ZVN v ZVO

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. It therefore fell to us to decide whether: 1. in reaching its decision to reappoint the Public Guardian, which involved a decision that ZVN was not suitable for appointment as guardian, the Tribunal had fallen into legal error; that is, its decision involved an error of law, in which case ZVN's appeal would proceed as of right; 2. whether we should in any case grant ZVN leave to appeal; and 3. what orders we should make.
3. We decided that the Tribunal's decision was not based on an error of law, that there were no grounds upon which we should grant ZVN leave to appeal and accordingly the appeal should be dismissed. We also decided to make interlocutory orders to deal with the issues raised under the heading "Preliminary matters" below.
4. These are our reasons for those decisions.

Was the appeal out of time?

1. A preliminary issue arose because it appeared that the Notice of Appeal had been 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) ("the NCAT Rules") when read with r 25(4A) of those 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 on which reasons for that decision "are first given, whether orally or in writing".
3. ZVN was first notified of the decision at the conclusion of the hearing on 19 May 2021, but the Tribunal's orders and reasons for decision ("Reasons") were not "first given" to her until they were emailed to her on 31 May 2021.
4. ZVN's Notice of Appeal was not lodged with the Registry until 2 July 2021; some 31 days later. As a result that lodgment was out of time by three days.
5. We considered whether to extend the time by exercise of the power to do that under s 41 of the NCAT Act. It was clear that each of the respondents consented to such an extension. We took into account the circumstances of lodgment and the fact that the default was for only three days.
6. Taking these matters into account, we decided that it was appropriate to extend the time for lodgment to 2 July 2021. We ordered accordingly.

Joinder of party: ZZG

1. We also noted that ZZG had been appointed as financial manager of ZVO, by order of the Guardianship Division dated 23 August 2021. ZZG wished to participate in the hearing and to make oral submissions, in that capacity. It was clearly appropriate to join her as a party and we did so.

Late documentary material

1. The Public Guardian had sent the Registry on 28 September 2021 a copy of a neuropsychological assessment by Ms Z, Clinical Neuropsychologist. This related to an assessment of ZVO on 25 June 2021. As that was subsequent to the Tribunal's orders, the need for us to consider it was not pressed by the Public Guardian and we did not take it into account.

ZVO's non-participation

1. Finally we noted that ZVO herself was not a participant in the appeal hearing but the Separate Representative, Mr De Dassel of Counsel, appointed by a differently constituted Appeal Panel was present.

Errors of law and errors of fact

1. As has been noted in Robinson and Lucy's "NCAT Practice and Procedure", 2nd edition 2020, at [NCATA80.30], p 182, there is no satisfactory test of universal application to define the concept of an error of law.
2. In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 ("Prendergast"), the Appeal Panel set out at [13] the following non-exclusive list of questions of law: 1. whether there had been a failure to provide proper reasons; 2. whether the Tribunal had identified the wrong issue or asked the wrong question; 3. whether a wrong principle of law had been applied; 4. whether there had been a failure to afford procedural fairness, 5. whether the Tribunal had failed to take into account relevant (i.e. mandatory) considerations 6. whether the Tribunal took into account an irrelevant consideration; 7. whether there was no evidence to support a finding of fact; and 8. whether the decision was so unreasonable that no reasonable decision-maker would have made it.

Leave to appeal

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 ("Collins v Urban"). They are the same principles applied by the courts. In Secretary, Department of Family and Community Services v Smith [2017] NSWCA 206, 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. It is clear, from Collins v Urban, BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [20] and Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45], that in order to be granted leave to appeal the applicant must demonstrate something more than that the decision was arguably wrong or that there is some bona fide challenge available to an issue of fact. In Collins v Urban, the Appeal Panel confirmed at [84] that ordinarily, it is appropriate to grant leave only in matters that involve: 1. issues of principle; 2. questions of public importance or matters of administration or policy which might have general application; 3. an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; 4. a factual error that was unreasonably arrived at and clearly mistaken; or 5. the Tribunal having gone about the fact-finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed.

The parties' cases

1. We considered the documentary material lodged by the parties.
2. In the case of the appellant, ZVN, that comprised the Notice of Appeal, a copy of the Guardianship Division's orders and reasons dated 19 May 2021, an initial set of submissions comprising 10 pages which were apparently received with the Notice of Appeal, supplementary submissions received on 12 October 2021, a transcript apparently prepared by or on behalf of ZVN of extracts from the Tribunal hearing and a bundle of documentation apparently comprising material made available to the Guardianship Division for the Tribunal hearing.
3. In the case of the Public Guardian that included a Reply to the appeal and a short submission letter received on 28 September 2021, which attached the neuropsychologist's report referred to at [23] above and a copy of the Tribunal's financial management order for ZVO dated 23 August 2021
4. We also considered extensive oral submissions from ZVN, oral submissions from Mr De Dassel for ZVO and brief submissions from a Principal Guardian at the Office of the Public Guardian and from ZZG in her capacity as ZVO's appointed financial manager.

Obligation to assist an appellant to formulate grounds of appeal

1. As noted above, ZVN was not legally represented and we understood that she is not a practising lawyer. It is well established that in appeals where that is so, the Panel may review the appellant's stated grounds of appeal, the other material before it and the material made available at first instance, in order to ascertain whether a question of law or the basis for the grant of leave to appeal can be discerned from it. The authorities on that point were summarised in the recent appeal of ZTO v Central Coast Local Health District [2021] NSWCATAP 160 at [17]-[23] and useful guidelines were provided in Cominos v Di Rico [2016] NSWCATAP 5 ("Cominos") at [13].
2. The need for some clarification of the grounds of appeal arose in part from the length of ZVN's written submissions and the occasional lack of clarity and overlapping of her grounds of appeal and the way in which she identified the errors of law on which she relied.
3. We were mindful of the warnings given by the Appeal Panel in Cominos that it can be difficult for self-represented appellants to express clearly their grounds of appeal and in particular to identify with reasonable precision an error of law. In that case 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 was done in Cominos and in other Appeal Panel decisions involving appeals from the Guardianship Division, including ZGB v ZGC [2018] NSWCATAP 58 at [27]-[30] and ZAN v Public Guardian [2016] NSWCATAP 20 at [25]-[27], we endeavoured, in part by discussion with ZVN, to clarify the grounds of her appeal and particular asserted errors of law on which she relied.

The appellant's case: errors of law

1. As we understood it, ZVN's case was that in making its decision the Tribunal had made the following errors of law:

(1) Inadequate reasons for decision.

1. ZVN asserted that the Tribunal had failed to set out a reasoning process for its conclusions and in particular the conclusion that she was not suitable to be appointed as guardian because she did not satisfy the requirements of s 17(1)(c) of the Guardianship Act, and it had not applied the s 4 principles and in particular the paramount consideration set out in s 4(a) of that Act; namely the welfare and interests of ZVO.

(2) Lack of procedural fairness.

1. We understood ZVN to assert that she was denied procedural fairness at the hearing, in that she was not given sufficient time to state her case and that the Member had indicated "that there was insufficient time to deal with the issues at hand" and as a result the Member had not "adequately and appropriately" taken ZVO's views into account at the hearing (the latter being also separately asserted as a legal error).

(3) A misapplication of section 17(1) of the Guardianship Act.

1. We understood ZVN to assert that the Tribunal had misapplied s 17(1) of the Guardianship Act and specifically paragraph (c) of that provision, which requires that in order for the proposed guardian to be eligible for appointment, the Tribunal must be satisfied that he or she is "willing and able" to carry out the functions conferred or imposed by the proposed guardianship order. We understood her also to assert that the discretion available to the Tribunal to decide whether to appoint her as guardian had miscarried by reason of that misapplication.

(4) Material finding of fact "against the weight of evidence which resulted in an injustice"

1. ZVN asserted in her first submissions at page 8 that a particular finding of fact was: "against the weight of evidence, which resulted in an injustice,..was unreasonably arrived at and mistaken and resulted in an unfair result".
2. The finding was contained in the Reasons at [31] and ZVN cited it as follows: "Today [ZVO] is strongly opposed to guardianship and I accepted that having a guardianship order has caused her distress. However, I accepted (the Public Guardian's) evidence that [ZVO] was happy to speak with the Public Guardian during a visit and to receive support to manage her life. I formed the view that [ZVO] is open to suggestion and that her views can vary." (Emphasis in original)
3. We take it that the finding complained of is that constituted by the words underlined in ZVN's submissions; that is, the finding that ZVO is open to suggestion and that her views can vary.

(5) Failure to take into account mandatory considerations

1. Although ZVN's written submissions do not make it clear what mandatory consideration or considerations are referred to, we have surmised that this is a reference to the requirements in s 4 of the Guardianship Act and in particular the requirements to give paramount consideration to the welfare and interests of ZVO (s 4(a)) and to take her views into consideration. (For convenience of reference, s 4 of the Guardianship Act is set out fully in the Schedule to these reasons).

The appellant's case: Leave to appeal

1. On the same basis as is explained in [32]-[35] above, a reasonable distillation of ZVN's submissions produces the following possible grounds for leave to appeal. 1. The findings were such (in particular, so contrary to the weight of the evidence) so as to result in a real and clear injustice and so it would be unjust to allow the findings to stand. 2. The factual finding that ZVN was not suitable to be appointed guardian was unreasonably arrived at. 3. The Tribunal's fact-finding method was so unorthodox as to be likely to produce an unfair result.

(1) Inadequate reasons for decision

1. In her written submissions, ZVN cited in part a passage from the Court of Appeal's decision of Resource Pacific Pty Limited v Wilkinson [2013] NSWCA 44 ("Resource Pacific"). The appeal there turned on the adequacy of the reasons provided by the District Court. The case before that Court involved an industrial compensation claim by a mining technician at an underground coal mine in the Hunter Valley. The respondent alleged that he could no longer work due to a psychological or psychiatric disorder which arose from his employment. The District Court Judge had expressed the view that various work-related incidents had been proved but that the issue was one of the plaintiff's response to those events.
2. In the Court of Appeal, Macfarlan JA, dissenting, observed at [76] that he expected the District Court Judge at that stage to have stated whether she accepted or rejected the plaintiff's evidence as to the impact of the particular incidents upon him and to have given reasons for that conclusion. In His Honour's view it was important that the Judge do this because acceptance of that evidence was necessary to establish the assumptions which underpinned the critical medical expert evidence. However the Judge had instead proceeded immediately to her conclusion that the plaintiff had discharged the onus he bore and had found that as a consequence of the asserted work-related incidents he had developed the psychological injury upon which his claim was based. The District Court Judge had not given any reasons for that implicit finding.
3. It was that judgment of Macfarlan JA which was relied upon by ZVN. But His Honour's judgment was in dissent. In the Court of Appeal, the plurality, consisting of Basten JA and Beazley JA (as she then was) found the District Court Judge's reasons for decision to have been adequate. They said, at [48]: "The High Court has described 'the requirement to give reasons ... as 'an incident of the judicial process', subject to the qualification that it is a normal but not a universal incident': Public Service Board of New South Wales v Osmond [1986] HCA 7; 159 CLR 656 at 667 (Gibbs CJ), …Not only is the obligation not universal in nature, but it is variable in its content. When an appellate court is invited to find that a trial judge provided inadequate reasons, it is important to understand the nature of the function being invoked. It is not the function of an appellate court to set standards as to the optimal, or even desirable, level of detail required to be revealed in reasons for judgment. Rather it is to determine whether the reasons provided have reached a minimum acceptable level to constitute a proper exercise of judicial power. Transparency in decision-making is an important value, but it is not cost free, and may involve separate parameters of quantity and quality."
4. In Whisprun Pty Ltd v Dixon [2003] HCA 48; 77 ALJR 1598 at [62]-[63], the High Court considered the issue of what might constitute inadequacy of reasons. The plurality (Gleeson CJ, McHugh and Gummow JJ) described the trial judge's obligation properly to consider a party's case as a "paramount duty" but their Honours went on to say, at [62]: " A judge's reasons are not required to mention every fact or argument relied on by the losing party as relevant to an issue. Judgments of trial judges would soon become longer than they already are if a judge's failure to mention such facts and arguments would be evidence that he or she had not properly considered a losing party's case."
5. That reasoning was explained and applied by the Court of Appeal in Baker v David [2015] NSWCA 235 ("Baker") by Meagher JA, with whom McColl JA and Sackville JA agreed, at [24]. Meagher JA observed that the "paramount duty" of any trial judge to consider each party's case does not mean that the judge has to deal with every argument and issue that might arise in the course of a case.
6. Moreover, Meagher JA's observations in relation to facts and arguments have been applied equally to evidence: see Stoker v Adecco Gemvale Constructions Pty Ltd & Anor [2004] NSWCA 449 ("Stoker"), per Santow JA with whom Mason P and Sheller JA agreed. His Honour confirmed that without adequate reasons, justice has not been seen to be done, so that failure to give them may be an error of law. But he went on, at [41], to observe that that: ".. does not require the trial judge to spell out in minute detail every step in the reasoning process or refer to every single piece of evidence. It is sufficient if the reasons adequately reveal the basis of the decision, expressing the specific findings that are critical to the determination of the proceedings."
7. As was confirmed by the plurality in Resource Pacific, in assessing the adequacy of reasons for decision it is important to understand the nature of the function being invoked. So, in assessing the adequacy of Guardianship Division reasons, regard can properly be had to the nature of the function being invoked that Division and its established and recognised informality of procedure.
8. The NCAT Act permits the Tribunal (in all its Divisions) to determine its own procedure, at least in a way which is not inconsistent with the Act or any procedural rules. Except in specific hearings it is not bound by the rules of evidence and proceedings in any of the Tribunal's divisions are required to be conducted relatively informally: see ss 38(1)-(3) and 38(4) of the NCAT Act. Significantly s 38(4) of the NCAT Act requires that: 38 Procedure of Tribunal generally … The Tribunal is to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.
9. Of course none of that diminishes the importance of proper and adequate reasons, but the judgments and observations cited above certainly assist in establishing a standard by which the adequacy of reasons for decision in the Guardianship Division may properly be assessed.
10. In this case, on a full and fair reading of the Tribunal's reasons for decision against the background of the functions and processes properly applicable to the Guardianship Division's conduct of a review of a guardianship order, we concluded that the reasons do meet the standards of adequacy set by the leading cases, including Baker and Stoker. The Tribunal's reasons reveal, to an adequate level, the basis of the decision made on each relevant issue and each major finding.
11. The reasons therefore satisfy the minimum acceptable level established by the leading authorities.
12. There was no error of law in this regard.

(2) Lack of procedural fairness

1. We considered the partial transcript of the Tribunal's hearing provided by ZVN. We also considered the full sound recording of that hearing. Quite properly, ZVN's transcript did not purport to be a transcript of the full hearing and we understand the parts extracted and transcribed by her were principally those on which she relied in making her case on appeal.

Insufficient time for ZVN to present her case

1. ZVN firstly claimed that she was not afforded procedural fairness because she was not afforded sufficient time to present her case. She asserted at page 7 of her first written submissions that the Member had emphasised: "…that there was insufficient time to deal with the issues at hand."
2. But the sound recording reveals no such phrase or one closely resembling it being used by the Member.
3. The sound recording also demonstrates the following matters. 1. In a hearing which, even taking into account formalities such as connection time and introductions, lasted approximately 75 minutes, (which may be regarded as reasonably usual for such a review hearing), ZVN was given the right to make oral submissions and any explanations for just under 34 minutes in total. That appears to us to be a reasonable time in which to present her views. 2. ZVN also provided two separate sets of substantial written submissions. The Member indicated to the participants that she would take those submissions into account in reaching her decision. 3. On a number of occasions the Member asked ZVN to clarify or summarise what she was contending, but on some of those occasions the Member's requests went unheeded. There were other occasions when ZVN clearly "spoke over" the Member; in that she interrupted the Member before the conclusion of the Member's statement, request or explanation. Whilst we accept that that "talking over" another participant can occur unintentionally in hearings conducted by telephone because of such factors as the quality of the telephone connection, it is clear that there were at least some occasions when the Member's comments or explanations to the participants were unnecessarily interrupted by ZVN. 4. There were also occasions when the Member requested ZVN to "return to the point" in addressing the main issues. In doing so the Member made it clear that an important issue was ZVN's own suitability to be appointed as guardian. ZVN complied with the Member's suggestion on some but not all occasions. 5. After ZVN had been speaking for a total of over 27 minutes, about 10 minutes from the end of the hearing, the Member invited her to "finish up" her submissions fairly promptly. The Member emphasised that the hearing needed to end by 5pm, that she understood the points which ZVN was making, that she would take into account the information which ZVN was attempting to convey and that she intended to briefly adjourn to consider her decision. ZVN was then allowed to continue to speak for a further few minutes. 6. The Member then briefly adjourned and on resumption announced her decision. 7. The following exchange then took place: "[ZVN]: 'I think the time was limited. We didn't have enough time to discuss what was in these reports.' Member: 'Yeah, as I've read them, so I can't really talk about it any further.' [ZVN]: 'There's a lot of things I know that is in these reports that is not correct.' [Member]: 'Thank you. With all due respect I need to end the call now so thank you very much.'"
4. The Member then concluded the hearing.
5. On any reasonable assessment of this material, ZVN was given a reasonable time opportunity to present her case.

Inadequate consideration of the subject person's views

1. ZVN also asserted, under this heading, that the Member had not "adequately and appropriately" taken ZVO's views into account. The recording of proceedings demonstrates that that claim must fail. The Member spoke to ZVO at the commencement of the hearing and ZVO was given the opportunity to state her view, which she did clearly over what appears to be a period of five or six minutes. The Reasons record the Member's summary and assessment of those views, particularly at [7], [8], [20], [25], [31], [34] and [44].
2. We conclude that the Member did give adequate consideration to the views of the subject person. ZVN's submissions in this regard appear to be based on the premise that the Tribunal's obligation, under s 4(d) of the Guardianship Act and generally, is to comply with the views of the person with a disability or at least to reach decisions or findings of fact which are compatible with those views. That of course is not the case.
3. We could discern no other basis on which the appellant asserted that she or ZVO had been denied procedural fairness.
4. There was no error of law in this regard.

(3) Error of legal principle: misapplication of section 17(1) of the Guardianship Act

1. This appeared to be ZVN's central contention. As we understand it, the contention was that in failing to find her "willing and able to exercise the functions conferred or imposed by the proposed guardianship order" for the purposes of s 17(1)(c) of the Guardianship Act the Tribunal had misapplied the provision.

The three findings pertinent to application of section 17(1) of the Guardianship Act

1. ZVN asserted that that misapplication of s 17(1) of the Guardianship Act was based on three separate but related findings set out at [41] and [42] of the Reasons which she says were made in error. They were the findings that ZVN: 1. "did not demonstrate appropriate insight into [ZVO]'s support needs" (Reasons at [41]); 2. "did not demonstrate the ability to weigh up the various recommendations of health professionals" ([Reasons at [42]); and 3. "had a fixed view about what was the best for [ZVO]" (Reasons at [42]).
2. Each of those findings is a finding of fact. We understood ZVN to contend that each such finding led to a misapplication of s 17(1) of the Guardianship Act so as to constitute an error of law.
3. In Prendergast at [13], the Appeal Panel, having reviewed the authorities, concluded that a finding of fact can give rise to an error of law only where there was no evidence to support that finding. It is true that, as the Appeal Panel itself observed, it was not expressing exhaustively all possible questions of law. But the law in this regard is clear and it was confirmed by Beazley J (as she then was) on behalf of the Court of Appeal in Walsh v Visionstream [2004] NSWCA 104 at [23], where Her Honour confirmed that: "In my opinion, it is not possible to convert a wrong finding of fact into a question of no evidence upon which the finding could be made (which was wrong). Nor does it assist to formulate the matter in the way put by counsel, namely that the trial judge made factual findings, which were wrong, upon which to determine the question posed by the legislation."
4. So the three findings of fact relied upon by ZVN will not give rise to the error of law asserted by ZVN (being the misapplication of s 17(1) of the Guardianship Act as pleaded) unless there was no evidence at all upon which each of the threed findings described at [69] above could have been made. In short, it will be fatal to ZVN's case in this regard if there was evidence before the Tribunal upon which the relevant findings could have been made.
5. Was there such evidence? In our view there was.
6. The first finding, that ZVN did not demonstrate appropriate insight into ZVO's support needs, was based on what is said at [41] of the Reasons, clearly based on ZVN's written submissions (including those which can properly be regarded as comprising evidence as opposed to legal submissions) and her oral evidence. The second is similarly based and appears to be a conclusion as to the viability of some of ZVN's lay criticism of the expert clinical evidence. Additionally, the Reasons at [42] refer to specific elements of ZVN's evidence relevant to the finding. The third finding constitutes an assessment of ZVN's view, which, on the basis of our consideration of the full recording of the hearing and reading of ZVN's written submissions in full, we conclude was reasonably open to the Member.
7. The Reasons which deal with the issue of who should be appointed as guardian (particularly [35] to [46]) when read as a whole, reveal that the Member turned her mind to appropriate aspects of the evidence in making each of the three findings.

Tribunal's application of section 17(1) of the Guardianship Act generally

1. For completeness, we confirm that we were satisfied that the Member explained the content of s 17(1) of the Guardianship Act to the participants in reasonable detail so as to give them a reasonable understanding of the section and that the Member applied the section correctly and in accordance with the accepted law as to its application.
2. In particular, the recording and the related transcript at 1:06:00 and following (foot of page 11 and page 12 of the typed transcript provided by ZVN) reveals that the Member went into substantial detail in describing to ZVN and the other participants the issues which she had to consider in applying s 17(1) of the Guardianship Act.
3. Significantly, that section of the transcript also reveals that the s 17(1) of the Guardianship Act issues were squarely put to ZVN, but as is clear from the remaining part of page 12 of the transcript, through to 1:12:09 on page 13, ZVN in response did not address those issues or her suitability as guardian, but instead continued her detailed criticisms of the relevant professional evidence, in particular the assessments and reports as to ZVO's condition.
4. We observe that it would have been preferable for the Reasons to have specified with greater precision the evidence upon which the Member relied in making each specific finding under consideration, although that does occur to some extent, for example in the Reasons at [41] and [42]. However that defect does not alter our conclusions that there was appropriate evidence to justify each such finding and that s 17(1) of the Guardianship Act was properly applied.
5. There is no error of law revealed by this ground.

(4) Material finding of fact "against the weight of evidence which resulted in an injustice"

1. As discussed at [44] above, we understand that the "material error or finding of fact" referred to is that ZVO is open to suggestion and that her views can vary.
2. The finding referred to appears at Reasons [31]. It is clearly related to the issue of whether a further guardianship order should be made and the conclusion that such an order should be made. We did not understand that that was in issue in the appeal: see [9] above.
3. Be that as it may, for the reasons we have explained at [69] and [70], a finding of fact can give rise to an error of law only where there was no evidence to support that finding. There clearly was evidence before the Tribunal to support its finding that ZVO is open to suggestion and her views can vary and it is equally clear that the Member took that evidence into account in making this finding.

(5) Failure to take into account mandatory considerations

1. As discussed above at [43], although ZVN's written submissions do not make it clear what mandatory consideration or considerations are referred to, we have surmised that this is a reference to the principles set out in s 4 of the Guardianship Act; in particular the requirements to give paramount consideration to the welfare and interests of ZVO (s 4(a) of that Act) and to take her views into consideration (s 4(d) of that Act).
2. The recording and the Reasons indicate that these matters were considered. For example, the need to take ZVO's welfare and interests into account is explained by the Member at Reasons [24] and they are discussed clearly at [33]. We have concluded at [63] above that the Tribunal adequately took into account ZVO's views.
3. There is no error of law as asserted.

(6) A decision so unreasonable that no reasonable decision-maker would have made it.

1. The Tribunal's decision was unfavourable to ZVN and she strongly disputes it. But that does not make the decision unreasonable to the very high standard required in order to establish an error of law. In our view the decision was not so unreasonable that no reasonable decision-maker would have made it, so there is no error of law as asserted.

CONSIDERATION: LEAVE TO APPEAL

1. We have discussed the principles governing an application for leave to appeal at [26]-[27] above.
2. We are unable to ascertain from the Tribunal's orders, reasons or findings any issue of principle or any question of general public importance.
3. It is clear from ZVN's written and oral submissions that she feels that the Tribunal's decision was unjust to her. She has made it plain that she felt aggrieved by the decision. 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 29] or [29(5)] above. It is clear is that the Tribunal went about its fact-finding process in an appropriate way.

CONCLUSION

1. It must follow from our findings and conclusions above that the appeal should be dismissed and leave to appeal refused. Accordingly, we made the following formal orders.

ORDERS 1. Leave to appeal refused. 2. Appeal otherwise dismissed. 3. Time for lodgment of appeal extended to 2 July 2021. 4. ZZG joined as Third Respondent.

APPENDIX: Civil and Administrative Tribunal Act 2013 (NSW) 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. 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: 02 March 2022