niece's health. (ZTM's) family did cause a delay in this case. SUMMER CLOTHES MONEY PROVIDED THROUGH PETTY CASH BY FM I asked the carer did she need more money in January 2020 and she said to action it next summer. I will again review this matter with the head carer now that summer is approaching. I will also check if our great niece can assist the Head Carer. 1. Under the heading: Hospital OT/FM HELPFUL MAILS FOR (ZTM)'S CARE - (ZTM'S) OT/PHYSIO AND MOBILITY MANAGEMENT RELATING TO (ZTL as financial manager) INVOLVEMENT", ZTL states the following: (The Agency) state that (ZTM) has not had an OT inspection and report for 3-4 years incorrect. (ZTM) had an OT inspection of her room 2 1/2 years ago with head carer present. I am chasing up an inspection and report for that one now. Once I have that report we can proceed with new discussions. See photo … below. Note joint effort by (ZTL as financial manager/OT/agency head carer) Win-Win-Win again 1. Under a heading referring to a series of emails between ZTL and the original applicant and another Agency employee ZTL denies that he was disrespectful in his communication and cites a number of matters that reflect on the care provided to ZTL by the Agency. 2. ZTL refers to a "top five issues statement" that he wanted to accompany ZTM to hospital so that treating staff would be aware of her needs. He also refers to a response from the Agency that includes that they have access to Eating and Drinking plans and reports from a dietitian that would be included in any folder to be handed to ambulance and hospital staff. 3. ZTL also provides a submission of approximately one page in length regarding his intervention in respect of ZTM's health and care needs.
In respect of ZTL's oral submissions regarding the matters included in the W letter the transcript of the hearing at first instance records the following: 1. Discussions regarding podiatry for ZTM are recorded from p. 28 of the transcript and in conjunction with discussions about occupational therapy and physiotherapy and wheelchair provision and outings in subsequent pages. At page 34 to 35 ZTL is recorded as saying that had not paid an $80 account for podiatry and now wished that he had done so and that the matter was "blown so out of proportion". He also states that ZTM's podiatry appointment was delayed by two weeks by his cancellation whereas the Agency had allowed ZTM to go five months without treatment. He states that next time he would just say "go ahead" and that "there is no issue for (ZTM's) future podiatry. 2. Discussions regarding occupational therapy for ZTM are recorded from p. 28 in conjunction with discussions about podiatry, physiotherapy and wheelchair provision and outings. More detailed discussion occurs at p.35 to p.36 where ZTL expresses concerns regarding occupational therapists employed by a particular agency and an acknowledgement that there had been delay in his response regarding occupational therapy. 3. Discussions regarding physiotherapy for ZTM are recorded from p. 28 in conjunction with discussions about occupational therapy and podiatry and wheelchair provision and outings and in detail at p. 36 and 37 where he discusses concerns related to the risks of massage for ZTM because of her thrombosis. 4. Discussion of his views and response regarding a new wheelchair for ZTM are recorded from p. 28 in conjunction with discussions about podiatry, occupational therapy, physiotherapy and outings. At page 37 of the transcript ZTL discusses his views about community access for ZTM and issues about a wheelchair. At page 40 to 42, ZTL discusses the possible purchase a new wheelchair if that were recommended by an occupational therapist. 5. At page 38 a Tribunal member refers to delays in occupational therapy and physiotherapy services for ZTM. The member asks ZTL why he has not sought alternative service providers if he lacked confidence in service providers from a particular provider. ZTL responds to that question at page 38 to 39 of the transcript.
In its Reasons for Decision the Tribunal summarises ZTL's evidence on these matters in the following terms: [40] In summary, the evidence was that he acknowledged that he had made a mistake in not permitting $80 to be spent so his sister could attend a podiatrist appointment and that he should have made himself available for a face to face meeting with staff from (the Agency) so that they could try and sort out their differences. He agreed that because of the difficulties in communication, his sister had not seen a physiotherapist or an occupational therapist for two years. However, he submitted that he was unsure exactly what a physiotherapist could offer his sister because of her thrombosis and that he wanted to ensure that any occupational therapist that was appointed had sufficient qualifications. [41] The Tribunal was told that ZTM has recently seen a podiatrist and that another appointment should occur in the weeks ahead.
At paragraph 42 of its Reasons for Decision the Tribunal indicates that the written and oral evidence from various staff of the Agency was to the effect that ZTM's best interests were being adversely affected by informal arrangements made by ZTL, but not to the extent that the Agency need to make a report to the NDIA. At paragraph 43 the Tribunal states: In summary, the Tribunal heard that rather than the cause being a communication breakdown, ZTL had a lack of understanding as to what his sister needed to ensure that she had meaningful and enriching experiences … Despite this contention (ZTL) agreed that in some areas the staff at (the Agency) had done an excellent job of caring for his sister …

Did the Tribunal fail to provide natural justice in respect of the W letter?

The appellant submits that in receiving and relying on the W letter, the Tribunal erred in law and that the Tribunal failed to exercise its jurisdiction with respect to ruling on its receipt and use in evidence. In respect of the this matter we conclude that apart from the discussion of the W letter that deals with its non-receipt by ZTL and that this was a matter "to be confirmed", there is no further mention of the letter in the transcript. We are unclear as to what was meant when the Presiding member said that the matter was "to be confirmed". However we are of the view that it amounts neither to indicating that the Tribunal would consider the document or that it would not do so. On this basis we have concluded that despite the wording of paragraph 29(7) of the Reasons for Decision, the Tribunal appears not to have indicated on a preliminary basis that the W letter was one on which it would rely.
We also note that: 1. the Tribunal is not bound by the rules of evidence (s.38(2) Civil and Administrative Tribunal Act 2013); and 2. the Tribunal determines its own procedure (s.38(1) Civil and Administrative Tribunal Act 2013) and on this occasion did not proceed by formally admitting any material into evidence. In our view having regard to its procedure on this occasion there was no need to formally admit or refuse admission of the W letter.
Having reached the conclusions outlined in the immediately preceding paragraphs, it is our view that the Tribunal did not fail to exercise its jurisdiction with respect to ruling on the receipt and use of evidence.
In our view, insofar as its content is relevant to guardianship, the W letter refers only to what Dr W has been told by staff of the Agency. In his submissions, the appellant submits that this is the case. We are satisfied that these matters formed part of the written application for guardianship and were the subject of detailed discussion during the hearing and were addressed by ZTL in his submission dated 5 October 2020 and orally during the hearing.
The appellant submits that it is reasonable to infer, from the question asked by a Tribunal member as to how often ZTM saw Dr W, that the Tribunal was attempting to verify the material in the Dr W letter because the Health Professional Report Form also submitted by Dr W contained nothing controversial, and because it had been prepared by Dr W. In our view there is nothing in the transcript or the Reasons for Decision to support that inference. In our view, it is at least equally open to infer that the member was seeking to establish the basis on which Dr W could form her opinions about ZTL's health and medical circumstances that Dr W set out in the Health Professional Report Form, or that she was seeking information regarding the consistency of medical treatment provided to ZTM. Further, apart from the reference at paragraph 29(7) there is no mention of the W letter in the Reasons for Decision and no detail of any consideration having been given to the content of the W letter.
In our view the Tribunal's Reasons for Decision and a review of the transcript and the written evidence considered support a conclusion that the Tribunal based its decision on the evidence provided by the Agency and by ZTL and that whilst in its Reasons for Decision it states that at the hearing it indicated on a preliminary basis that it would consider the Dr W letter, there is no indication in either the transcript or the Reasons for Decision that it relied on the document.
The appellant submits that had he seen the W letter or had its contents been relayed to him at the hearing it would have been open to the appellant to: 1. request an adjournment to properly respond to the allegations and/or 2. request further information regarding the allegations; or 3. seek to have Dr W attend a hearing to be tested on the serious allegations outlined in her letter.
In respect of this submission we are satisfied that whilst the W letter was not provided to ZTL, the matters referred to in the letter were known to ZTL and he was provided with ample opportunity to respond to those allegations, and he did respond both in writing and orally. In our view ZTL was not deprived of an opportunity to address the matters referenced in the W letter.
The appellant submits that the allegations in the W letter appear to underpin the Tribunal's finding that:: 1. ZTM was not able to access the services of "allied health professionals" ( a term used by Dr W); and 2. that ZTL was distracted by his inability to interact with staff.
We do not accept this submission. Although Dr W uses that expression, we are satisfied that the expression "allied health professionals" is a commonly used expression and that it is not reasonable to infer that the Tribunal's use of that term indicates that the Dr W letter underpinned the view of the Tribunal. In our view a review of the transcript of the hearing and the Reasons for Decision of the Tribunal clearly indicate that it was the oral and written evidence of the applicant Agency and of ZTL that underpin the decision of the Tribunal.
The appellant submits that the material in the W letter was received into evidence and consequently must have been given weight. For the reasons set out above (see paragraphs 49-50) we are not satisfied that it was received into evidence. Further, as indicated by the foregoing discussion, it is our view that apart from its mention at paragraph 29(7) there is no support for the view that the Tribunal placed weight on the W letter.
The appellant also submits in relation to the W letter, that " on its face it is adverse information that is credible, relevant and significant". In relation to his submission: 1. We accept the view of ZTL that the W letter only repeats allegations by other persons and gives no independent evidence and does not state with any particularity the matters to which it refers. In our view, the letter is not relevant or significant and is not credible evidence of the matters to which it refers. 2. In any case, it is our view that whilst the Reasons for Decision state that at the hearing the Tribunal indicated on a preliminary basis (our emphasis) that it would rely on the letter, the transcript of the hearing and the Tribunal's Reasons for Decision do not support either that the material in the letter was treated as relevant or significant or given any weight.
Of relevance to the matter currently before the Appeal Panel, we note: 1. that in the matter of ZAR v NSW Trustee and Guardian [2016] NSWCATAP 88 in dismissing an appeal, the Appeal Panel of NCAT stated: While every detail of the evidence given in the absence of a party is not required to be put to that party, the substance or gravamen of that evidence should be disclosed: Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 26 ALR 247; Re Pergamon Press Ltd [1971] Ch 388; Ansell v Wells (1982) 43 ALR 41. 1. In the matter of ZCA v NSW Trustee and Guardian [2016] NSWCATAP 192 (ZCA) the Appeal Panel of NCAT expressed the following view: It may be sufficient in some circumstances to inform the party of the "gravamen or substance" of the issue, rather than provide complete copies of all the material: Pilbara Aboriginal Land Council Corporation Inc v Minister for Aboriginal and Torres Strait Islander Affairs [2000] FCA 1113; (2000) 103 FCR 539 at 557.
In the matter of ZCA the Appeal Panel was satisfied that a document that had not been received by the appellant did not contain any adverse material that had not already been communicated to the appellant in a previous document and that the substance of those allegations had all been communicated to the appellant in the previous report and in the applications to the Tribunal. The Appeal Panel was satisfied that that the appellant knew the substance of the allegations against her and was given the opportunity to adduce evidence and make submissions rebutting the adverse evidence.
In the matter of Minister for Immigration and Border Protection v WZARH [2015] HCA 40 (4 November 2015), Gagler and Gordon JJ stated: [54] Gaudron and Gummow JJ pointed out in Re Refugee Review Tribunal; Ex parte Aala "[T]he conditioning of a statutory power so as to require the provision of procedural fairness has, as its basis, a rationale which differs from that which generally underpins the doctrine of excess of power or jurisdiction. The concern is with observance of fair decision-making procedures rather than with the character of the decision which emerges from the observance of those procedures." [55] The concern of procedural fairness, which here operates as a condition of the exercise of a statutory power, is with procedures rather than with outcomes. It follows that a failure on the part of an assessor or reviewer to give the opportunity to be heard which a reasonable assessor or reviewer ought fairly to give in the totality of the circumstances constitutes, without more, a denial of procedural fairness in breach of the implied condition which governs the exercise of the Minister's statutory powers of consideration.
In the matter of Misrachi v Public Guardian [2019] NSWSC 752 Emmett AJA stated (Misrachi): [37]It is not in dispute that the Tribunal is required to afford procedural fairness to any person whose interests, rights or legitimate expectations are affected by its decisions. The content of that requirement must be appropriate and adapted to the circumstances of the particular case. The concern of procedural fairness is to avoid practical injustice, and there will be practical injustice where the aggrieved party has been deprived of the opportunity to advance his or her case.
In our view, the issues raised in a general sense in the W letter were more directly and completely raised in the application and documents submitted by the applicant. We consider that the substance of those matters was put to ZTL and he had an opportunity to respond to them and did respond to them. In our view, ZTL was provided with an opportunity to know the substance and gravamen of the matters referred to in the W letter and had an opportunity to, and did respond to those matters.
In summary, we are not persuaded that the W letter was in fact relied upon the by the Tribunal. However even if the W letter had been taken into account by the Tribunal, ZTL was aware of, and did, address the substance and gravamen of the letter. Having regard to all the circumstances we conclude that ZTL has not suffered any practical injustice from the fact that he was not provided with a copy of that document.

Appeal Ground 2

Paragraph 2 of the annexure headed Section 5B Amended Grounds of Appeal states the following: The Tribunal erred in law in receiving and thereafter relying upon the documents enumerated in Decision [29] (1), (2), (4) and (5) that formed part of the email of 22 September 2020 that had been objected to, withdrawn per Decision [19] and which withdrawal was the basis for the withdrawal of the appellant's adjournment application, at Decision [20] where: 1. the reliance upon evidence that was not before the Tribunal amounts to a finding for which there was no evidence; and 2. the said documents contained material that was severely prejudicial to the appellant's case, but the Tribunal's use and reliance upon those documents denied the appellant the opportunity to know of its contents, to test the representations contained in the letter, to provide evidence in response to the letter, and to make submissions in response to the representations in the letter, all amounting to a denial of procedural fairness.

Context of Appeal Ground 2

On 22 September 2020 the Tribunal received an email from the original applicant setting out a dot point list of issues raised by staff members and attaching various documents. That email and its attachments were provided to ZTL on 13 October 2020.
The text of the email refers to attaching "more supporting evidence" and lists "some of the issues as advised to me by staff …". The list includes 9 matters and concludes with a paragraph supporting the appointment of the Public Guardian.
Attached to the email are a number of documents including the following documents listed by the Tribunal at paragraph 29 of its Reasons for Decision as those on which it indicated, on a preliminary basis, it would rely and which are the basis of Appeal Ground 2: 1. An email from ZTL to the original applicant dated 9 October 2019 (at [29(1] ) 2. An email in response from the original applicant to ZTL 30 October 2019 (at [29(2)]) 3. An email dated 28 August 2020 sent by Z to number of members of staff of the Agency (at [29(4]) 4. An email dated 28 August 2020 from D to Z (at [29(5])
In relation to this email, the transcript includes the following exchanges: at page 3-4 ZTL: … as you might know uh, I did not received (the Agency's) second submission until four days ago, and I - I actually - I've actually applied for an adjournment today but you've decided to go head so I guess we're going ahead but that - that's to be noted. Presiding Member: Well sir, if you want to press for an adjournment today you can do so .. … Presiding Member: … do you want to press for the application? …. At page 5 ZTL: the reason is because I haven't been given sufficient time by uh (the Agency) second submission … they didn't send it to me … and I got it indirectly from you. Presiding Member: If I was say to you I'm not gonna read it, if they want to talk about something today they can raise it extra but I won't read it … At page 6 ZTL … They did send me a submission and … and it seems to me that the submission two replaced it and I answered submission one and I would've been quite OK … going head Presiding Member: Well the only one that … I know of is an email from (original applicant) of 22nd of September, that's the only … submission that I'm going to read at this stage. ZTL: Yeah well that's the one that's the second one, that is it … the first one was quite different to that. Presiding Member: …what if I say to you that I won't read the email from (original applicant)? I just won't read it. ZTL: Well I'm happy to just take the - the nine dot points of (the original applicant) if we could address those of her paragraphs … I probably could give a verbal on that. At page 6 to 7 Presiding Member: … I'm trying to make it even easier for you sir, … I'm inclined to say I'm not reading the email from (original applicant) of 22 September. So I'll … just strike that out, not reading it …
The transcript records that at a later stage of the proceedings the presiding member outlines the documents to be considered by the Tribunal. In respect of the email dated 9 October 2019 the following exchange is recorded: At page 13 to page 14 Presiding Member: The next ones are two emails, one from the ninth of October 2019 which you sent to the (the original applicant) because there were issues around a meeting that she was trying to call and then her response of 30 October 2019, so these two emails. ZTL: Oh, you'd have to read- I probably remember them but I don't - I don't have - oh you mean they would've been in the submission .. … Presiding Member .. you would have them because you were one of the people writing to the (original applicant) ZTL: OK so just give me those two dates again. Presiding Member: Yeah so there's the ninth of October 2019. You wrote to her and that your email was, you know, you talked about there should be an agenda, that sort of thing. ZTL: Oh yeah, what I wrote about meetings generally" and "Yeah I think we had discussions about meetings yeah." Presiding Member: Yeah that's right. ZTL: I said that … Presiding Member: Yeah ZTL: Yeah, Yeah Presiding Member: and then … ZTL: no that's alright … Presiding Member: yeah ZTL: no that was sent yeah
The following exchange is recorded regarding the email dated 30 October 2019: At page 14 Presiding Member: and then her response of 30 October 2019 ZTL: Can you give me the subject because I'm scrolling through as you talk Presiding Member: It's just about - it's - sorry , it's just talking about meetings. ZTL: Yeah, I think we had discussions about meetings yeah.
The following exchange is recorded regarding the two emails sent on the 28 August 2020: At page 15 Presiding Member: The next one is two emails sent on the same day. Z from (the agency) to lots of staff members I presume seeking some information and feedback about (ZTM) and that D' response of the same date, so 28 August. ZTL: Well - well yeah I've got the D' response .. in the documents yeah … Presiding Member: Z's is at the bottom of that email … she's just calling out for information and in fairness to you it's important that you see the context around why D wrote to her email. So it's right at the bottom ZTL: I've got the point … … ZTL Just- just one thing, I've got the points of D's email Presiding Member: Yeah ZTL: but you - but I took it you told me you're only gonna leave out (the original applicant's) … email out of it". Presiding Member: that's right ZTL: You're not gonna (sic) leave D's out? Presiding Member: no ZTL: I'm not worried if you don't, I'm not worried if you don't Presiding Member: Yeah ZTL: but is that what you're doing". Presiding Member: Yeah that's right ZTL: You're not gonna leave D's out? Presiding Member: No ZTL: I'm not worried if you don't, I'm not worried if you don't Presiding Member: Yeah ZTL: but is that what you're doing? Presiding Member: Yeah that's right ZTL: "OK".
The transcript records that later in the hearing the D letter was again referred to in the context of it being identified by the Tribunal as a relevant document: At page 18 Presiding Member: … I am deliberately limiting the evidence to those documents … are you happy with that? ZTL: if you're not gonna use - if you're not gonna use uh, the second lot of submissions by (the agency) and I might just add that the D stuff, uh, was in the second submission but in the case of the D I'm not worried too much. Presiding Member: OK ZTL: because I can answer both of these questions.

Submissions by the appellant

In substance, the appellant's submissions were: 1. The "second submission" comprised the email and attachments. The appellant reasonably took the view that the withdrawal of the second submission also included the withdrawal of the attachments. 2. ZTL withdrew his application for an adjournment on the basis that the "second submission" was withdrawn. 3. ZTL had not had an opportunity respond to the documents identified by the Tribunal at paragraph 29(1), (2) (4) and (5) as ones that it intended to take into consideration. 4. The appellant was "inadvertently misled" by the Tribunal and this amounts to denial of procedural fairness. 5. The documents dated 28 August contain severely prejudicial material. The documents dated 9 October 2019 and 30 October 2019 also contain prejudicial material and have a tendency to mislead and require explanation and context. 6. The Tribunal appears to have made no assessment of the documents and accordingly it must have been taken to have received that evidence without qualification. 7. ZTL was denied the opportunity to know the contents of the attached documents, to test representations contained therein, to provide evidence in response and to make submissions in response. 8. It is reasonable to infer that: 1. The documents were given substantial weight having been provided by ZTM's care provider and on its face it was it was credible, relevant and significant and the appellant should have been given an opportunity to deal with it and he was not. 2. The importance of the documents to the Tribunal's decision can be inferred from the fact that they were identified from the voluminous material provided to the Tribunal. 1. The matters referred to in the documents seem to underpin the decision of the Tribunal that ZTM had not been able to access the services of allied health professionals and that ZTL was distracted by his inability to interact with staff from the Agency. 2. The Appeal Panel cannot be satisfied that had the documents not been relied upon, or had the appellant been given an opportunity to deal with them, the decision would have been the same.

Submissions by the separate representative in respect of the email and its attachments

The separate representative submitted that the Tribunal undertook not to consider the email of 22 September 2020 from the original applicant, and did not include it in the material to which it refers in paragraph 29 of the Reasons for Decision.
In respect of the documents that were attached to the email and referred to in the appellant's submissions the separate representative submitted: 1. The first email was authored by the appellant and therefore known to him. 2. The email dated 30 October 2019 appears to be from the original applicant to another person and passes on the email from ZTL and a response that had been sent to ZTL. Both these documents were known to ZTL. 3. The email from D raises no issues that were not put to the appellant apart from the cancellation of a podiatry appointment. The Tribunal referred specifically to that document and its intention to consider it and ZTL said he had a copy of the document and was not worried about its inclusion in the material considered by the Tribunal. 4. The Tribunal does not proceed by pleadings requiring each one to be addressed. The material before the Tribunal consisted of a large number of documents. The Tribunal engaged the appellant in an exercise of determining which documents it would consider and excluded that to which he objected. The appellant was given an opportunity during the hearing to respond to issues of concerns raised by the applicant and did so.

Was ZTL misled about the material that the Tribunal intended to consider?

We are of the view that there appears to have been some miscommunication in references to the "second submission" by ZTL and the presiding member. ZTL appears to have included the covering letter and its attachments under the term "second submission" whilst the presiding member included only the covering letter. In relation to this circumstance: 1. It appears to us that at the point at which ZTL agreed to not press his adjournment application he believed that the covering letter and its attachments would not be considered by the Tribunal. 2. The covering letter was not considered by the Tribunal. 3. Each of the attachments considered by the Tribunal that have been referred to in the appellant's submission were subject to discussion between ZTL and the presiding member. In our view, whilst there was some initial miscommunication about what was and was not part of the "second submission", the subsequent discussion clearly communicated to ZTL the attached documents that the Tribunal was intending to consider. The adjournment application was not renewed. 4. ZTL did not object to the inclusion of the documents that formed the attachment and that were specifically listed by the Tribunal as those that it was taking into consideration. In respect of the D document he specifically said he was "not worried" about its inclusion and could respond to matters contained in it.
Having regard to the matters referred to above it is our view that: 1. ZTL was not misled by the Tribunal about the documents to which the Tribunal intended to have regard. He was provided with an adequate opportunity to object to the inclusion of each of the documents referred to in his submissions and either did not object or expressly agreed to their inclusion. 2. Whilst ZTL was not legally represented at the hearing at first instance, we are satisfied that the transcript indicates that he was vocal and assertive during the hearing and appears not to have been under difficulty in addressing the Tribunal. The detailed identification of documents proposed to be considered provided him with an adequate opportunity to again seek an adjournment on the basis that he had not had sufficient time to consider those documents. He did not do so and in the case of one of the documents he specifically stated that he was able to address its contents.
In our view, it was made clear to ZTL that the documents identified in Appeal Ground 2 would be considered by the Tribunal and he was not inadvertently misled by the Tribunal in respect of which documents would be considered. Accordingly in our view, there was no denial of procedural fairness due to him being inadvertently misled as to the documents to be considered by the Tribunal.

Was ZTL provided with an opportunity to address the matters raised in the emails?

During the hearing ZTL indicated that he received what he referred to as the "second submission" four days prior to the hearing. The written submissions on behalf of the appellant indicate that this was received on 13 October 2020 or approximately 5 days before the hearing on 19 October 2020. We are satisfied that ZTL's submission is that the documents were received 5 days before the hearing.
The document dated 9 October 2019 was written by ZTL and sets out his opinion as to criteria that justify a meeting and issues that he believes would have been addressed in a meeting with the Agency staff. As indicated by the excerpts from the transcript referred to above, during the hearing ZTL acknowledged that email and the fact that there had been discussions about meetings. The Reasons for Decision of the Tribunal indicate (at paragraph 40) that ZTL addressed the issue of meetings and said that he should have made himself available for face to face meetings with staff for the Agency. It is our view that ZTL was on notice that the Tribunal would consider the emails regarding meetings, understood what that matter was about, and had a reasonable opportunity to challenge the material, call further evidence regarding meetings or make further submissions.
The document dated 30 October 2019, is an email from the original applicant and appears to forward ZTL's email (referred to in the previous paragraph) to another person. It contains no text and therefore in our view contains no content to be challenged. In our view ZTL knew that the Tribunal would consider the email, understood what that matter was about, and had a reasonable opportunity to call further evidence regarding it or to make further submissions.
The document dated 30 October 2019 also forwards a reply made to ZTL by another staff member. That email seeks to clarify discussions about a possible meeting and to asks ZTL to be available to attend medical appointments with ZTM. To the extent that this portion of the email chain discusses meetings we are satisfied that our comments in the preceding sub-paragraphs apply. To the extent that it introduced other material regarding attendance at medical appointments with ZTM we find that this was not an issue raised by the applicants or ZTL and was not one to which the Tribunal turned its mind.
The document dated 28 August 2020 is one to which ZTL's attention was clearly drawn by the Tribunal. It seeks information from staff and makes no factual claims or assertions to be challenged. We are satisfied that, having received a copy of that email some 5 days prior to the hearing, and knowing that the Tribunal intended to look at it, ZTL was given a reasonable opportunity to comment on it if he wished to do so and to call further evidence regarding it or to make further submissions regarding the email.
The D email dated 28 August 2020 comprises a dot-point list of matters that the author has identified in relation to ZTL's decisions about ZTM. ZTL expressed himself to be familiar with the document, and said that he as "not worried" about its inclusion in the documents to be considered. In our view, taking into account that he was familiar with the document, was "not worried" about its inclusion as a document to which the Tribunal would have regard and indicated that he could "answer" issues raised by it, he understood its meaning, and was provided with a reasonable opportunity to address the matters it canvassed if he wished to do so. Amongst the issues canvassed were those regarding purchase of clothes for ZTM, podiatry appointments and purchase of a wheelchair. These were matters that were raised by the applicant Agency elsewhere and were addressed by ZTL. An issue canvassed in the email about ZTM's attendance at outings and other activities was a matter about which ZTL had notice because it was included in the initial application for the guardianship order. In our view, ZTL knew about this issue and had notice of it and was able to provide evidence or make submission regarding that matter. The email also refers to a matter regarding ZTM's dietary restrictions. Whilst this matter was not discussed further during the hearing we are satisfied that having declared himself familiar with the content of the document he was provided with a reasonable opportunity to address the dietary issue if he wished to provide further evidence regarding it. We conclude that he was not deprived of an opportunity to know of this matter, or to test the comments about this matter or to provide evidence or submissions in response to it.
Taking into account our conclusions set out in the preceding paragraphs, it is our view that ZTL was provided with a reasonable opportunity to know of the substance and gravamen of the material canvassed in documents attached to the email of 22 September 2020 that are identified as the basis of Appeal Ground and to test any comments and to provide evidence and submissions in relation to them.
Notwithstanding our view that ZTL was provided with a reasonable opportunity to consider the documents that are subject to this appeal we considered, for completeness, whether, had we decided otherwise, deprivation of that opportunity would amount to an error that resulted in practical injustice to ZTL (see Misrachi) above. In this respect we have reached the following conclusions: 1. We do not accept the submission of the appellant that the Tribunal placed weight on the documents. In this respect: 1. The comment of the Tribunal related to ZTL's views about meetings cites his oral evidence, not his email. 2. Of the issues listed in the D document, those that were referred to by the Tribunal in its decision were subject of considerable discussion and documentation by ZTL and ZTN and in our view the Tribunal did not place weight on the repeat listing of those matters in the email. 3. In our view the documents dated 30 October 2020 and 28 August 2020 contain no material that had the potential to affect the decision of the Tribunal. 1. Having reached the conclusions set out above, it is our view that even if ZTL was not provided with a reasonable opportunity to address the documents per se, he was able to, and did address the matters raised and was not subject to a practical injustice by virtue of not being provided with a reasonable opportunity to address the documents.

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: 30 June 2021

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Judgment (22 paragraphs)

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Legislation Cited (2)

Cases Cited (8)