ZZJ v NSW Trustee and Guardian

REASONS FOR DECISION

1. Eighty-two-year-old ZZO (the Mother) has dementia and since July 2019 has been the subject of guardianship and financial management orders made by the Guardianship Division of the NSW Civil and Administrative Tribunal (NCAT). Throughout this period, the NSW Public Guardian (the Public Guardian) and the NSW Trustee and Guardian (the Trustee) have respectively acted as guardian and financial manager for the Mother.
2. One of the Mother's two daughters, ZZJ, brings an appeal from the decision made by the Tribunal on 27 July 2022 (the decision under appeal): 1. to renew the guardianship order made on 14 July 2021 for a period of two years and to reappoint the Public Guardian as guardian for the Mother (the 2022 guardianship order) 2. to dismiss the application to review the financial management order made in May 2019 (the 2019 FMO) in respect of the Mother.
3. ZZJ contends that the Tribunal erred in finding that she was not able to act as guardian for her Mother and erred in declining to revoke the appointment of the Trustee as manager of the Mother's financial affairs.
4. The Mother's other daughter, with whom the Mother now lives, opposes the appeal and opposes ZZJ being appointed guardian and manager for their Mother. Currently there is an apprehended violence order which prohibits the two daughters from contacting each other.
5. For the reasons discussed below, the decision under appeal does not contain an error of the type claimed by ZZJ. In addition, we have refused ZZJ's request for leave to appeal and decided not to deal with the appeal by way of a new hearing.

Parties to 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. "ZZO", the Mother, the person the subject of the guardianship and the financial management orders which are the subject of the decision under appeal 2. "ZZJ", the appellant and one of the Mother's two daughters 3. "ZWM", ZZJ's sister and the Mother's other daughter 4. "ZZK", the Mother's estranged husband 5. "ZZL", the appellant's son and the Mother's grandson 6. "ZZN" the Mother's son.
3. For ease of reading, in these reasons we will not refer to the people involved in this appeal by their assigned pseudonyms but by the following descriptors: ZZO the Mother ZZJ the appellant ZZM the Sister ZZK the Husband ZZL the Grandson ZZN the Son

1. The appellant, the Sister and the Trustee were the only parties to participate in the appeal. The Public Guardian made a submitting appearance.

Grounds of appeal

1. The appellant has a right to appeal from the decision under appeal 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 appellant contends that the decision under appeal raises the following questions of law: 1. whether the Tribunal denied the Mother procedural fairness by: 1. failing to ensure that a separate representative was appointed for the Mother at the hearing to review the 2022 guardianship order and the 2019 FMO (the review hearing) 2. in the alternative, failing to give the Appellant an opportunity to arrange legal representation for the Mother 1. whether the Tribunal denied the Appellant procedural fairness by: 1. failing to give her a copy of the reasons for decision made on 14 July 2021 to renew the guardianship order made on 18 June 2020 2. in the review hearing, failing to contact and ask questions of the Public Guardian and to ask questions of the Sister 1. whether in finding that the appellant was unable to act as guardian for the Mother, the Tribunal: 1. misapplied ss 15(3) and 17(1)(c) of the Guardianship Act 1987 (NSW) 2. made a finding based on no evidence 3. ignored the appellant's evidence said to demonstrate that she was able to act as guardian for the Mother 1. whether in declining to appoint the appellant as manager of the Mother's estate, the Tribunal: 1. failed to consider the evidence said by the appellant to demonstrate that the Trustee had been mismanaging the Mother's financial affairs 2. failed to consider the evidence and submissions provided by the appellant which supported her claim that she was better able than the Trustee to manage the Mother's financial affairs.
3. In addition, the appellant urges us to exercise the discretion: 1. to deal with the appeal by way of a new hearing by having regard to fresh evidence 2. to grant leave to appeal.

Denial of procedural fairness to the Mother

1. The appellant contends that the Tribunal denied the Mother procedural fairness by: 1. failing to ensure that a separate representative was appointed for the Mother, and 2. failing to notify the appellant that Legal Aid NSW had decided not to fund a separate representative for the Mother, thereby denying the appellant the opportunity to arrange for a lawyer to represent the Mother.
2. The Sister disagrees. She contends that at the review hearing, in her role as carer, she "fairly represented" the Mother. She points out that, as recorded by the Tribunal in its reasons for decision, (NCAT, SM Organ 27 July 2022) (the Reasons) at [13], the Mother was with her throughout the hearing and the Tribunal endeavoured to speak to the Mother. In addition, the Sister contends that the Mother was not able to speak with or give instructions to a lawyer.

Consideration

1. The NCAT Act requires the Tribunal to observe the rules of natural justice (procedural fairness): NCAT Act, s 38(2). In addition, that Act imposes several specific obligations on the Tribunal including taking such measures as are reasonably practicable to "ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings" (emphasis added): NCAT Act, s 38(5).
2. On 20 May 2022, Principal Member Fougere made orders appointing a separate representative for the Mother. That appointment was made under s 45 of the NCAT Act: 45 Representation of parties (1) A party to proceedings in the Tribunal - (a) has the carriage of the party's own case and is not entitled to be represented by any person, and (b) may be represented by another person only if the Tribunal grants leave - (i) for that person to represent the party, or (ii) in the case of representation by an Australian legal practitioner - for a particular or any Australian legal practitioner to represent the party. … (4) The Tribunal may - … (c) order that a party be separately represented. … (5) A person is not entitled to legal aid under the Legal Aid Commission Act 1979 merely because the Tribunal has made an order under subsection (4)(c) or (4A)(b).
3. The NCAT Act does not define the term "separately represented", as used in s 45(4)(c), or "separate representative", a term commonly used to describe a person appointed under that provision. The Guardianship Division Guideline "Representation", issued in August 2017 (the Representation Guideline), explains the role of a separate representative: Role of a separate representative 45. The role of a separate representative is different from that of a solicitor acting on instructions. A separate representative is independent and does not act on the instruction of the person they represent. 46. A separate representative should seek out the views and opinions of the person with a disability wherever possible and present these to the Tribunal. 47. A separate representative may also canvass the views of others involved in the proceedings. 48. The role of a separate representative is to make submissions, based on all available information, as to the outcome that the separate representative believes would give paramount consideration to the welfare and interests of the subject person whilst also taking into account the other principles set out in section 4 of the Guardianship Act.
4. The rules of procedural fairness required the Tribunal to give the Mother, as a party to proceedings and a person undoubtedly affected by its decision, a fair hearing (the hearing rule). As explained by Brennan J in Kioa v West [1985] HCA 81; (1985) 159 CLR 550 (Kioa) (at [612]), the content of that requirement is "chameleon-like", is infinitely variable and is "determined in the light of the particular circumstances" (at [626]). See also Antonio Di Liristi v NSW Public Trustee and Anor [2021] NSWSC 1347 at [84]-[86].
5. The particular circumstances require consideration of the nature of the Tribunal's jurisdiction, the statutory framework governing the decision under appeal and any rules governing the Tribunal's processes.
6. The NCAT Act goes some way to identifying, but does not set, the outer limits of the Tribunal's obligation to afford procedural fairness. Depending on the particular circumstances, that obligation may require that the Tribunal to do more than simply discharge the specific obligations prescribed by the NCAT Act, especially where, as here, the Tribunal is exercising a protective jurisdiction and the person the subject of those proceedings is unable to communicate or to participate in the proceedings.
7. Undoubtedly, it would have been to the Mother's benefit had she been represented by a separate representative in the review hearing, especially as she was unable to participate in those proceedings: Reasons at [13]. However, neither ss 38 and 45 of the NCAT Act, nor the common law obligation to afford procedural fairness, required the Tribunal to ensure that the Mother was separately represented. Indeed, s 45(5) of the NCAT Act expressly contemplates that the making of an order under s 45(4)(c) to appoint a separate representative may not result in the separate representation of the person for whom the appointment was made.
8. Finally, the obligation imposed on the Tribunal by s 38(5)(c) of the NCAT Act to "ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings" is limited to such measures as are "reasonably practicable". Even if, as the appellant appears to contend, s 38(5)(c) of the NCAT Act required the Tribunal to exercise the power to appoint a separate representative for the Mother, in circumstances where the Tribunal lacked power to direct Legal Aid to fund that appointment, it could not be said that it was reasonably practicable for the Tribunal to ensure that the Mother was separately represented in the review proceedings.

Failing to notify the appellant that Legal Aid had decided not to fund a separate representative for the Mother

1. The appellant contends that the Tribunal failed to notify her of the decision made by Legal Aid to refuse to fund a separate representative for the Mother and as a consequence the Mother was denied procedural fairness. The appellant contends that if she had been notified of that decision, she would have arranged for the Mother to be represented by a lawyer.
2. There are two key difficulties with this contention.
3. First, it is based on the mistaken premise that the Tribunal failed to notify the appellant of the Legal Aid decision to refuse to fund a separate representative. The parties were advised of that decision a week before the hearing. In a hearing report dated 20 July 2022, and issued to the parties on the same day, a member of NCAT's registry stated that "Mental Health Advocacy [a unit within Legal Aid NSW] has refused to fund the appointment of a separate representative".
4. Second, it assumes that the Appellant would have been able to engage a lawyer to represent the Mother. This is unlikely in circumstances where it was evident that the Mother lacked capacity to give instructions. A lawyer must be reasonably satisfied that their client has the mental capacity to give instructions. Representing a client who lacks the mental capacity to provide instructions may expose a lawyer to liability in negligence or disciplinary action: Goddard Elliott (a firm) v Fritsch [2012] VSC 87, [569], [548]-[550].

Carer

1. For completeness, we address an issue which was not raised as a ground of appeal but was the subject of controversy in this appeal, namely, the Sister's role as carer for the Mother.
2. The Sister was mistaken in asserting that, as carer, she was "her Mother's voice" and entitled to represent the Mother in the review proceedings. Neither the Guardianship Act nor the NCAT Act gives a carer the authority to represent the person the subject of orders made or proposed to be made under the Guardianship Act. We note there is nothing in the Reasons or the transcript of the review hearing to suggest that the Tribunal accepted the Sister's assertion that she spoke for the Mother.
3. The appellant was also mistaken in asserting that the Sister was not the carer and therefore not a party to the review proceedings. The appellant argues that the Sister provides inadequate care and support to the Mother. In addition, the appellant alleges that the Sister no longer receives a carer's pension because Centrelink had found her guilty of fraud.
4. The Guardianship Act states that a person is to be regarded as "having the care of another person" where the person, otherwise than for remuneration (but not the carer's pension), on a regular basis provides, or arranges to be provided to another person, domestic services and support: s 3F. We use the term "carer" to describe a person who has the care of another person.
5. The Guardianship Act deems a carer to be a party to proceedings under the that Act, including proceedings in respect of review by the Tribunal of a financial management order or a guardianship order.
6. The definition of carer in s 3F of the Guardianship Act does not specify the standard of services and support required to be provided only that those services and support be provided or arranged to be provided on a regular basis. Nor does the definition require the purported carer to be in receipt of a carer's pension. It cannot be inferred from the decision to treat the Sister as a party to the proceedings on the basis that she was the Mother's carer, that the Tribunal made any findings about the appropriateness of the standard of care and support provided by the Sister.

Failing to give the appellant a copy of the reasons for decision made on 14 July 2021

1. The appellant contends that she was denied procedural fairness because she was not given a copy of the reasons for the decision made on 14 July 2021. In that decision, a differently constituted Tribunal renewed the guardianship order made in December 2020 for a period of 12 months and reappointed the Public Guardian to act as the Mother's guardian to make decisions about the Mother's accommodation, access, health care and services.
2. An Appeal Panel of NCAT dismissed an appeal brought by the appellant from that decision, pointing out that the appellant was not a party to the July 2021 review proceedings and therefore was not entitled to appeal the decision to make the July 2021 guardianship order: ZWI v Public Guardian [2022] NSWCATAP 84 (ZWI) [37]-[41].
3. In ZWI, the Appeal Panel also considered an appeal, brought by the appellant from the subsequent decision made in September 2021, to refuse to review the July 2021 guardianship order. The appellant was entitled to appeal that decision because she had requested that review and therefore was a party to those proceedings: s 3F (3) of the Guardianship Act.
4. At [76]-[82], the Appeal Panel considered and rejected the appellant's submission that she was denied procedural fairness because she was not given a copy of the reasons for the decision to make the July 2021 guardianship order. The Appeal Panel considered it significant that in the July 2021 review proceedings the question of the ability of the appellant to act as guardian for the Mother "simply did not arise" because she had not proposed to the Tribunal that she be appointed. The Appeal Panel stated at [81]: "This was not a case where a proposed guardian was not given the opportunity to respond to a finding made by a Tribunal that they did not meet the criteria for appointment in s 17(1) of the Guardianship Act, or to some other adverse finding made about them. Arguably, if the proposed guardian was not informed of the substance of those findings and given the opportunity to respond to them, that might potentially amount to a denial of procedural fairness."
5. That reasoning applies equally to this appeal. In the July 2022 review proceedings, the subject of this appeal, the primary question the Tribunal was required to decide was whether the appellant could be appointed as guardian for the Mother and whether it was in the Mother's best interests that the Trustee be removed and replaced by the appellant as manager. That issue did not arise in the July 2021 review proceedings because the appellant had not proposed that she be appointed as guardian for the Mother and the 2019 FMO was not the subject of those proceedings.
6. As explained by French CJ in Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6; 214 CLR 1 at [37], the concern of the law in terms of procedural fairness is to "avoid practical injustice". We are not persuaded that the appellant suffered any practical injustice as a result of not being given a copy of reasons for the decision to make the July 2021 guardianship order.

Failing to question the Public Guardian and the Sister

1. The appellant contends that by failing in the review hearing to question the Public Guardian and the Sister about issues of concern she had raised about their respective roles as guardian and carer for the Mother, the Tribunal denied her procedural fairness. Those issues included:

Relating to the Public Guardian: 1. the decisions made by Public Guardian in relation to its authority to make decisions about access to the Mother 2. the Public Guardian's purported failure to address concerns raised by the appellant about the Sister's "correspondence and consulting measures" 3. the decision made by the Public Guardian that the Mother live with the Sister after the sale of the family home and not, as proposed by the appellant, in aged care.

Relating to the Sister: 1. the Sister's actions in allegedly isolating the Mother from other family members 2. the poor standard of the Mother's accommodation 3. the Mother's health and recent hospital admissions.

1. To put the submissions made by the appellant about this ground in context it is necessary to set out some background facts.
2. Since May 2019, the Public Guardian has acted as the Mother's guardian. Throughout that period the appellant has raised a series of concerns about decisions made by the Public Guardian including decisions in relation to her access to the Mother; who should care for the Mother; and where the Mother should live. The appellant has unsuccessfully sought administrative review of some of those decisions under the Administrative Decisions Review Act 1997 (NSW). See for example, DYH v Public Guardian [2021] NSWCATAD 136; DYH v Public Guardian [2020] NSWCATAD 252.
3. In October 2021, the Family Court of Australia ordered the sale of the home the Mother had been living for many years which she co-owned with the Husband. At the time of the sale, the Sister was living with the Mother. In mid-2022, the Public Guardian decided that after the sale the Mother should continue to live with the Sister and move to the Sister's home, a social housing tenancy. The appellant opposed that decision, arguing that it was not in the Mother's interests to continue to live with the Sister in what she considered to be sub-standard accommodation. The appellant proposed that the Mother move to an aged care facility.

Public Guardian's participation in the 2022 review proceedings

1. The Public Guardian prepared a report for, but did not otherwise participate in, the review hearing. At the commencement of that hearing, the Tribunal reminded the parties that, as stated in its report, the Public Guardian would not be participating in the review hearing. The Tribunal said that the Public Guardian could be contacted "if we need to refer to them any issues", Transcript of proceedings, NCAT, 2018/00049767, SM Organ 27 July 2022 p 53 (22).
2. The Tribunal did not contact the Public Guardian during the review hearing. Nor did the appellant request the Tribunal to ask the Public Guardian questions or to contact the Public Guardian so that she could ask the Public Guardian questions. Nor did the appellant request the Tribunal to ask questions of the Sister or to give her the opportunity to ask questions of the Sister.
3. The effect of the appellant's submissions is that if the questions concerning the matters of concern she has identified in this appeal had been asked of the Public Guardian and the Sister, this would have exposed that, in its role as guardian for the Mother, the Public Guardian had made a series of poor decisions, inconsistent with the obligations of a guardian. That evidence, contends the appellant, would have led the Tribunal to conclude that she was better able to undertake the role of guardian than the Public Guardian and that the Sister had failed to provide the Mother with appropriate care and support.
4. Undoubtedly, the Tribunal was entitled to ask questions of the Sister and the Public Guardian and to direct the Public Guardian to answer questions asked by the appellant. However, the Tribunal was not required to exercise those powers. The obligation to afford the appellant with a reasonable opportunity to put her case, while 'chameleon-like" and "infinitely variable", did not require the Tribunal to second-guess what matters the appellant considered might support her case and to ask the Public Guardian and Sister questions about those matters or to invite the appellant to do so.
5. There may be circumstances where the Tribunal's failure to ask questions of a party, or failure to invite another party to ask questions of that party, may amount to a denial of procedural fairness. For example, where the inquiry is relevant to an issue which the Tribunal is required to decide and a party who might have been expected to make that inquiry suffers some form of disadvantage, such as an inability to communicate, a disability, mental illness or lack of education which affects their ability to participate in the proceedings it may be desirable for the Tribunal to makes those inquiries. Here there is no evidence, and nor is it claimed, that the appellant suffers from some form of disadvantage which hindered her ability to be heard in the proceedings. Notably, she had significant experience as a party in proceedings in NCAT.
6. The real complaint raised by this ground appears to be that the Tribunal failed to exercise its power to inquire into matters that the appellant contends were relevant to the question that the Tribunal was required to decide (see, NCAT Act, s 38(6)(a)). As we explain below, in reviewing the 2021 guardianship order the questions of whether the Public Guardian had properly discharged its role as guardian, or whether the Sister was providing an appropriate standard of care and support to the Mother, were not issues the Tribunal was required to decide.
7. Ground 1 must fail.

Ground 2: finding that the appellant was unable to act as guardian

1. By ground 2 the appellant contends that, in finding that the appellant was unable to act as guardian for the Mother, the Tribunal: 1. misapplied ss 15(3) and 17(1)(c) of the Guardianship Act 2. made a finding based on no evidence, and 3. ignored the evidence provided by the appellant said to demonstrate that she was able to act as guardian for the Mother.

Appointment of a guardian: statutory framework

1. 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. ...
2. To appoint a person as guardian of the person under guardianship, the Tribunal must satisfy itself that that person meets each of the criteria listed in s 17(1) of the Guardianship Act: 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.
3. Section 17(1) of the Guardianship Act does not apply to the appointment of the Public Guardian: s 17(2).
4. 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.
5. Clause 5(1) of Sch 6 to the NCAT Act, states that when exercising its "Division functions for the purposes of the Guardianship Act", the Tribunal is under a duty to observe the principles set out in s 4 of the Guardianship Act (the section 4 principles).

Misapplied ss 15(3) and 17(1)(c) of the Guardianship Act

1. In detailed submissions, the appellant cited numerous authorities which have considered the proper interpretation of ss 15(3) and 17(1)(c) of the Guardianship Act. The appellant correctly pointed out that s 15(3) instructs the Tribunal not to appoint the Public Guardian in circumstances where a guardianship order can be made "appointing some other person as the guardian of the person". In addition, the appellant pointed out that the authorities have consistently emphasised that in combination these provisions operate to make the Public Guardian the guardian of "last resort".
2. We do not understand the appellant to contend that the Tribunal misstated these provisions or the principles derived from the authorities which have considered those provisions. Rather, we understand the appellant to contend that the Tribunal misapplied those provisions. That misapplication is said to result from the finding made by the Tribunal that it was not satisfied that the appellant was able to exercise the functions conferred by the guardianship order (the impugned finding).

The Tribunal's decision

1. At [50]-[56], [58]-[59], the Tribunal set out the statutory provisions governing the appointment of a guardian under a continuing guardianship order and the authorities which have considered those provisions. At [52], the Tribunal referred to s 15(3) of the Guardianship Act and stated, correctly, that "it is not able to appoint the Public Guardian as a person's guardian if there is a private person who can be appointed". At [53], the Tribunal referred to the often-cited passage from W v G [2003] NSWSC 1170 in which, after referring to ss 4 and 15(3) of the Guardianship Act, Windeyer J stated: "…I consider that the proper meaning to be given to [s 15(3) of the Guardianship Act] is to read it as saying that the Public Guardian should not be appointed in circumstances in which an order can properly be made in favour of another person. That requires not only that the person be willing, reliable and responsible, but that the appointment will result in the policy considerations and principles set forth in the Act being given effect…"
2. At [58]-[76] the Tribunal addressed the question of whether the appellant was able to exercise the functions conferred by the guardianship order. The Tribunal concluded that there is "a real and material risk that [the appellant] would be unable to give real consideration to opinions that differed from her own when considering decisions for [the Mother] in her role as guardian": at [60]. In reaching that conclusion the Tribunal referred to: 1. the criticisms made by appellant of the Mother's care providers: at [60]; 2. the appellant's claim that the Mother's treating geriatrician had made an "inaccurate medical assessment" and the appellant's stated view that the geriatrician's support for the proposal that the Mother remain living with the Sister was "misconceived": at [61]; 3. the contradictory statements made by the appellant about the process she would adopt in making decisions on behalf of the Mother, if she were appointed guardian. Referring to the appellant's statement that if it was recommended by the Mother's geriatrician that the Mother remain living with the Sister, she would accept his recommendation, the Tribunal stated that "other statements made by [the appellant] and actions taken by her, indicate otherwise": at [62]; 4. the statement made by the appellant that any decisions about the Mother's accommodation "must be unanimous with all family members, including all three children and all three grandchildren and her husband … in equal consultation".

Consideration

1. The contention that the Tribunal misapplied ss 15(3) and 17(1) of the Guardianship Act rests on two premises: that the Tribunal failed to consider, or to properly consider, whether an order could be made appointing the appellant as the guardian of the Mother and that the impugned finding was based on no evidence.

No evidence

1. As detailed above, the Tribunal had before it and considered material relevant to the question of whether the appellant was able to exercise the functions conferred by the guardianship order. That material included: 1. statements made by the appellant about her plan for making decisions for her Mother if appointed guardian 2. statements made by the appellant about the opinions expressed by the appellant's treating geriatrician 3. the history of the dealings between the appellant and the Sister in relation to their Mother, including the existence of an apprehended violence order.
2. Based on that material, the Tribunal made several findings on which the impugned finding was ultimately based: 1. that there was a "real and material risk that [the appellant] would be unable to give real consideration to opinions that differed from her own when considering decisions for [the Mother]": at [60] 2. the appellant's statement that accommodation decisions would only be made after unanimous agreement was reached by all family members about those decision, "demonstrates a lack of insight on [the appellant's] part": at [65] 3. that given the "current fraught family dynamics", in particular, between the appellant and the Sister, the Tribunal had "misgivings" about whether the appellant has the "necessary attributes and skills to exercise any of the functions in the order": at [65]; 4. the appellant had become "so entangled with her grievances with the Sister" that there was a real and material risk that this would adversely affect her "ability to exercise objective judgment about decisions that need to be made on behalf of [the Mother]": at [66] 5. the appellant is unlikely to be able "to consult with others including health professionals involved in the treatment and management of the Mother, give real consideration to opinions that differ from her own, weigh up the advantages and disadvantages of the available options and make a reasoned and objective decision about what is in her mother's best interests": at [70].
3. The deciding paragraphs of the Tribunal's reasons are contained at [75], [76]: "Having regard to the findings I have made I consider that [the appellant] is not able to exercise the functions of a guardian in a manner consistent with the obligations of a guardian and the s 4 principles. In relation to the functions the guardian now has I am not satisfied [the appellant] is able to carry out these functions objectively, with insight and in accordance with the policy considerations and principles set out in the Act. In summary I find that [the appellant] is willing, but not able to exercise the functions conferred by the guardianship order in accordance with the principles in section 4 of the Act. As I have found [the appellant] is not able to exercise the functions conferred by the order it is not necessary to address whether as required by s17(1) of the Act, [the appellant] has a personality generally compatible with that of her mother and whether there is no undue conflict of interests between her interests and those of [the Mother]."
4. Section 17(1)(c) required the Tribunal to make an evaluative judgement about whether the appellant was "able" to exercise each of the functions conferred by the guardianship order: ZKF v ZKG [2019] NSWCATAP 64 at [31]. In forming that judgement, the Tribunal was entitled, as it did, to identify the skills and attributes necessary to be able to exercise the functions conferred under the guardianship order in the particular of the Mother's case. Here, the Tribunal considered that an ability to consult with, and give genuine consideration to the views of people involved in the care, treatment and management of the Mother, especially where their views differed from her own, to be of particular importance.
5. The contention that the impugned finding was based on no evidence is, in truth, an expression of disagreement about that finding and is rejected. That finding was open to the Tribunal on the available material.

Failure to consider appellant's submissions and evidence

1. Finally, the appellant contends that the Tribunal failed to have regard to her evidence which she argues supported her claim that she was able to exercise the functions conferred under the guardianship order. That material included submissions and statements prepared by the appellant, in support of her application to be appointed as guardian and manager for the Mother.
2. At [4] of an undated statement (see bundle of material filed 13 September 2022 by the appellant in the appeal, p 12), the appellant detailed how she proposed to discharge the role as guardian. The appellant stated that, in this role, she intended to take "full responsibility" and to dedicate the time needed to meet "the expectations and care needs" of the Mother. She stated that, if appointed, she would replace the current service provider because of "personality disputes" and that any accommodation decisions would be based on "medical expert advice" and with the unanimous agreement of all family members. In addition, the appellant pointed to her history as a "dedicated daughter" who had provided both parents with financial support. Further, the appellant pointed out that she was a member of the Liberal Party of Australia and was respected by the public for her volunteer work with the elderly and people with disability.
3. At [63]-[65], the Tribunal expressly addressed the appellant's stated plans for making decisions about the Mother's accommodation. The Tribunal considered the plan that decisions about the Mother's accommodation would only be made following a "unanimous decision" of the family to be "at best optimistic and at worst unrealistic". With respect to the claim that in making decisions the appellant would adopt the advice of the Mother's GP and geriatrician, the Tribunal expressed scepticism that this would occur, pointing to the appellant's challenge to several decisions made by the Public Guardian which were based on the advice of the Mother's GP and geriatrician.
4. It could not be said that the Tribunal failed to have regard to the appellant's stated plans about the decision-making processes she said she would adopt if appointed guardian for the Mother. The Tribunal concluded that those plans demonstrated that the appellant "lacked insight".
5. Nor could it be said that the Tribunal failed to consider the appellant's claim that she intended to follow the advice of the Mother's doctors. The Tribunal considered, but was not persuaded by, that claim, noting that it contradicted other statements made by the appellant including that any decision about the Mother's accommodation must be a "unanimous decision" of the family.
6. Finally, the Tribunal considered and rejected the appellant's claim that she would be able to communicate with the Sister about decisions that need to be made about the Mother and to consider views different to her own, attributes identified by the Tribunal as being necessary for the proper discharge of the role as guardian.
7. Finally, the appellant is correct that there is nothing in the Reasons to suggest that the Tribunal had regard to the evidence about the appellant's membership of the Liberal Party and her involvement as a volunteer in various community activities. However, it is not immediately apparent, and the appellant failed to explain to the Tribunal (and the Appeal Panel), how that evidence could be said to be relevant to her ability to act as guardian for the Mother.
8. If it is suggested by the appellant that the Tribunal was required to consider and to refer in its reasons to all evidence on which she relied in support of her claim that she was able to act as guardian, we disagree. As explained by French, Sackville and Hely JJ in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630; [2003] FCAFC 184 (Applicant WAEE), at [46]-[47] (cited with approval by Basten JA in D'Amore v Independent Commission Against Corruption [2013] NSWCA 187): "It is plainly not necessary for the tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived."
9. Ground 2 must fail.

Ground 3: failing to have regard to the evidence of the Trustee's mismanagement of the Mother's financial affairs together with the evidence that the appellant was able to manage those affairs

1. By ground 3, the appellant contends that the Tribunal failed to consider her evidence and submissions, which she asserts demonstrated the Trustee's unsuitability and her suitability to manage the Mother's financial affairs. In addition, the appellant contends that the Tribunal failed to have regard to the advantage to the Mother of removing the Trustee as manager, namely, that the Mother would be spared the significant management fees charged by the Trustee.
2. In the review proceedings, the appellant pointed to the following considerations which she contended demonstrates her suitability to manage the Mother's estate: 1. she has not been charged with any criminal offence 2. she has never been declared bankrupt or removed as a director of a company 3. for most of her working life, she had worked in the law in "large high profile law firms", managing trusts accounts and dealing with staff and accounts 4. over the past few years, she has worked as a volunteer assisting elderly people and people with disability with legal matters, finances etc 5. her "background and discipline" has taught her how to control outgoings expenses 6. the analysis she provided of the statement of advice prepared by the Trustee (see below at [83(b)]).

Statutory framework

1. Contained in Division 3 (review of appointment of manager) in Part 3A (financial management), s 25U(3) of the Guardianship Act sets out the powers available to the Tribunal on review of the appointment of a manager: 25U Action on review (1) On reviewing its appointment of the manager of a protected person's estate, the Tribunal may - (a) revoke the appointment, or (b) confirm the appointment. (2) The Tribunal may also review the financial management order under which the manager was appointed, and may take any action in respect of that order that it may take on a review of such an order under Division 2. (3) If the relevant financial management order is not revoked under subsection (2), the Tribunal is to appoint another person as manager of the estate subject to the order in substitution for a person whose appointment as manager has been revoked under this section. (4) The Tribunal may revoke the appointment under review only if - (a) the person appointed seeks the revocation, or (b) the Tribunal is satisfied that it is in the best interests of the protected person that the appointment be revoked, or (c) the financial management order in respect of the estate concerned is revoked. Note - Section 25Q provides for the disposal of the estate on revocation of a financial management order. (emphasis added)

Tribunal's decision

1. Before the Tribunal at the review hearing were two applications seeking review of the 2019 FMO. An application made on 29 November 2021 by the appellant, the Husband and the Grandson, and a subsequent application made on 28 March 2022 by the appellant alone. At that hearing, the appellant confirmed that she was not seeking review of the 2019 FMO but rather review of the appointment of the Trustee as manager.
2. At [84], the Tribunal identified the question to be determined in the review as being: "Is it in the best interests of [the Mother] that the order be varied to replace NSW Trustee and Guardian as financial manager and, if so, who should be the financial manager?"
3. At [85], the Tribunal set out the history to the making of the 2019 FMO. The Tribunal noted that the original Tribunal which made that order found that "unexplained withdrawals" had been made from the Mother's bank accounts, the Mother was vulnerable to financial exploitation because of her dementia, and that there was considerable conflict and distrust within her family about the Mother's financial affairs.
4. At [86], the Tribunal referred to the December 2020 review of the financial management order. In that review, the Tribunal found "nothing in [the appellant's] criticism of the conduct of the NSW Trustee and Guardian of such significance as to justify the replacement" of the Trustee.
5. At [91]-[96], the Tribunal considered the material provided by the Trustee in the review proceedings which included a financial management report dated 27 June 2022. In that report the Trustee stated: 1. following orders made by the Family Court of Australia in late 2021, the family home, the Mother's "major asset", had been sold 2. the Trustee anticipated that, as a result of that sale, the Mother would be ineligible to continue to receive the Aged Pension 3. the Trustee paid the Mother an allowance of $250 per week and $142 per week to the NSW Department of Communities and Justice for the Mother's share of the rent of the social housing premises she shared with the Sister 4. the Mother's expenses for the period 1 December 2020 to 26 June 2022, totalled $62,163 including the Trustee's management fee ($2,356) and fees for preparing the SoA.
6. The Tribunal noted at [94]: 1. an investigation conducted by the Trustee into allegations made by the appellant that the Sister and the Son had misappropriated the Mother's funds found that those funds were used for the benefit of the Mother 2. the Trustee's financial planning unit had prepared a statement of advice dated 24 May 2022 which contained a recommendation for the investment of the Mother's share of the proceeds of the sale of the family home (the SoA). That advice assumed several one-off expenses including the purchase of a car and funding an overseas trip for the Mother. Those expenses had been flagged by the Sister and not formally approved and were included in the plan on an indicative basis.
7. At [96] the Tribunal stated that the evidence given by the Trustee "clearly indicates" that the Mother: "[H]as sufficient income to meet her needs as well as sufficient funds available to meet any unexpected expenses and for the provision of items that might make her life more comfortable."
8. The Tribunal's reasons for dismissing the applications for review of the 2019 FMO are set out at [101]-[105].
9. At [101], the Tribunal stated that it was not persuaded by the appellant's argument that the Trustee had acted in a manner that is inconsistent with the Trustee's fiduciary duties to the Mother. The Tribunal stated that there was "no compelling evidence" that the Mother "has suffered any disadvantage as a result of any actions taken or omitted to be taken by [the Trustee]".
10. At [102], the Tribunal stated that it was unlikely that the appointment of the appellant would resolve the ongoing conflict between the sisters over the Mother's financial affairs. The Tribunal stated that while that conflict may continue regardless of who is appointed as financial manager, "decisions need to be made in the context of a prudential management regime that can be administered without strife in the simplest and least expensive way in the interests of the protected person" citing Lindsay J in M v M [2013] NSWSC 1495 at [50(f)].
11. At [103], the Tribunal acknowledged that the evidence given by the appellant regarding her skills and work experience "support her appointment as financial manager". But the Tribunal concluded that the appointment of the appellant would not be in the Mother's best interests. In reaching that conclusion, the Tribunal considered significant "[T]he complete breakdown of [the appellant's] relationship with [the Sister] who is responsible for the day-to-day care needs of the [Mother]": "On the evidence before me I could not be satisfied that there would not be conflict between [the appellant] and [the Sister] over [the Mother's] needs and expenses which could adversely impact either directly or indirectly on [the Mother]. Any decision made by her is highly likely to result in ongoing conflict between her and [the Sister]. I cannot be confident that [the appellant] has the necessary objectivity and impartiality to act as financial manager."
12. At [104], referring to the recent "change and disruption" to the Mother's life caused by the sale of the family home, the Tribunal stated that any further disruption occasioned by a change in financial manager would not be in the Mother's interests.

Consideration

1. A failure to address "a substantial, clearly articulated argument relying upon established facts" may constitute procedural unfairness: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 77 ALJR 1088 at [24]-[25], [95]; Workers Compensation Nominal Insurer v Hill [2020] NSWCA 54 at [26]. Whether the Tribunal was required to address a particular argument depends on the "nature and materiality" of that argument: Wang v State of New South Wales [2019] NSWCA 263 at [63]; Torbey Investments Corporated Pty Ltd v Ferrara [2017] NSWCA 9 at [62]-[66].
2. Before considering whether the Tribunal failed to consider any substantial submissions advanced by the appellant, it is first necessary to identify the question the Tribunal was required to decide in reviewing the appointment of the Trustee. That is because the obligation to consider submissions referred to by the High Court in Dranichnikov does not extend to submissions which are irrelevant to that question.
3. To revoke the Trustee's appointment the Tribunal was required to satisfied that it is in the best interests of the Mother for that appointment to be revoked: Guardianship Act s 25U(4). At [84] the Tribunal identified this to be the key issue it was required to decide.
4. The contention that the Tribunal failed to consider the appellant's submissions about her suitability to be appointed manager and the alleged lack of suitability of the Trustee to continue in that role is not borne out by the Tribunal's stated reasons for declining to revoke the appointment of the Trustee, summarised at [85]-[89] above.
5. While the Tribunal did not deal with each piece of material advanced by the appellant in support of her argument that the Trustee had mismanaged the Mother's financial affairs and acted in a manner inconsistent with the Trustee's fiduciary duties of the manager, it cannot be inferred that the Tribunal failed to consider the substance of that argument. Notably, many of the submissions advanced by the appellant in support of her claim that the Trustee had mismanaged the Mother's financial affairs were not based on "established facts" but rather on unsubstantiated allegations.
6. Having rejected the appellant's submission that the evidence supported a finding that the Trustee had mismanaged the Mother's finances, the Tribunal went on to consider whether, even so, it was in the Mother's best interests to revoke the Trustee and to appoint the appellant as manager.
7. The Tribunal accepted, favourably to the appellant, that her evidence and submissions supported her appointment as manager: at [103]. Its decision not to make that appointment turned on two key findings. First, that the appellant's appointment would be likely to exacerbate conflict between the sisters over the Mother's "needs and expenses". This would have the potential to "adversely impact either directly or indirectly" the Mother. Second, the finding that, given the significant recent disruption to the Mother's life caused by the sale of the family home, further disruption caused by a change in the arrangements for the management of her estate "would not best serve her interests": at [105].
8. Finally, the Tribunal dealt with the argument made by the appellant that her appointment would spare the Mother the management fees charged by the Trustees. The Tribunal decided at [105] that the advantage was not determinative and was outweighed by other the benefits of the Trustee's appointment, namely: "The independence of that office together with the dispassionate and neutral approach provided by that office in a fraught situation of family conflict and ongoing divided views regarding the best interests of [the Mother] in respect of her financial affairs, would in my view, be in [the Mother]'s best interests."
9. To exercise the power to revoke the appointment of the Trustee, the Tribunal was required to be positively satisfied that it was in the Mother's best interests to revoke that appointment. In considering that question, the Tribunal was not restricted to the matters the appellant contended were relevant.
10. The Tribunal was obliged to consider any "substantial, clearly articulated argument relying upon established facts" put by the appellant but was not required to accept those arguments.
11. While the Tribunal did not address each and every criticism made by the appellant about the Trustee, we find that the Tribunal addressed the substance of those criticisms.
12. A fair reading of the reasons for decision reveals that the Tribunal engaged with each of the substantial arguments made by the appellant. The premise on which ground 3 is based is not established.

Deal with appeal by way of new hearing

1. The appellant urges us to exercise the discretion to deal with the appeal by way of a new hearing and to allow fresh evidence to be given as permitted by s 80(3) of the NCAT Act. The new material identified by the appellant, which she argues warrants the exercise of that discretion, includes: 1. recent photographs taken of the Mother (5 October 2022) said to evidence the deterioration in the Mother's health and the Sister's abuse and neglect of the Mother 2. the email sent by the appellant to the Public Guardian on 30 August 2022, said to demonstrate that the Public Guardian has ignored the "access proposal" submitted by the appellant in April 2022 3. the Trustee's alleged failure to account for the Mother's missing jewellery and possessions including the appellant's personal property left at the family home, said by the appellant to be valued at about $170,000. The appellant alleges that the Sister and the Son stole that property.
2. As the appellant correctly points out, it is not a pre-condition to the exercise of the discretion to deal with the appeal by way of a new hearing that an error of law be established: Sheehy v NSW Police Force; Rapisarda v NSW Police Force; Housego v NSW Police Force [2018] NSWCATAP 307 at [16]; ZSJ v ZSK [2021] NSWCATAP 144 at [29]. Nonetheless, there must be some compelling reason to warrant the exercise of that discretion: ZSJ v ZSK at [29].
3. For the following reasons, we are not persuaded that the reasons advanced by the appellant justify the exercise of that discretion.
4. First, the second and third matters identified at [102] above could not reasonably be described as evidencing a change in the Mother's circumstances since the decision under appeal was made. Each relates to ongoing concerns raised by the appellant over a lengthy period and predate the decision under appeal. Notably, each matter has been the subject of unsuccessful applications made by the appellant for administrative review under the Administrative Decisions Review Act: see for example, DYH v NSW Trustee and Guardian [2022] NSWCATAD 150; DYH v NSW Trustee & Guardian, FFQ & FFZ [2022] NSWCATAD 297.
5. Second, the alleged deterioration in the Mother's health, while concerning if established, is not relevant to the decision under appeal, specifically the decision to appoint the Public Guardian as guardian for the Mother. If the Appeal Panel were to exercise the discretion to conduct a new hearing and to review the 2022 guardianship order, the primary question to be determined is likely to be whether the appellant meets the criteria for appointment in s 17(1) of the Guardianship Act. Whether the Public Guardian is likely to be better able to perform the role of guardian than the appellant is not relevant to that question. Similarly, the photographic evidence said to demonstrate that the Public Guardian has failed to discharge its role in a manner consistent with the section 4 principles is irrelevant to that question.

Leave to appeal

1. The appellant urges the Appeal Panel to grant leave to appeal. In support, she repeats the arguments made in support of the grounds of appeal and the application to have the appeal dealt with by way of a new hearing.
2. 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)
3. None of the factors listed in Collins which might warrant granting leave apply to the decision under appeal. While the decision under appeal is of great importance to the appellant, it raises no issue of general principle or importance and is confined to the specific facts of the case.
4. Leave to appeal is refused.

Orders 1. Leave to appeal against the decision made by the Guardianship Division of the NSW Civil and Administrative Tribunal on 27 July 2022, is refused. 2. The Appeal Panel declines to exercise the discretion under s 80(3) of the Civil and Administrative Tribunal Act 2013 (NSW) to deal by way of a new hearing the appeal against the decision made by the Guardianship Division of the NSW Civil and Administrative Tribunal on 27 July 2022. 3. The appeal against the decision made by the Guardianship Division of the NSW Civil and Administrative Tribunal on 27 July 2022, is dismissed under s 81(a) of the Civil and Administrative Tribunal Act 2013 (NSW).

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 December 2022