ZXH v ZXI

Publication of names of people involved in the appeal

1. The publication or broadcast of the name of any person mentioned or otherwise involved in an "internal appeal" against decisions made by the Guardianship Division of NCAT is prohibited: Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), ss 65(1) and 65(2). Being an official report of the appeal proceedings, that prohibition does not apply to these reasons: NCAT Act, s 65(3). Nonetheless, because of the sensitive nature of the matters discussed in these reasons, we will not refer to the parties by name.
2. In this appeal, the Registrar assigned pseudonyms to the parties: 1. "ZXI", the Subject Person 2. "ZXH", the appellant and the Subject Person's nephew 3. "ZXM", the Subject Person's son and carer 4. "ZXN" the Subject Person's son.
3. For ease of reading, in these reasons we will not use these pseudonyms but will refer to ZXI, ZXH, ZXM and ZXN as "the Subject Person", "the appellant", "the Resident Son", and "the Son" respectively.

Grounds of appeal

1. A party has a right to appeal against a decision made by the Tribunal on any question of law or, with the leave of the Appeal Panel, on any other ground: NCAT Act, s 80(2)(b).
2. The Notice of Appeal, lodged on 2 January 2022, listed 18 grounds of appeal each said to raise a question of law. Many simply express disagreement with decisions made by the Public Guardian, in particular, the decision that the Subject Person be cared for by the Resident Son. As explained during the hearing of this appeal, the Appeal Panel does not have power to review the merits of that decision and for that reason we will not address that issue in these Reasons. An "interested person" aggrieved by a decision made by the Public Guardian may apply to NCAT's Administrative and Equal Opportunity Division for "administrative review" of that decision: Administrative Decisions Review Act 1997 (NSW) s 55(1); Guardianship Act 1987 (NSW), s 80A; Guardianship Regulation 2016 (NSW), reg 17.
3. The notice of appeal, together with the appellant's written and oral submissions, appeared to identify the following questions of law: 1. whether there was "no evidence" for the findings made by the Tribunal: 1. that there was "entrenched animosity" within the family: Reasons at [33] 2. that the Subject Person "has consistently advised the treating team that she does not want her nephew, [the appellant], involved in decision making" Reasons at [25] 3. that, if appointed financial manager for the Subject Person, the appellant and the Son "would likely not pay for services or sign aged contracts if the Public Guardian made decisions they did not agree with": Reasons at [58] 1. whether, in appointing the Public Guardian as guardian for the Subject Person, the Tribunal misapplied ss 17 and 15(3) of the Guardianship Act 2. whether the Tribunal failed to give adequate reasons for its decision not to appoint the appellant and/or the Son as the Subject Person's guardian 3. whether in deciding to commit the management of the Subject Person's estate to the Trustee, the Tribunal failed to observe the principles in s 4 of the Guardianship Act.

Appointing a guardian: statutory framework

1. Contained in Div 4 of Pt 3 of the Guardianship Act ("Assessment and review of guardianship orders"), s 25(2)(a) requires the Tribunal to review any guardianship order at the request of any person entitled to request a review of the order. The guardian, the person under guardianship and "any other person who, in the opinion of the Tribunal, has a genuine concern for the welfare of the person under guardianship", is entitled to request a review of a guardianship order 25B of the Guardianship Act. On reviewing an order following a request for review, the Tribunal may vary that order, suspend or revoke that order, confirm that order, or renew, or renew and vary that order: Guardianship Act, s 25C(1).
2. Where, as here, the Tribunal makes a continuing guardianship order, s 15(3) of the Guardianship Act instructs that the Tribunal must not appoint the Public Guardian where another person can be appointed as the guardian: 15 Restrictions on Tribunal's power to make guardianship orders ... (3) A continuing guardianship order appointing the Public Guardian as the guardian of a person under guardianship shall not be made in circumstances in which such an order can be made appointing some other person as the guardian of the person. ...
3. Before appointing a person to act as the guardian of the person under guardianship, the Tribunal must satisfy itself that the proposed guardian satisfies each of the three matters listed in the Guardianship Act, s 17(1): 17 Guardians (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.
4. Section 17(1) of the Guardianship Act does not apply to the appointment of the Public Guardian (s 17(2)).

General principles

1. Section 4 imposes a duty on anyone exercising functions under the Guardianship Act, including the Tribunal and any appointed guardian, to observe the principles in s 4 of that Act (the section 4 principles): 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.

Ground 1: no evidence

1. The appellant contends there was no evidence to support three findings made by the Tribunal: 1. that there was "entrenched animosity within the family" 2. the Subject Person "has consistently advised the treating team that she does not want her nephew [the appellant] involved in decision making" 3. if appointed financial managers for the Subject Person, the appellant and the Son might not "pay for services or sign aged contracts if the Public Guardian made decisions they did not agree with".
2. For convenience we address the last of these findings under Ground 4 below.
3. Before considering the submissions made for the appellant, it is necessary to consider the reasons given by the Tribunal for appointing the Public Guardian as guardian for the Subject Person.

Decision under appeal: the guardianship order

1. At [10]-[14], the Tribunal considered whether the Subject Person remained a "person in need of a guardian". The Tribunal noted that 10 weeks earlier, a differently constituted Tribunal found that the Subject Person was "unable to make important life decisions due to her cognitive impairment": Reasons at [12]. In summarising the available medical evidence, the Tribunal referred to the Subject Person's diagnosis of "vascular dementia which impacts her ability to make executive decisions", and, the results of a recent cognitive assessment, which revealed that the Subject Person was "disoriented and had poor recall of information". At [13], the Tribunal recorded the opinion of one of the hospital doctors that the Subject Person "does not have capacity to make complex decisions and lacks insight into her cognition". At [15], the Tribunal concluded that because of her disability, the Subject Person "remains at least partially incapable of managing her person and this prevents her from making important life decisions" and, as a result, the Tribunal could make a further guardianship order.
2. The Tribunal went on to explain why it decided to renew and vary the initial guardianship order, stating at [19]: "[19] There is significant conflict within the family, which has escalated markedly since the previous hearing in September 2021. We acknowledge that making a further order may impact upon [the Subject Person's] important relationships with her children and other members of her extended family. However, this is outweighed by the need to protect her from abuse, neglect and exploitation. Given the differing views within the family regarding who should provide care to [the Subject Person] once she is discharged from hospital, we concluded that it was not practicable to provide services to her without renewing the order. [The Subject Person] was admitted to hospital for social reasons and the guardians cannot agree on a discharge option."
3. At [22], the Tribunal explained why it decided to retain the accommodation and services functions, which been conferred under the initial guardianship order, and to add to four additional functions: "access to others", "authorise others", health care and authority to consent medical and dental treatment on behalf of the Subject Person: "[22] We decided that the guardian continues to require an accommodation function, with the ability to authorise others to take, keep or return [the Subject Person] to a place. While there was general consensus that [the Subject Person] is able to return home with additional services, her family disagree about who should live with her and provide care. It was clear that [the Subject Person] requires 24 hour care and supervision, whether that is provided by family or paid carers. We considered there was a high risk [the Subject Person] may not be returned to her accommodation after spending time with family given the animosity within the family. The additional authority to take, keep or return her to a place is warranted. This authority should be used sparingly and only as a last resort. An access function is also needed as it is not practicable for the family to make access arrangements informally given the disharmony between them. We accepted the consistent and compelling evidence that the treating team has experienced significant difficulty negotiating access during [the Subject Person's] current admission. They established a roster but family members did not adhere to it. Health care and medical and dental treatment functions are required to ensure there is clarity around decision making responsibility. [The Resident Son] has been acting as person responsible but other family members are dissatisfied with this arrangement. We decided a services function should be included to ensure [the Subject Person] receives the support she requires following discharge. [The Subject Person] has been resistant to personal care services in the past and it appears her son, [the Resident Son] was not as proactive about arranging them as he could have been."
4. At [23]-[34] the Tribunal considered who should be appointed as the Subject Person's guardian.
5. At [23] the Tribunal stated that the relationship between the current guardians "has now broken down" and it was "clear it was not practicable to reappoint all three as they cannot work together".
6. At [26]-[30], the Tribunal summarised the relevant provisions of the Guardianship Act and the governing legal principles relating to the appointment of a guardian. After referring to the terms of s 17(1) of that Act, the Tribunal observed at [27] "in deciding whether a person is able to undertake the role of guardian, the Tribunal must consider whether the proposed guardian is able, having regard to the circumstances, to exercise the functions in accordance with the principles set out in s 4 of the Guardianship Act".
7. At [31],[32], the Tribunal summarised the report tendered by the NSW Ageing and Disability Commission (the Commission): 1. since May 2021, five reports had been made to the Commission stating that the Subject Person was "experiencing neglect at home, with particular concern at her weight loss over the past six months" and that the Resident Son "was unable to provide the care she needed, and may be an impediment to addressing her support needs adequately" 2. the most recent of those reports, alleged that the Son had said that he "would kill [the Subject Person] if he was required to leave her home" 3. in a meeting with a manager of the Commission held two days before the NCAT hearing, the Subject Person said: 1. that she wanted to go home 2. that she acknowledged that she needs assistance at home, including with personal care 3. that she did not feel unsafe at home or with the Resident Son 4. that the Resident Son had not threatened to harm her or caused property damage, although he had put a hole in the wall of her hall in her home 5. that she did not want the appellant making decisions for her and was unsure who she would want to make decisions. 1. the Commission would have concerns if the Subject Person returned home without support services or if services were refused.
8. At [33], the Tribunal gave these reasons for deciding not to reappoint any of the current guardians: "[33] After having regard to the documentary and oral evidence before us, we were not satisfied that [the Resident Son, the Son and the appellant] were capable of making decisions in [the Subject Person's] best interests in accordance with the principles set out in s 4 of the Guardianship Act. [The Subject Person] would likely not have continuing contact with all family members if [the Resident Son, the Son and/or the appellant] were appointed. We considered access would continue to be a problem due to the entrenched animosity within the family. We concluded [the Resident Son, the Son and the appellant] did not meet the requirements to be appointed as [the Subject Person's] guardians."
9. Noting that there was no other person available to be appointed as guardian, the Tribunal appointed the Public Guardian.

No evidence: entrenched animosity finding

1. The appellant contends that there was no evidence before the Tribunal of entrenched animosity between all members of the family. Rather he contends the available evidence revealed that all members of the family (the son, the daughter and himself), except the "negligent family member" (the Resident Son) have been in "full harmonious agreement" about matters relating to the welfare of the Subject Person. In particular, he said that all members of the family agreed that on discharge from hospital the Subject Person should not return to be cared for by the Resident Son.
2. In addition, the appellant contends that the Tribunal failed to appreciate that the family conflict was relatively recent and was triggered by the decision made by the Resident Son on 14 October 2021 to renege on the agreement he reached with the Son and the appellant. Under that agreement, the Resident Son had agreed to move to alternative accommodation for a period. In turn the Son and the appellant had agreed to provide respite care to the Subject Person, to arrange additional services to be provided to the Subject Person, and to undertake necessary repairs to her home. However, on 14 October 2021 when the Son and the appellant arrived as agreed to provide respite care, the Resident Son refused to permit them to enter the house, or to see the Subject Person. Concerned for her health and safety, the Son called an ambulance and the Subject Person was later taken to hospital.

Consideration

1. The challenge to this finding appears to rest on the premise that the Tribunal misapprehended the nature of the "entrenched animosity within the family". The appellant contends that the Tribunal failed to appreciate that the animosity was not widespread but rather was confined to the Resident Son and other family members.
2. The Tribunal used the expression "entrenched animosity within the family" in the context of explaining why it found that none of the guardians were "capable of making decisions in [the Subject Person's] best interests in accordance with the principles set out in s 4 of the Guardianship Act". Paragraph [33] in which that statement appears is reproduced at [28] above.
3. The following extracts from the Reasons do not support the proposition that there was no evidence to support the entrenched animosity finding or, in the alternative, that the Tribunal misapprehended the nature and scope of the animosity within the family: 1. the applicant social worker reported that there are "differing views between the [Resident Son] and the other guardians [the appellant and the Son] regarding where the [Subject Person] should live, who should be providing her with a level of care she requires … and who should be managing her affairs": Reasons at [4] 2. in their application to NCAT seeking a review of the initial guardianship order, the appellant and the Son requested that the Resident Son be removed and that they continue as guardians for the Subject Person. In that application, the appellant and the Son had claimed that the Resident Son had resisted their efforts to provide "proper care" to the Subject Person: Reasons at [5] 3. in an application to NCAT seeking a financial management order for the Subject Person, the Son claimed that family members feared that the Resident Son was "misusing his mother's money": Reasons at [6] 4. the guardians cannot agree on a discharge plan for the Subject Person: Reasons at [19] 5. given the "differing views within the family", it was not practicable for the Subject Person to be provided services after discharge "without renewing the guardianship order": Reasons at [19] 6. the appellant, the Son and the daughter "expressed particular concern about the [Subject Person's] weight loss and claimed that the [Resident Son] was isolating [the Subject Person] from other members of the family": at [20] 7. the Resident Son opposed the appellant and the Son continuing to act as the Subject Person's guardian: at [24] 8. the daughter supported the appellant and the Son continuing to act as the Subject Person's guardian: at [22] 9. the "relationship between the [Resident Son] and the other guardians had broken down" and "it was not practicable to reappoint all three as they cannot work together": at [23].
4. The above summary indicates that the Tribunal appreciated that the conflict within the family did not extend to all members but was limited to that as between the Resident Son and all other members of the family. The appellant has not taken us to any part of the Reasons to suggest otherwise.
5. With respect to the contention that the Tribunal mistakenly assumed that the entrenched animosity predated 14 October 2021, the Tribunal made no express finding on that point. However, even if accepted that the Tribunal found that the entrenched animosity predated 14 October 2021, it could not reasonably be said that it was a finding made without evidence. The appellant's own evidence arguably would support that finding. See, for example, the email sent to the hospital on 17 October 2021, referring to the appellant having "been on the elder abuse hotline since May [2021] about my concerns".
6. The inference the appellant urges us to draw from the Tribunal's use of the expression "entrenched animosity" is not borne out by the Reasons. The contention that there was no evidence for the entrenched animosity finding is rejected.

No evidence: the Subject Person "has consistently advised the treating team that she does not want her nephew, [the appellant], involved in decision making"

1. The appellant does not dispute, as found by the Tribunal (at [25]), that the Subject Person has "consistently advised the [hospital] treating team that she does not want her nephew, [the appellant], involved in decision making". Rather he contends that the Tribunal failed to appreciate the circumstances in which the Subject Person made that comment, namely where she wanted to return home, and where she had been told by the Resident Son that the appellant was responsible for her being admitted to and remaining in hospital. In addition, he contends that the Tribunal failed to have regard to the fact that over many years he and his aunt enjoyed a close and loving relationship, have never been in conflict, and share common values and religious beliefs.

Consideration

1. The primary reason given by the Tribunal for deciding not to appoint the appellant (and the other proposed guardians), was because it was not satisfied that any of the proposed guardians were "capable of making decisions in [the Subject Person's] best interests in accordance with the principles set out in s 4 of the Guardianship Act": at [33]. It is evident that in that statement the Tribunal was referring to the ability of the proposed guardians to exercise the access function (to decide who had access to the Subject Person), which it referred to in the sentence immediately following: "We considered access would continue to be a problem due to the entrenched animosity within the family": at [33].
2. The Tribunal did not state that the comment made by the Subject Person that she did not want the appellant to be involved in making decisions on her behalf played a role in its decision not to appoint the appellant as the Subject Person's guardian. Nor could that inference reliably be drawn from the Reasons. Paragraph [33] makes clear that the Tribunal concluded that each of the proposed guardians were disqualified from appointment for the same reason: because the Tribunal was not satisfied that they were able to exercise the access function. Similarly, the Tribunal found that all of the proposed managers was unsuitable for appointment for the same reason: because of concern that they might not fund decisions made by the Public Guardian that they disagreed with. The Subject Person's view about whether her sons should or should not make decisions on her behalf, played no role in the Tribunal's decision not to appoint them as her guardian or manager.
3. The contention that there was no evidence for the impugned finding is rejected.

Ground 2: misapplication of ss 17 and/or 15(3) of the Guardianship Act

1. The appellant contends that by appointing the Public Guardian as guardian for the Subject Person, the Tribunal misapplied ss 17 and 15(3) of the Guardianship Act. He argues that in circumstances where two suitable family members were willing to act as guardian for the Subject Person, by appointing the Public Guardian the Tribunal failed to give effect to the evident purpose of s 15(3) of the Guardianship Act, that the Public Guardian is the guardian of last resort and can only be appointed where no suitable person is available to act as guardian.

Consideration

1. As the appellant correctly points out, s 15(3) of the Guardianship Act instructs that the Tribunal must not appoint the Public Guardian for a person under guardianship "in circumstances in which such [a guardianship] order can be made appointing some other person as the guardian of the person". Sections 16(1)(a) and 17(1) stipulate the criteria for appointment as guardian for a person (but not the Public Guardian): to be 18 years or more (s 16(1)(a)) and to satisfy the criteria in s 17(1) of the Guardianship Act.
2. Section 17(1) of the Guardianship Act states "a person shall not be appointed as the guardian of a person under guardianship unless the Tribunal is satisfied" (emphasis added) that that person satisfies each of the matters listed in paras (a), (b) and (c) of s 17(1). Here the Tribunal found that none of the proposed guardians satisfied the second limb of para (c) of s 17(1) - to be "able to exercise the functions conferred … by the proposed guardianship order" (emphasis added) - reasoning that none was able to exercise one of the functions conferred under the order, namely, the access function: at [33]. Having made that finding it was not open to the Tribunal to appoint any of the proposed guardians.
3. The evident purpose of s 15(3) of the Guardianship Act is to ensure that the Public Guardian is not appointed in circumstances where some other person is available, who satisfies the criteria for appointment. That provision cannot be read, as the appellant appears to suggest, to require the Tribunal to appoint a person other than the Public Guardian, in circumstances where that person does not satisfy the statutory criteria for appointment.
4. The contention that the Tribunal misapplied ss 15(3) and 17(1) of the Guardianship Act is rejected.

Ground 3: adequacy of reasons

1. By Ground 3, the appellant contends that the Tribunal failed to give adequate reasons for its decision not to appoint him and/or the Son as guardian for the Subject Person. He contends that the Tribunal failed to address the evidence he provided demonstrating his suitability for the role. In particular, he refers to the evidence of his long and close relationship with his aunt and the history of him providing care and support to his elderly parents over many years in a dedicated and conscientious manner.
2. Further, he contends that the Tribunal failed to give adequate reasons for its decision not to appoint the Son as guardian. He points out that, in contrast to himself, there was no evidence to suggest that the Subject Person did not wish the Son to be involved in decision-making which concerned her.

Nature of the obligation to give reasons

1. The Tribunal was required to give written reasons for its decision: NCAT Act, cl 11, Sch 6. Section 62(3) of that Act provides that a written statement of reasons must set out1: 62 Tribunal to give notice of decision and provide written reasons on request … (a) the findings on material questions of fact, referring to the evidence or other material on which those findings were based; (b) the Tribunal's understanding of the applicable law; and (c) the reasoning processes that lead the Tribunal to the conclusions it made.
2. In New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231 (Orr), Bell P (as His Honour then was), in considering the nature of the Tribunal's obligation to give reasons, stated at [66] that the function of an appeal court in the context of appellate review is "to determine not the optimal level of detail required in reasons for a decision but rather the minimum acceptable standard", citing Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 at [48]. Referring at [67] to the statement made by Basten JA in that decision at [48], that "[t]ransparency in decision-making is an important value, but it is not cost free, and may involve separate parameters of quantity and quality", Bell P commented that the "identification of separate parameters of quantity and quality is, with respect, a useful one".
3. At [70] Bell P went on to state that the "sheer volume of work undertaken by tribunals is such that a perhaps more relaxed standard of review of reasons with corresponding compensation for linguistic infelicities is appropriate than may be the case when an appellate court is hearing an appeal from another court". Bell P, however, acknowledged that there are "certain minimum characteristics that a Tribunal's reasons must possess" which, in relation to NCAT, are supplied by s 62(3) of the NCAT Act. The President stated at [72] that while s 62(3) of the NCAT Act provides a "useful starting point, it still leaves for consideration the question as to the quality and detail of the reasoning process that must be exposed".
4. At [77] Bell P summarised statements from well-known administrative law decisions, which in his opinion provided further guidance about what constitutes adequate reasoning by a tribunal: "(i) 'Decision-makers commonly express their reasons sequentially; but that does not mean that they decide each factual issue in isolation from the others. Ordinarily they review the whole of the evidence, and consider all issues of fact, before they write anything. Expression of conclusions in a certain sequence does not indicate a failure to consider the evidence as a whole': Re Minister for Immigration and Multicultural Affairs, Re; Ex parte Applicant S20/2002; Appellant S106/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 30; 77 ALJR 1165 per Gleeson CJ at [14] (Ex parte Applicant); (ii) the court should not read passages from the reasons for decision in isolation from others to which they may be related: Re Maria Politis v Commissioner of Taxation [1988] FCA 739 at [14]; [1988] FCA 446; 20 ATR 108 at 111; (iii) the reasons must be read fairly and as a whole: Ex parte Applicant at [147] per Kirby J; Wu Shan Liang at 291; Bisley at 251; (iv) the reasons recorded ought not to be inspected with a fine tooth-comb attuned to identifying error: Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456; (1993) 43 FCR 280 at 287; [1993] FCA 456 (Pozzolanic) at 287; Wu Shan Liang at 272, 291; (v) there should be a degree of tolerance for looseness in the language of the tribunal, unhappy phrasing of the tribunal's thoughts or verbal slips: Pozzolanic at 287, Wu Shu Liang at 272 and 291."

Consideration

1. At [26]-[30], the Tribunal set out its understanding of the law relating to the appointment of guardians. At [33] of the Reasons, reproduced at [28] above, the Tribunal set out the central finding given for its decision not to appoint any of the proposed guardians, because it was not satisfied that any "were capable of making decisions in [the Subject Person's] best interests in accordance with the principles set out in s 4 of the Guardianship Act".
2. The authorities have consistently cautioned against reading a passage, such as para [33], in isolation from other parts of the Reasons to which it relates. The reasoning path which led the Tribunal to conclude that there was "entrenched animosity with the family" and that the Subject Person would "not have continuing contact with all family members" if any of the proposed guardians were appointed, is contained in several parts of the reasons. For example, at [18], the Tribunal referred to the Subject Person's wish to "be able to see her family". At [22] the Tribunal explained that an access function was needed "as it is not practicable for the family to make access arrangements informally given the disharmony between them". The Tribunal accepted "the consistent and compelling evidence that the treating team has experienced significant difficulty negotiating access during [the Subject Person's] current admission".
3. Read fairly, and as a whole, the Reasons disclose the reasoning path which led the Tribunal to conclude that it was not satisfied any of the proposed guardians satisfied the second limb of s 17(1)(c) of the Guardianship Act and the central findings on which that conclusion were based.
4. The contention that the Reasons were inadequate is rejected.

Ground 4: failure to have regard to the section 4 principles

1. By Ground 4, the appellant contends that in committing the estate of the Subject Person to the management of the Trustee, the Tribunal failed to observe the section 4 principles, in particular para (a): "to give paramount consideration to the welfare and interests of the Subject Person" (the paramountcy principle).
2. The appellant contends that the observance of the paramountcy principle favoured that he and/or the Son be appointed as the Subject Person's manager(s). In support of that contention, the appellant pointed to his long and close relationship with the Subject Person, his significant financial experience, both in his professional life and in managing his parents' finances, together with his reputation as a person of integrity, as attested to by people of good repute who provided character references in the proceedings before the Tribunal. In addition, he pointed out that the appointment of the Trustee resulted in the Subject Person's estate incurring significant management fees which could be avoided if a suitable family member was appointed manager.

Appointment of manager: statutory framework

1. Where, as here, the Tribunal makes a financial management order under s 25E of the Guardianship Act, the Tribunal must decide whether to appoint a suitable person as manager of the protected person's estate; or to commit management of the estate to the Trustee: Guardianship Act, s 25M: 25M Tribunal may commit estate of protected person to management [1] (1) If the Tribunal makes a financial management order in respect of the estate (or part of the estate) of a person, the Tribunal may, by order: (a) appoint a suitable person as manager of that estate, or (b) commit the management of that estate to the NSW Trustee.

Consideration

1. The terms of s 25M of the Guardianship Act are to be contrasted with ss 15(3) and 17(1) of that Act. As noted above, the latter instruct the Tribunal not to appoint the Public Guardian as the guardian of a person under guardianship in circumstances where an individual has been proposed as guardian and the Tribunal is satisfied that that person satisfies the criteria for appointment listed in s 17(1) of that Act. In contrast, s 25M of the Guardianship Act does not require the Tribunal to be satisfied that there is no "suitable person" to undertake the role of manager before exercising the discretion to appoint the Trustee as manager.
2. Nonetheless, it does not follow that s 25M permits the Tribunal to ignore the nomination of a person proposed to act as manager of the protected person's estate. Read together with the obligation to observe the paramountcy principle, s 25M of the Guardianship Act will generally require the Tribunal to decide whether one or more of the proposed managers are suitable people to manage the person's estate, and if so, having regard to the section 4 principles, whether that person or the Trustee should be appointed.
3. The Tribunal's reasons for not appointing the appellant and the Son are encapsulated in [58]: "[58] We were not confident [the Son, the Resident Son and/or the appellant] would pay for services or sign aged contracts if the Public Guardian made decisions they did not agree with. For example, [the Son and the appellant] would likely not agree to pay for in-home services if [the Resident Son] continued to be his mother's primary carer. [The Resident son] may be reluctant to sign residential aged care contracts if he disagreed with a decision for [the Subject Person] to transition into full-time care."
4. The Tribunal went on at [61] to state: "After having regard to the intense level of antipathy within the family and the likelihood of further conflict if we appointed a family member to the role, we concluded that [the Subject Person] would benefit from an independent financial manager to safeguard her financial interests."

Consideration

1. In ZGM v ZGN [2018] NSWCATAP 101 at [40], the Appeal Panel observed that the section 4 principles are expressed at "a high level of generality". At [40], the Appeal Panel stated that observing the paramountcy principle requires the Tribunal: "[T]o identify the welfare and interests of the Subject Person that might be affected by the exercise of the power and to give paramount consideration to those matters in the exercise of that power. Depending on the circumstances of the particular case, a vast range of factual matters and considerations might rationally be thought to be relevant to that exercise."
2. It is implicit from the Reasons that the Tribunal considered that the welfare and interests of the Subject Person required that any appointed manager would cooperate with the Public Guardian and not use their position to undermine or interfere with decisions made by the Public Guardian by withholding funding for those decisions they opposed. The Tribunal found that there was a risk that each of the proposed guardians might do so. At [58], the Tribunal gave examples of potential difficulties: that the Son and the appellant refuse to pay for in-home services if the Resident Son continued to be his mother's primary carer; that the Resident Son may be reluctant to sign residential aged care contracts if he disagreed with a decision for the Subject Person to transition into full-time care.
3. It was open to the Tribunal to decide that the welfare and interests of the Subject Person would be best served if decisions made by the Public Guardian were not thwarted by a manager who disagreed with those decisions.
4. The contention that, in committing the estate of the Subject Person to the management of the Trustee, the Tribunal failed to observe the paramountcy principle is rejected.

No evidence: the funding finding

1. The appellant contends that there was no evidence before the Tribunal to support the finding that the appellant and/or the Son might not fund decisions made by the Public Guardian with which they disagreed (the funding finding). He points out in the proceedings before the Tribunal the Resident Son stated that he might not fund decisions made by the Public Guardian with which he disagreed, neither he nor the Son had made a statement to that effect. In support, he points to the following extracts from the transcript of those proceedings [2] : "Member: If the public guardian was appointed and they made a decision you didn't agree with such as signing off on something would you agree to sign forms for example such as placement in a care facility or provision of services and you disagreed with how would you deal with that? Resident Son: As long as there was a discussion and I thought the decision of the guardian was fair there would be no disagreement, if I thought it unfair, then I would want to have more discussion.... … Member: What would happen if the public guardian was appointed and they made decisions you and [the Son] didn't agree with, would you sign those kinds of service agreements? Appellant: I'm [sic] expect if the public guardian made decisions they would be in her best interest and I would likely agree with them …"

Consideration

1. Here the Tribunal was required to form a judgement about how each of the proposed managers might act in the future if appointed to manage the Subject Person's estate. The Tribunal considered that question through the prism of the not improbable scenario that the Public Guardian might make decisions in relation to the care, accommodation and/or services with which the proposed managers might disagree.
2. While there was no direct evidence of any past conduct by the appellant and/or the Son which might tend to support the funding finding, there was some indirect evidence which supported that inference being drawn. That included the fierce opposition expressed by the Son and the appellant to the Subject Person being returned to the care of the Resident Son. In addition, the answer given by the appellant to the Tribunal, as referred to above, was somewhat equivocal: "[I'd] expect if the public guardian made decisions they would be in her best interest and I would likely agree with them".
3. It was not permissible for the Tribunal to base findings on conjecture or speculation. However, the Tribunal was permitted to draw an inference based on indirect evidence: Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262 at [80]-[91].
4. While not put in these terms, the finding made by the Tribunal was to the effect that there was a material risk that the appellant and the Son might not fund decisions, with which they disagreed. That inference was reasonably open to the Tribunal on the available material.
5. The contention that there was no evidence to support the funding finding must be rejected.

Leave grounds

1. The appellant urges the Appeal Panel to grant leave to appeal and contends that the decision raises an issue of principle, namely the right of a person without decision-making capacity to have decisions made on their behalf by suitable and loving members of their family and not state institutions which had no knowledge of the person and many calls on their time.

Consideration

1. In Collins v Urban [2014] NSWCATAP 17 (Collins), an Appeal Panel of NCAT noted at [84] that to grant leave to appeal under s 80(2)(b) of the NCAT Act, there must be a "sound basis" for granting leave. The Appeal Panel stated that an appellant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at, or that there was a bona fide challenge to an issue of fact. Ordinarily, it will only be appropriate to grant leave to appeal in matters that involve: "(a) issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; or (c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) the Tribunal having gone about the fact-finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed, (Citations omitted)"
2. In SAB v SEM and Ors [2013] NSWSC 253 at [7]-[10], White J emphasised the need to take account of the protective character of the jurisdiction when exercising the power to grant or withhold leave to appeal from a decision of one of NCAT's predecessor Tribunals, the Guardianship Tribunal of NSW, emphasising that the welfare and interests of the person with disabilities is to be given "paramount consideration".
3. We accept that the appellant believes that the decision of the Tribunal to appoint the Public Guardian and Trustee was not in the Subject Person's best interests. Undoubtedly that decision is of great importance to the appellant, the Son and the Subject Person. Nonetheless, it raises no issue of general principle or public importance. Nor does it give rise to any of the other factors identified by the Appeal Panel in Collins which might warrant granting leave to appeal. The decision is confined to the specific facts which arose in that case. It has no broader application. Nor, as suggested by the appellant, is the decision authority for the proposition that the Public Guardian and Trustee must be appointed where a suitable family member(s) is available to act as guardian and/or manager.
4. Leave to appeal is refused.

Orders 1. The appeal is dismissed. 2. Leave to appeal is refused.

Endnotes

1. Section 62(3) of the NCAT Act is expressed to relate to reasons provided following a request for reasons by a party made under the NCAT Act, s 62(2). Our preliminary view is that the requirement stated in 62(3) of the NCAT Act applies equally to decisions provided pursuant to the NCAT Act, cl 11, sch 6. In Orr, Bell P said, while the operation of s 62(3) is "arguably" confined to reasons supplied pursuant to a request by a party, "[i]t is not unreasonable... to suppose that s 62(3) supplies important guidance as to what should be set out by the Tribunal in reasons which it chooses to give even without a request for reasons pursuant to s 62(2) request by a party".
2. The Guardianship Act uses the term "protected person" to refer to a person whose estate (or part of whose estate) is subject to a financial management order: s 25D of the Powers of Attorney Act. 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: 17 August 2022