ZTU v ZTV

The Power of Attorney and the Queensland proceedings

1. On 5 December 2012 ZTV executed an enduring power of attorney ("the Power of Attorney") under Queensland law, appointing ZTU as his attorney. Under Queensland law, an appointment of a person as attorney under a power of attorney gives that person authority to make decisions about the grantor's personal and health matters as well as their property and financial affairs. That was so in this case.
2. In July 2020, ZTV's NDIS support coordinator from the aged care service provider applied to the Queensland Civil and Administrative Tribunal ("QCAT") for an order to appoint ZTV's daughters ZTW and ZTX as his administrators. The application expressed concerns about some decisions being made by ZTU about ZTV's NDIS services and funding. Those concerns were disputed by ZTU who asserted then, as she continues to do, that staff of the aged care service provider have been unduly influencing ZTV. In August 2020, when the proceedings described below in the Guardianship Division of this Tribunal were commenced, the Queensland proceedings were pending.

The NSW Civil and Administrative Tribunal (NCAT) guardianship proceedings and orders

1. On 25 August 2020 ZTU applied to the Guardianship Division of this Tribunal. Her application sought the appointment of a guardian and a financial manager for ZTV and she proposed herself for both roles.
2. ZTW and ZTX were subsequently joined as parties to those proceedings. Their position was to oppose the appointment of ZTU as guardian or financial manager. They and staff of the aged care service provider expressed concerns about ZTU's relationship with ZTV and as to whether the decisions ZTU would make for ZTV as guardian or as financial manager would be in his best interests.
3. The applications were heard in the Guardianship Division on 19 October 2020. On that date the Tribunal ordered that guardianship and financial management orders be made for ZTV. ZTW was appointed as his guardian for 12 months from that date with the functions of accommodation, health care, medical and dental consent and services. ZTV's estate was made subject to management under the NSW Trustee and Guardian Act 2009 (NSW). ZTW was appointed as ZTV's financial manager, subject to the authorities and directions of NSW Trustee and Guardian.

The appeal

1. ZTU has appealed against the making of those guardianship and financial management orders. Her Notice of Appeal was received by the Registry on 22 December 2020.
2. As we understand ZTU's position, she does not oppose the appointment of a guardian or other financial manager for ZTV but opposes the appointment of her daughter ZTW to those positions and asserts that the Tribunal was in error in reaching its decision to appoint ZTW.

Issues for determination on appeal and our decision

1. The making of internal appeals is governed by Pt 6 Div 2 of the Civil and Administrative Tribunal Act 2013 (NSW) ("the NCAT Act"). The effect of s 80 and specifically s 80(2)(b) of that Act is that an appeal may be made as of right on a question of law, or with the leave of the Appeal Panel on any other grounds.
2. Additionally, ZTU applied to us for an adjournment of this hearing.
3. It therefore fell to us to decide whether an adjournment should be granted and if it were not granted: 1. whether, in reaching its decision to appoint ZTW as guardian and financial manager, the Tribunal had fallen into legal error; that is, that the decision was based on an error of law, in which case ZTU's appeal would proceed as of right; 2. whether we should in any case grant ZTU leave to appeal; and 3. what orders we should make.
4. We decided that ZTU's application for an adjournment should be refused, that the Tribunal's decision was not based on any error of law and that ZTU should not be granted leave to appeal. We therefore ordered that the appeal be dismissed and that leave to appeal be refused.
5. These are our reasons for those decisions.
6. For convenience of reference, the text of the statutory provisions referred to in these reasons is set out in the Appendix.

Adjournment application

1. ZTU asked us to adjourn the hearing for two to three months. She told us that she had not had enough time to prepare for the hearing, that she did not bring her copy of the Notice of Appeal to this hearing, that she wanted more time to prepare a transcript of parts of the original hearing and that she wanted legal advice on her position.
2. We decided to refuse the application for adjournment, for the following reasons: 1. We were satisfied that ZTU had been provided with all materials necessary for her to prepare her case. Her opening position was that she had not been provided with any paperwork whatsoever by other parties, but that was clearly not the case. ZTU insisted that she had not received the written submissions and statements made most recently by ZTV, ZTW and ZTX. Despite some indications in the Tribunal file that they had been sent to her, we told the participants that we would not rely on those documents, nor on the recent report from Dr Z, but that we would hear oral submissions from ZTV and ZTW ( ZTX being unavailable to participate). 2. We found ZTU's contention that she had not had sufficient time to prepare to be implausible. The Notice of Appeal was lodged on 22 December 2020. There had been Directions Hearings on 23 December 2020, 11 January 2021, 20 January 2021 and 17 February 2021. At the February 2021 Directions Hearing the Principal Member had extended the time for compliance with some earlier directions. Although it was not completely clear from the papers that ZTU had directly participated in each of these Directions Hearings she had in each case being notified of the resulting orders and directions. ZTU had lodged voluminous documentary material with the Registry at various stages. 3. ZTU had had adequate opportunity to arrange for a transcript to be made of any part of the recording of the Tribunal proceedings that she wished. The Registry records show that ZTU did not apply for a recording of the Tribunal's hearing until 24 February 2021 and that the recording disc had been sent to her on 18 March 2021 so that she should have received it on or about 25 March 2021. In her answers to our questions it became apparent that she had made one unsuccessful attempt to engage a transcriber, but there was no indication that she had made further attempts to obtain a transcription. 4. ZTU told us that she had applied for legal aid but that her application had been refused and that she was now challenging that decision. It was not completely clear that the legal aid grant was sought in respect of these proceedings as opposed to the QCAT proceedings described at [7] above. Be that as it may, ZTU had had, even on a conservative estimate, at least three months to arrange legal advice and representation. There was no indication that, having been refused legal aid she had explored alternative avenues for advice or representation (as opposed to appealing the refusal decision). 5. Any adjournment was strenuously opposed by ZTV and ZTW. ZTW told us that the stress caused to ZTV by repeated request for postponements and delays by ZTU had had a major impact on ZTV's health and welfare and that there was a clear and immediate need for all issues relating to this appeal to be resolved without further delay. 6. No other party to this appeal was legally represented or sought to be so represented. There was a possibility of strategic disadvantage to the other parties if the adjournment were granted to allow ZTU to obtain legal representation. This would arise from the fact that if ZTU did obtain legal representation, she would be the only party so represented.

Was the appeal out of time?

1. A further preliminary issue arose because ZTW asserted that ZTU's Notice of Appeal was lodged outside the time limit prescribed by the Tribunal's rules.
2. Rule 25(4)(c) of the Civil and Administrative Tribunal Rules 2014 (NSW) ("NCAT Rules"), when read with r 25(4A) of the NCAT Rules, requires a notice of appeal to be lodged with the Registry within 28 days of the later to occur of: 1. the day on which the appellant was notified of the decision; and 2. the date that reasons for that decision "are first given, whether orally or in writing".
3. ZTU was first notified of the decision at the hearing on 19 October 2020 but did not receive the Tribunal's orders and reasons for decision until she received those documents posted to her by the Registry. Under r 13(4)(a) of the NCAT Rules, a document sent by post is assumed to have been received on the seventh working day after the date it was posted. The Registry's records indicate that the Tribunal's orders and reasons for decision were posted to ZTU on 19 November 2020. So, by operation of r 13(4)(a) of the NCAT Rules, they were deemed to have been received by her seven working days later; that is on 30 November 2020.
4. It must follow that the Notice of Appeal, having been lodged by ZTU on 22 December 2020 (23 days after 30 November 2020) has been lodged within time.

Documentary material and the parties' submissions

1. We received and considered a large volume of documentation from ZTU. Much of this consisted of material made available to the Tribunal for the hearing but it also included written submissions as to her position and voluminous correspondence. We also considered the documentation provided by other parties although, as noted above, because ZTU disputed the delivery to her of recent written submissions from ZTV and ZTW, we decided not to rely on those documents but to hear submissions from each of them at the hearing of the appeal.
2. We heard oral submissions from ZTU as the Appellant and from each of ZTV and ZTW as First and Second Respondents. ZTU replied to the Respondents' submissions.

Obligation to assist an appellant to formulate alleged errors of law

1. As noted above, ZTU was unrepresented. The documentary material lodged by her was voluminous. It was difficult for us to discern from it or from the Notice of Appeal the precise nature of any assertion that the Tribunal had fallen into legal error in making its decision; that is, had committed an error of law. The prospect of identifying an alleged error of law was, to put it mildly, not materially enhanced by ZTU's oral submissions.
2. We were mindful of the warnings in cases including George Papazachariou v Michael Antoun [2015] NSWCATAP 157 and Cominos v Di Rico [2016] NSWCATAP 5 ("Cominos"), that it can be difficult for self-represented appellants to express clearly their grounds of appeal or, (which is in many cases, even more challenging) to identify an error of law.
3. In Cominos the Appeal Panel said, at [13]: "… In such circumstances and having regard to the guiding principle, it is appropriate for the Appeal Panel to review an appellant's stated grounds of appeal, the material provided and the decision of the Tribunal at first instance, to examine whether it is possible to discern grounds that may either raise a question of law or a basis for leave to appeal… However, this must be balanced against the obligation to act fairly and impartially (Bauskis v Liew [2013] NSWCA 297 at [68])… Relevantly, s 38 (2) (of the NCAT Act) provides that the Tribunal 'may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice'."
4. As it was put, with perhaps understandable bluntness, by the High Court in Neil v Nott [1994] HCA 23; (1994) 121 ALR 148, at [5]: "A frequent consequence of self-representation is that the court must assume the burden of endeavouring to ascertain the rights of the parties which are obfuscated by their own advocacy."
5. As was done in Cominos and in other recent Appeal Panel decisions including ZGB v ZGC [2018] NSWCATAP 58 at [27]-[30] and ZAN v The Public Guardian [2016] NSWCATAP 20 at [25]-[27], we endeavoured by discussion with ZTU to assist her to clarify the grounds of her appeal and to identify any alleged errors of law, in particular, by seeking her clarification as to how, in her view, the Tribunal had made an error or errors in reaching its decision.

What is an error of law?

1. In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 ("Prendergast") at [13], the Appeal Panel of this Tribunal described the following questions as constituting questions of law: (1) whether the Tribunal had provided adequate reasons, which explain the Tribunal's findings of fact and how the Tribunal's ultimate conclusion is based on those findings of fact and relevant legal principle; (2) whether the Tribunal had identified the wrong issue or asked the wrong question; (3) whether it had applied a wrong principle of law; (4) whether there had been a failure to afford procedural fairness; (5) whether the Tribunal had failed to take into account a relevant (that is, a mandatory) consideration; (6) whether it had taken into account an irrelevant consideration; (7) whether there was no evidence to support a finding of fact; and (8) whether the decision was legally unreasonable.

Prendergast Grounds 5 and 6

1. A failure to deal with evidence may in appropriate circumstances be characterised as a failure to have regard to a relevant consideration or a failure to have regard to critical evidence (Prendergast grounds 5 and 6 respectively). It is generally not mandatory to consider particular evidence: Rodger v De Gelder [2015] NSWCA 211 at [86]; Allianz Australia Insurance Ltd v Cervantes [2012] NSWCA 244 at [15] per Basten JA. However, as observed in Conomos, the Tribunal is required by s 38(6)(a) of the NCAT Act: ".. to ensure that all relevant material is disclosed to (it) so as to enable it to determine all of the relevant facts in issue in any proceedings."
2. That obligation obviously includes an obligation on the Tribunal to have regard to material which has been disclosed to it and which is relevant to the facts in issue, at least where that material is of some significance.
3. Further, at common law, where a decision-maker ignores evidence which is critical to an issue in a case and contrary to an assertion of fact made by one party and accepted by the decision maker, that is an error of law: Mifsud v Campbell (1991) 21 NSWLR 725 at 728; Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 at [62]-[63]; Eadie v Harvey [2017] NSWCATAP 201 at [61]-[62].

Asserted errors of law

1. On the basis of our discussion with ZTU and in light of our examination of the material provided to us and to the Tribunal at first instance, we identified the following assertions which stood to be investigated as potential errors of law: 1. The Tribunal's assessment that ZTW was suitable for appointment as guardian or financial manager, the asserted error by the Tribunal being its failure to consider or to give appropriate weight to evidence of ZTW's other commitments including her family commitments, which in ZTU's contention, were so extensive that ZTW could not properly undertake the office of the guardian or financial manager and was therefore unsuitable for appointment. That appears to be an assertion of a failure to take into account a relevant consideration (Prendergast ground 5 and arguably ground 6). 2. The Tribunal's positive assessment of ZTW's suitability for appointment (particularly as financial manager), given her failure to manage and supervise the accounts of ZTV's estate adequately. As we understood ZTU's contention, she alleged that there was a history of ZTW failing to observe the degree of diligence necessary to protect ZTV's best interests in the management of his financial affairs and in relation to his execution of a lease agreement for social housing with the aged care service provider ("the Social Housing Agreement") and the Tribunal had failed to consider the evidence or had taken into account irrelevant considerations in reaching its conclusion (Prendergast ground 5 and arguably ground 6). 3. The Tribunal failure to take into account a relevant consideration in deciding to appoint ZTW (at least as financial manager), namely that (on ZTU's assertion) the aged care service provider had wrongly and improperly procured ZTV's execution of the Social Housing Agreement, perhaps by undue influence but at least by unfair treatment of him. We understood ZTU to imply that this had occurred while ZTW had responsibility for managing ZTV's affairs. (Prendergast ground 5).

(1) ZTW's lack of suitability - unavailability

1. It is not clear to us that there was any documentary evidence available to the Tribunal as to ZTW's other life commitments or on the extent to which they interfered or might interfere with her ability to undertake her obligations as a guardian or a financial manager (other than brief references to her employment as a Senior Practice Nurse at a General Practitioner clinic: see the Tribunal's reasons at [73] and the extracts below.)
2. The Tribunal's reasons for decision do advert to the issue at [109], [112] and [114], which are in the following terms: "[109] [ZTU] said that she would probably not support [ZTW] being appointed. She said that [ZTW) had not been involved before and has other commitments. As the hearing progressed [ZTU] appeared to advocate less for herself being appointed as [ZTV]'s financial manager. [ZTU] was unsure about the option of the NSW Trustee and Guardian…. [112] [ZTW] is employed as a Senior Practice Nurse at a General Practitioner Clinic. The evidence is that she has capacity to take on the role of [ZTV]'s financial manager and can balance this with her other family and work commitments. [ZTW] presented as capable and as having the necessary skills to take on the role. Her evidence was consistent with her wanting to help [ZTV] achieve as much independence as possible… [114] [ZTW]'s evidence revealed no disqualifying factors that would prevent her acting as [ZTV]'s financial manager. [ZTW] is aware that if appointed as [ZTV]'s financial manager she is required to work under the authorities and directions of the NSW Trustee and Guardian and be accountable to that office. She saw no difficulties in complying with these requirements."
3. It was on that basis that the Tribunal, as recorded at [115] of its reasons, was satisfied that ZTW was a suitable person to be appointed as financial manager.
4. What seems clear is that the "other commitments" which had come to the Tribunal's attention were regarded by it as being positive indications of her suitability for appointment. Given the nature of the commitments, especially her senior nursing role, such a conclusion was a reasonable one.
5. In presenting her case on appeal, ZTU did not explain the basis on which she asserted the Tribunal had overlooked any important principle or any specific item of evidence in reaching its conclusion as to ZTW's suitability for appointment.
6. In considering who to appoint, the Tribunal appears to have sought and given appropriate weight to the views presented by all relevant participants. That seems clear from its reasons at [73] in relation to the guardianship appointment and [108]-[114] in relation to the financial management appointment.
7. In her submissions on appeal ZTW gave a detailed account of the actions which she had taken, particularly as financial manager. She also described her concerns about possible misappropriation of ZTV's estate prior to the making of the financial management order and gave us what appeared to be a frank and credible account of her own family responsibilities, particularly her involvement and understandable commitment to providing care and support for her two sons, both of whom have special needs.
8. Significantly, ZTW confirmed that she had made those matters clear to the Tribunal at the hearing. That much was not contested by ZTU in her submissions in reply.
9. ZTW did concede that she had not disclosed her pregnancy to the Tribunal at the hearing, but she told us that that was because she felt that the pregnancy had no bearing on her ability to make appropriate decisions for ZTV.
10. In short, ZTW provided us with a frank and thorough account of her ability to undertake the functions of a guardian and a financial manager for her father and her other commitments. Significantly (with the one exception of revelation of ZTW's pregnancy) all those matters were disclosed to or apparent from the evidence available to the Tribunal. The Tribunal appears to have applied the evidence relevant to these issues appropriately as the basis for its finding that ZTW was suitability for appointment.
11. We concluded there was no failure by the Tribunal to take into account any relevant evidence and it did not take into account any irrelevant consideration. Additionally, in so far that it might be asserted that there was an error of law under Prendergast ground 7, we are satisfied that there was sufficient evidence before the Tribunal to support its finding that ZTW was suitable for appointment and that the Tribunal assessed that evidence appropriately.
12. There is no error of law in this regard.

(2) ZTW's lack of suitability - failure to manage ZTV's affairs

1. We reach the same conclusions in relation to the assertion that the Tribunal erred at law in finding ZTW to be suitable for appointment given her failure to manage ZTV's affairs in particular, his entry into the Social Housing Agreement.
2. ZTU has failed to persuade us that the Tribunal: 1. was in error in finding ZTW suitable for appointment as financial manager; or 2. wrongly ignored or rejected any evidence relevant to this issue.
3. There is nothing before us which substantiates ZTU's claim that ZTW's alleged failure to manage ZTV's affairs led to his entry into the Social Housing Agreement or that that agreement or the accommodation made available under it was adverse to ZTV's welfare and interests. On any reasonable view of the evidence available to the Tribunal, the contrary seems to be the case. At the appeal hearing both ZTW and ZTV expressed satisfaction with his accommodation and care at the facility. ZTV told us that at the aged care service provider's facility: "...I feel the best I have in my life."
4. We understand that the Social Housing Agreement has been replaced by an agreement entered into in February 2021.
5. We are unable to ascertain any error of law by the Tribunal in relation to these matters.

(3) ZTV's execution of the Social Housing Agreement

1. Our comments and conclusions in the preceding section are equally applicable to the third assertion of an error of law. ZTU did not draw to our attention to any evidence available to the Tribunal which might support a finding: 1. that the Social Housing Agreement had been entered into by ZTV improperly or under the undue influence of others; or 2. that ZTW bore some responsibility for that state of affairs.
2. Again we are unable to ascertain any error of law by the Tribunal in relation to these matters.

Conclusion: Error of Law

1. It must follow that there has been no error of law by the Tribunal.

Principles governing a grant of leave

1. The principles governing an application for leave to appeal under the NCAT Act are well-established and are repeated in many decisions of the Appeal Panel, often quoting Collins v Urban [2014] NSWCATAP 17. They are the same principles applied by the courts. In Secretary, Department of Family and Community Services v Smith [2017] NSWCA 206 ("Smith"), the Court of Appeal said at [28] (citations omitted): "Only if the decision is attended with sufficient doubt to warrant its reconsideration on appeal will leave be granted. Ordinarily, it is only appropriate to grant leave where there is an issue of principle, a question of general public importance, or an injustice which is reasonably clear, in the sense of going beyond what is merely arguable. It is well established that it is not sufficient merely to show that the trial judge was arguably wrong."
2. In Collins v Urban at [84] the Appeal Panel adopted the factors suggested in Smith and suggested three additional circumstances where leave may be granted; namely where: 1. there has been 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; 2. there has been a factual error that was unreasonably arrived at and clearly mistaken; or 3. the Tribunal has 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.

Application of those principles here

1. We are unable to ascertain from the Tribunal's orders, reasons or findings any issue of principle or any question of general public importance.
2. It is clear from ZTU's oral submissions at our hearing that she feels that the Tribunal's decision was unjust to her. She has made it plain that she felt aggrieved by the loss of her authority; that is, by the automatic suspension of her position as ZTV's attorney under the Power of Attorney, as a result of the making of the financial management order: s 50(3), Powers of Attorney Act 2003 (NSW).
3. But in order to ground the grant of leave to appeal, a demonstration by the appellant of a sense of personal injustice is not enough. There must be a clear injustice, gauged objectively. There is no such injustice here.
4. Similarly, we think it clear that on any reasonable analysis of the Tribunal's process of determination and its decision, as reflected in its reasons, there is no apparent error of the type described in 58, (2) or (3) above.
5. What is clear is that the Tribunal went about its fact-finding process in an appropriate and indeed in a thorough way.

CONCLUSION AND ORDERS 1. It must follow from our findings and conclusions above that the appeal should be dismissed and leave to appeal refused. 2. We ordered accordingly.

Civil and Administrative Tribunal Act 2013 (NSW) 80 Making of internal appeals (1) … (2) Any internal appeal may be made: (a) in the case of an interlocutory decision of the Tribunal at first instance - with the leave of the Appeal Panel, and (b) in the case of any other kind of decision (including an ancillary decision) of the Tribunal at first instance - as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds.

    38 Procedure of Tribunal generally
    (1) ...
    (2) 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.

Civil and Administrative Tribunal Rules 2014 (NSW) 13 Service, giving and lodgment of notices or documents (1) … … (4) When notice or document taken to be served, given or lodged Unless the contrary is proved, the time at which a notice or document is taken to be served, given or lodged is - (a) in the case of a copy of a notice or document that is posted--at the end of the seventh working day after the date on which the notice or document was posted to the person….

    25 External and internal appeals
    (1) An external or internal appeal (including, where required, an application for leave to appeal) may be made by lodging a notice of appeal.
    …
    (4) Unless the Tribunal grants an extension under section 41 of the Act, an external or internal appeal must be lodged--
            (a) in the case where the enabling legislation specifies the period within which the appeal is to be made--within the period specified, or
            (b) in the case of an internal appeal against a decision made in residential proceedings--within 14 days from the day on which the appellant was notified of the decision or given reasons for the decision (whichever is the later), or
            (c) in any other case--within 28 days from the day on which the appellant was notified of the decision to be appealed or given reasons for the decision (whichever is the later).
    (4A) For the purposes of subrule (4), the day on which reasons are given is the day on which reasons are first given, whether orally or in writing.

Powers of Attorney Act 2003 (NSW) 50 Effect of management of estate (1) … … (3) A power of attorney is suspended while the estate of the principal is a managed estate. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 06 May 2021