NSW Civil and Administrative Tribunal New South Wales Medium Neutral Citation: QFC (No 3) [2020] NSWCATGD 24 Hearing dates: 20 March 2020 Date of orders: 20 March 2020 Decision date: 20 March 2020 Jurisdiction: Guardianship Division Before: A D Suthers, Principal Member Dr B Chenoweth, Senior Member (Professional) R Royer, General Member (Community) Decision: In relation to the enduring power of attorney made by QFC on 19 February 2010 which appointed RBC and EZC as attorney(s) the Tribunal determines, orders or declares: not to carry out a review of the operation and effect of the enduring power of attorney. QFC is to lodge in the Tribunal and give to TAC any further submissions on her application for costs, within 14 days. TAC is to lodge in the Tribunal and give to QFC her submissions opposing the costs application, within 14 days of the Tribunal publishing its reason for decision in the substantive application. A hearing of the costs application is dispensed with. Catchwords: GUARDIANSHIP – application to review operation and effect of power of attorney – similar application previously dealt with by the Tribunal – allegations of inappropriate influence by attorney – proper considerations in exercising the discretion as to whether to conduct review­ - whether gift made indicated undue influence – no nexus between transactions and operation and effect of power of attorney – no indication that attorneys played any part in undertaking transactions – decision not to review power of attorney. INTERLOCUTORY – application for an adjournment – procedural fairness – COVID-19 pandemic – hearing to be conducted by telephone only – concern of inappropriate influence on subject person - whether hearing should be adjourned to a time at which it could be held in person – subject person in separate location to attorneys – no material risk of subject person being inappropriately influenced during hearing - telephone hearings usual course for Guardianship Division during pandemic – no procedural unfairness. Legislation Cited: Civil and Administrative Tribunal Act 2014 (NSW), ss 36, 36(1), 64(1)(d) Guardianship Act 1987 (NSW), ss 4, 4(b), 4(d)-(e), 4(g), Pt 3A Powers of Attorney Act 2003 (NSW), ss 36, 36(1), 36(4), 37(1), Div 4 of Pt 5 Cases Cited: Bradshaw v McEwans Pty Ltd [1951] 217 ALR 1 Gibbons v Wright [1954] HCA 17 QFC [2018] NSWCATGD 3 QFC (No 2) [2018] NSWCATGD 49 Susan Elizabeth Parker v Margaret Catherine Higgins [2012] NSWSC 1516 ZBC v ZBD [2016] NSWCATAP 264 Category: Principal judgment Parties: 003: Review of an Enduring Power of Attorney QFC (the person) TAC (applicant) RBC (attorney) EZC (attorney) NSW Trustee and Guardian Representation: Counsel: J O'Connor for TAC M Pringle for QFC Solicitors: Walsh & Blair for TAC McCullough Robertson for QFC File Number(s): NCAT 2017/00330439 Publication restriction: Decisions of the Guardianship Division of the Civil and Administrative Tribunal have been anonymised to remove any information that may identify any person involved in the Tribunal's proceedings: Civil and Administrative Tribunal Act 2013 (NSW), s 65. REASONS FOR DECISION Background 1. QFC is 80 years old and lives alone in her own home which she owns, in regional NSW. She has five children: TAC, EZC, RBC, BYC, and LXD. To aid in the clarity of these reasons, QFC's children will be referred to by their first names only. 2. On 19 February 2010, QFC appointed EZC and RBC to be her attorneys under an enduring power of attorney (the power of attorney). She also appointed EZC and RBC to be her enduring guardians. 3. There has been a lengthy history of litigation in this Tribunal and elsewhere, between TAC, QFC, EZC and RBC in relation to the power of attorney. TAC maintains that EZC and RBC operate on the power of attorney, and do so in a manner contrary to QFC's welfare and interests. 4. In the course of that litigation: 1. TAC initially applied for the appointment of a financial manager for QFC in 2017; 2. During the course of those proceedings, the Tribunal conducted an interlocutory hearing and made orders regarding the date of the substantive hearing, and directed the parties to produce information and documents. It also directed QFC to undergo cognitive assessment by a suitably qualified medical practitioner; 3. Before the substantive hearing, TAC applied for review of the operation and effect of the power of attorney; 4. At a further interlocutory hearing, the Tribunal made orders on QFC's request, adjourning the hearing that had been set down and extending the date for compliance with procedural directions; 5. Another interlocutory hearing was conducted to consider an application for leave for legal representation by QFC and an application that the Tribunal order, under s 64(1)(d) of the Civil and Administrative Tribunal Act 2014 (NSW) ("the CAT Act"), that evidence directed to be produced by EZC relating to QFC's financial affairs not be disclosed to parties other than QFC and her attorneys; 6. The Tribunal decided not to make an order under s 64(1)(d) of the CAT Act as requested. However the Tribunal did order that parties, other than QFC herself, were not to disclose this evidence to anyone who was not a party to the applications. The Tribunal provided written reasons for that decision: QFC [2018] NSWCATGD 3; 7. QFC then lodged an application for judicial review of that decision in the Supreme Court. The Court declined to make the orders sought and dismissed the application. (We have omitted the citation as it is known to the parties and the MNC of the matter identifies the parties by name); 8. The substantive applications were listed to be heard by the Tribunal on 10 April 2018, however on application by TAC, the proceedings were again adjourned, to allow her time to read and consider the material which was the subject of the non-disclosure application; 9. At a hearing on 28 May 2018, the application for the appointment of a financial manager for QFC was dismissed. In the application to review the power of attorney, the Tribunal decided to conduct the review but to make no orders (the first substantive decision): QFC (No 2) [2018] NSWCATGD 49. 10. TAC then appealed the first substantive decision to the Tribunal's Appeal Panel, but the appeal was subsequently withdrawn. 1. In its reasons for making the first substantive decision, the Tribunal had evidence that EZC and TAC had signed documents as QFC's attorneys, albeit only on her instructions: referred to at [25] of those reasons. It also made the following relevant findings, at [60]: 1. The Tribunal accepted that TAC made her applications in good faith on the basis of genuine concerns regarding her mother's financial affairs; 2. The Tribunal accepted that many of TAC's concerns were legitimate; her mother's investments in a privately operated company (the privately operated company) of which EZC was General Manager were not typical for a person in her circumstances, and exposed her to considerably more risk than might usually be the case; 3. That QFC was clearly very strongly influenced by EZC in the decisions that she has made regarding her investments, and that there were also legitimate concerns regarding EZC's role as attorney, in particular the likelihood of conflict of interest given his position as General Manager of the privately operated company, the absence of reliable records regarding the value of her investments, the discussions which led to changes in her investment strategy and goal, as well as decisions about individual investment purchases. 1. However notwithstanding the above, the Tribunal was satisfied, at [62], that: 1. The evidence established that QFC understood and was happy with her investments, and did not want any changes to the way in which she has arranged her affairs, including any changes to her attorneys; 2. If she did want to obtain her own advice, or make changes, she was able to do so. The Tribunal noted that QFC's lawyers had consistently confirmed that in their view she was quite capable of giving instructions and of understanding the nature and effect of the enduring power of attorney; 3. Therefore, the Tribunal opined, there would have been no impediment to QFC executing a new enduring power of attorney if she wished; 4. In those circumstances, the Tribunal was not satisfied that it would be in QFC's best interests for the Tribunal to make any orders under s 36 of the Powers of Attorney Act 2003 (NSW) ("the POA Act"). 1. In relation to the application for the appointment of a financial manager for QFC the Tribunal found that: 1. On the consistent medical evidence before it, QFC had some early cognitive changes, resulting in some memory loss which fell short of a diagnosis of dementia. The examining doctors opined that that QFC was capable of making all necessary decisions on her own behalf regarding her finances: at [68]; 2. QFC's evidence regarding her financial situation remained consistent through the hearing: that she makes her own decisions based on recommendations from EZC whom she trusts, that she understood that not all of her investments generated income, (trading this off for a potential future capital gain), and that she changed her mind about the degree of risk she was prepared to tolerate and understood and accepted the risks of her investments at that time: at [70]; and 3. On the available evidence, the Tribunal was not satisfied that QFC was incapable of managing her own financial affairs and that she was not someone for whom the Tribunal could make a financial management order: at [72]. The present proceedings 1. TAC has now, again, sought review of the operation and effect of the power of attorney. 2. She has done so, she says, because she discovered since the first substantive decision that QFC's financial affairs had been impacted by the purchase of the privately operated company by a publicly listed company. Her investigations also indicated that share transfers undertaken by QFC in the course of that transaction would confer a substantial benefit on EZC and RBC: statement of TAC dated 6 March 2020, at [56]. 3. She was also motivated, she says, by the negative impact the earlier proceedings had on her relationship and that of her children with QFC and concerned that there had been an impact of QFC's relationship with her sisters, BYC and LXD: ibid at [57] and [58]. 4. She acknowledged having had little contact with QFC since the last proceedings: ibid at [58]. 5. Having initially been motivated by a concern that QFC had been inappropriately influenced by EZC in investing in the privately operated company, she was now concerned that QFC was inappropriately influenced by EZC and RBC in divesting herself of shares for their benefit and in engaging in the process of the sale of her shares, on terms, with the publicly listed company which bought it: ibid, at [60]. 6. In addition to her concerns to ensure QFC's financial affairs were not adversely impacted by reliance on or influence by EZC and RBC as attorneys, TAC was motivated in bringing the application by a desire to "gain back" her relationship with her mother: ibid at [61]. Interlocutory issues 1. TAC issued several Summonses, directed to the privately operated company and to the publicly listed company that bought it, for documents about the sale, and to QFC's bank for production of her statements on named accounts. 2. Prior to the Hearing, the Tribunal managed the return and access to those documents via directions. Suffice to say that the documents returned by the two companies were in some aspects redacted on return and that the Tribunal allowed the release to TAC of the those documents only with further redactions relating to the personal details of parties not involved in this application. 3. Significantly, the documents returned on summons from the two companies indicate that QFC's consent to the transactions which constituted her part in the sale and her acquisition of shares in the publicly listed company were signed on her behalf by her attorney, Mr X. That power of attorney was never put into evidence before us. We do not know when it was executed or if it is expressed to continue if QFC loses capacity to manage her affairs, i.e., whether it is an enduring power of attorney. 4. As indicated earlier, with leave of the Tribunal both QFC and TAC were legally represented by solicitors and counsel at the hearing. The Hearing 1. QFC attended the hearing by telephone, represented by counsel, as did TAC. EZC and RBC appeared by telephone, unrepresented, and played little part in the proceedings. A preliminary application for an adjournment and QFC's view 1. This hearing was conducted at the outset of the effects on the Tribunal of the COVID-19 pandemic. On that basis, the parties were only offered a hearing by telephone. 2. On the morning of the hearing, TAC sought an adjournment to a time when a hearing in person could be conducted. She relied on her concern that it would be procedurally unfair to all parties to proceed otherwise. She referred to her concern that QFC is subject to inappropriate influence by EZC and RBC. 3. Each other party opposed the adjournment. Whilst she did so through her counsel, QFC indicated that she had prepared something that she wanted to say. Proceedings in the Guardianship Division are generally conducted informally, and given that the proceedings should be conducted with a focus on promoting her welfare and interests, together with the fact that TAC had not had the opportunity to hear her mother's views, in person, for some time, we decided that was appropriate. 4. QFC expressed her views in the following terms: …It's been so stressful devastating and depressing that to this day, I have no idea why three of my daughters, that [TAC], [BYC] and [LXD] are putting me through this. I continue to ask myself, what is their objective? Of equal concern to me, why is NCAT allowing this persecution to continue? I am now here in round 3 of an action that should never have been allowed to start. I contend that it is NCAT who are responsible for the expense of $150,000 that I have had to spend to defend myself against three of my children and a government organisation that I want nothing to do with. I am of sound mind. I make my own decisions. I am a very private person. I live by myself and I don't want my children or the government interfering in my private affairs. NCAT has allowed this action to continue and have condoned my daughter's behaviour when it should have protected me and shut this thing down. These actions have been going through all this aggravation over and over and over again, killing me and making my life a misery. In a lot of people's opinion including many of my friends, this has been and continues to be elder abuse, that is what it feels like to me. I will say it again, I believe this process has been and continues to be elder abuse. I'm living happily the way I choose. I have been for years. Regarding my financial and life decisions: [TAC] says she has had [a] close relationship with me, well over the last two years that it is simply not true. I have been evasive with her as I do not trust her. It is my life decision and quite frankly it is none of your business. [RBC] and [EZC] were my chosen power of attorneys and enduring guardians, they have been a wonderful support to me before, during and will be after this whole sordid mess is finally over. At these NCAT hearings, [TAC] has taken my strength, anxiety and confusion, then using it against me when in actual fact, it is her and her sisters continual nagging and interference in my life through the NCAT process that is clear to me. Three of my daughters have forced me into a corner and I've spent all the spare cash I have. I had to sell shares to fund my defence against them. Even now there is information [TAC] could have obtained herself that I have had to pay solicitors to produce it for me. 1. QFC concluded: My money is mine. I do what I want with it. This process has been devastating for me and now my family is split. I want it stopped and I want it stopped today. I want [RBC] and [EZC] to continue to be my powers of attorney and my enduring guardians. [TAC]'s text to me at the last mediation: "I never want to see you again." Now, that's all I've got to say at the moment that I've made very sincerely. 1. QFC was in a separate location from EZC and RBC for the hearing. We were not satisfied that there was any material risk of her interests being compromised by inappropriate influence from those parties, at least whilst we undertook a preliminary enquiry as to whether we should conduct a review of the power of attorney, as we will refer to later. 2. Further, it was apparent that the effect of adjourning the proceedings to a date, likely to be after October 2020, for a hearing in person would have a negative impact on QFC's welfare and negatively impact on her family relationships, given her clearly expressed views. 3. As to the argument that proceeding by telephone would be procedurally unfair to TAC, who was the only party who raised the issue, we were not satisfied this was the case. 4. On 27 February 2020 the Emergency Response Plan for Novel Coronavirus (COVID-19) was activated in Australia. On 12 March 2020, the World Health Organisation declared that COVID-19 can be characterised as a pandemic. In those extraordinary circumstances, hearings being conducted by telephone, which is not unusual in the Guardianship Division in any event, was a necessary and proportionate alteration to the usual practice and procedure of the Division in offering in-person hearings. We were satisfied that if TAC's position was accepted and procedural fairness could only be provided by an in person hearing where requested, it would be incompatible with the due administration of justice by the Tribunal and would not promote the objects of providing the resolution of applications in a way which is not only just, but also quick and cheap: CAT Act, s 36(1). 5. We refused the application for an adjournment. Clarification of what was sought by TAC in the application 1. In submissions made in writing on her behalf prior to the hearing, it appeared that TAC may not, in fact, have sought to have us make orders under s 36(4) of the POA Act, but rather, only sought to have us decide to review the power of attorney and treat it as an application for a financial management order. 2. We clarified that with her counsel and with TAC. TAC's position, despite the history of the matter and her mother's views expressed moments earlier and recorded at [22] and [23] above, was that as a primary position she sought to have us make orders under s 36(4) of the POA Act to remove EZC and RBC as her mother's attorneys and substitute her in their stead. Her secondary position was that we should treat the application as one for the appointment of a financial manager for QFC, and appoint her to that role. What did the Tribunal need to consider, to engage with TAC's application? 1. At no time during the present proceedings has TAC sought to secure evidence by summons or present evidence that there has been ongoing decline in QFC's cognition or ability to understand her financial affairs. Despite the Tribunal making orders for QFC to be professionally examined in the earlier proceedings before the Division, no such application has been made here. Nor have there been any summonses issued to QFC's treating medical practitioners or other treating allied health professionals. 2. It is clear from written submissions on TAC's behalf that she does not agitate for a finding that QFC is impaired in her decision making due to cognitive decline. She relies on an assertion that QFC's will is, at least to some extent, subverted to that of EZC and RBC due to their influence on her and by her being misinformed as to the nature of her investments. TAC submits that that this should lead to the Tribunal exercising its discretion to review the power of attorney and making orders, even if QFC's mental capacity is perfectly sound: [33] of the Applicant's submissions, 13 March 2020. We accept that this option is available to us, particularly if we are satisfied as to the findings TAC posits we should make. 3. The Tribunal's jurisdiction in relation to the review of the operation and effect of reviewable powers of attorney is set out in Div 4 of Pt 5 of the POA Act. 4. The Tribunal may, on the application of an interested person (a person with standing), decide to review the making of a reviewable power of attorney: POA Act, s 36(1). 5. When reviewing the operation and effect of the power of attorney, the Tribunal may, relevantly to what we were asked by TAC to do here, make an order removing a person from office and an order appointing a substitute attorney to replace that attorney: POA Act, s 36(4). 6. In the alternative, we may decide not to make any orders in respect of the review and, in that event, may treat the application as an application for a financial management order under Pt 3A of the Guardianship Act 1987 (NSW) if we consider it "appropriate in all the circumstances to do so": POA Act, s 37(1). The conduct of the hearing 1. In Susan Elizabeth Parker v Margaret Catherine Higgins & Ors [2012] NSWSC 1516 (Parker), Slattery J stated [at 80]: On an application for s 36 review such as this the Court must first exercise a discretion under Powers of Attorney Act, s 36(1) to decide whether or not to conduct a s 36 review. In my view the Court does not have to conduct a full review of all documents associated with the operation of the subject power of attorney to do this. Something short of a full review must be able to justify the exercise of the s 36(1) discretion as to whether or not the Court should conduct a full s 36 review. In the circumstances of this case the Court can glean sufficient information to exercise the s 36(1) discretion by undertaking a general survey of what [an attorney] has produced. 1. Even though those comments were made in the context of an application for an attorney to account, we are satisfied that they are apposite to our task here. In the circumstances of that matter, Slattery J went on, at [81], to record the following which is also apposite: Secondly, such an approach is especially justifiable where the principals … have instructed counsel to oppose the application for review and nothing has emerged from the general survey which indicates any maladministration on [the attorney's] part as her parents' attorney. 1. On that basis, we invited TAC to explain, on the material before us, why we should conduct a review of the power of attorney. We did so without objection from QFC, who had raised concern as to whether TAC had standing to make the application in her written submissions. 2. Prior to doing so, we pointed out to TAC that we had been unable to identify evidence that EZC and RBC were in fact operating on the power of attorney at all, given that the evidence only indicated that QFC's recent share transactions were conducted on documents signed by Mr X as her attorney. 3. TAC's position was that: 1. QFC's statements referred to in [22] and [23], above, indicate that EZC and TAC are continuing to act as QFC's attorneys because she said words to the effect that she had "appointed them in 2010, they are doing a great job and will continue to do a great job"; 2. QFC's bank statements, produced on summons, reveal that in transactions from 15 October 2019 to 29 January 2020 that: 1. On 27 November 2019 there is described an entry as a withdrawal of $11,489.93: payment to EZC for "[Removed for publication.] legal claim"; 2. On 8 January 2020 there is described a payment to "[Removed for publication.] irrigation" (said to be related to RBC) of $5,000.00; and 3. On 29 January 2020 there is described a transfer said to be made from the account at regional Queensland of $766,708.00. 1. TAC submits that this is evidence that the power of attorney was being acted upon and that "this could be explained by [QFC]". 2. TAC says that since, at the earlier hearing, QFC acknowledged that EZC and RBC had been acting on the power of attorney to that point, we could take the evidence referred to above and infer that the power of attorney continues to be operated on by EZC and RBC, because it was evidence that the attorneys had access to the accounts and had used the accounts and distributed her funds. 3. TAC referred to what she saw as a concerning change in QFC's financial interests since the purchase of the privately operated company by the publicly listed company. She referred to the reasons for the Tribunal's first substantive decision, where the Tribunal found, at [49], that the cost of QFC's investment in the privately operated company was in the sum of $791,353.00 and that her interest at the date of hearing was valued at either $891,015.00 or $1,056,695.00, depending on the evidence. 4. TAC indicated that she had reviewed the material returned on summons by each of the two companies and from ASIC searches, contained within her bundle of documents filed in the proceedings. She submitted that a review of those sources revealed that there had been a significant loss to QFC occasioned by her involvement in the sale, and referred us to the source documents. 5. TAC also referred to transfers of shares in the privately operated company by QFC to EZC and RBC for payment of about $100,000.00, which indicated that the transfers were at an undervalue of approximately $250,000.00 when they were made and that the subsequent share value increase on the sale to the publicly listed company made the theoretical 'loss' occasioned to QFC by the transfers even more significant. The total theoretical 'loss' to QFC's estate was said to be in the order of $1.15m. 6. In response, QFC submitted that the documents referred to by TAC did not present a complete picture of the benefit QFC received through the sale of the Company. She said that, in addition to what was apparent to TAC, she also received other shares. Counsel for QFC indicated that she had before her, and could tender, a single page "dashboard for the primary investor – my portfolio" document, which demonstrated that QFC holds a portfolio value in the publicly listed company, after the transfers to EZC and RBC, with a value in February 2020 of $1,398,126.55. 7. Counsel for QFC apologised that this document had not been made available to counsel for TAC, but indicated that it could be emailed to TAC's representatives and to the Tribunal. 8. QFC submitted that there was no evidence that the attorneys have undertaken the actions referred to at [41(2)] and that if they did it may be simply be that they were authorised to operate on the accounts as signatories. 9. After some discussion, and standing the matter down for counsel for TAC to be provided with the "dashboard for the primary investor – my portfolio" document to consider, TAC objected to our receiving it because it had not been provided earlier and would not assist the Tribunal to deal with the real issues in dispute. In the end, we were satisfied that we could proceed without ruling on the objection and without the document itself. QFC's submission on this point was that "If [TAC] doesn't wish to understand how the shares are held, then her fears cannot be allayed in any shape or form." There is some strength to that submission. In any event, we are not bound by the rules of evidence and can simply accept that, on instructions to her solicitors and counsel, QFC asserts that she has not suffered any loss. The value of QFC's portfolio after the sale of the privately operated company is a relevant but not a decisive issue, for reasons we will return to. 10. In relation to the transfer by QFC to EZC and RBC of shares in the privately operated company prior to its sale to the publicly listed company, at an apparent undervalue of $250,000.00, it was submitted for QFC that this was, in essence, a gift in respect of the 'undervalue' to reflect QFC's appreciation to them for the efforts they have made on her behalf. QFC reiterated that she was entitled to make whatever decisions she chose in relation to her financial affairs and that she was not left without means. 11. EZC and RBC both submitted that there was no basis for us to conduct a review of the power of attorney. Our consideration of the application and decision not to conduct a review of the power of attorney 1. Having reviewed the evidence before us and given the parties the opportunity to make submissions, we were satisfied that we had undertaken more than the "general survey" referred to by Slattery J in Parker, referred to at [37], above. On that basis, we were in a position to decide whether to exercise our discretion to review the power of attorney. 2. The discretion as to whether to review a power of attorney, granted by s 36(1) of the POA Act, is unfettered by any express requirements of that Act but it must be exercised having regard to the statutory context in which the Tribunal operates. We may also have regard, when determining what is relevant to our discretion, to other legislation on the same subject or matter. 3. In most respects, the Tribunal in making a decision in its Guardianship Division is bound to take into account the principles set out in s 4 of the Guardianship Act, which states: 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. 1. Those principles represent a statutory embodiment of the requirement to consider the welfare and interests of a person about whom an application under the Guardianship Act is made, and the various, often counterbalanced, considerations that should properly be considered in that process. 2. Determining an application to review a power of attorney is not, however, the exercise of a function under the Guardianship Act. There is no explicit correlation in the discretion as to whether to review a power of attorney to that Act. 3. We would be required to give effect the s 4 principles, however, if we decided to review the power of attorney and treat it as an application for the appointment of a financial manager for QFC. Similarly, if we were to conduct a review of the power of attorney and consider making orders under s 36(4) of the POA Act, our discretion would be limited, in the absence of evidence that the proposed order would "better reflect [QFC's] wishes," to making orders only if we are satisfied that it would be in QFC's "best interests to make the proposed order(s)": POA Act, s 36(4). 4. On that basis, we are satisfied that if they have any application on the evidence or the cases advanced before us, the matters contained in s 4 of the Guardianship Act are relevant, although not mandatory, considerations in the exercise of our discretion. We take support in that view from the decision of the Appeal Panel of the Tribunal in ZBC v ZBD [2016] NSWCATAP 264, at [101] and [102]. We must also comply with the guiding principle in s 36 of the CAT Act to resolve the real issues in dispute in a way which is just, quick and cheap. 5. In exercising a discretion 'judicially,' we are required to take all relevant and no irrelevant considerations into account. In our view, the decision we are to make in relation to whether or not to review the power of attorney can be properly be considered to be a single exercisable discretion, in that it is to be made once, after taking all relevant considerations into account. In order to provide transparency to how we went about exercising the discretion, though, it is necessary that we set out our considerations in these reasons, sequentially. 6. We proceeded to consider the exercise of our discretion, taking into account the following issues: 1. Was there evidence to rebut the presumption that QFC was cognitively able to make decisions about her own financial affairs? – to recognise the presumption that an adult should be presumed to have capacity for all legal acts unless that presumption is rebutted by cogent evidence; 2. Was there evidence that QFC was exposed to exploitation or loss, through inappropriate influence or otherwise, particularly in the operation and effect of the power of attorney? – to engage with the concerns outlined by TAC and the principle contained in s 4(g) of the Guardianship Act; 3. How should those findings be considered in favour of the exercise of our discretion to review the power of attorney, where doing so: 1. Would impact upon QFC's decision not to involve TAC in her financial affairs, even to the extent of engaging in a review of financial decisions QFC has made? – referable to the principles contained in ss 4(b) and 4(d) of the Guardianship Act; 2. Would be contrary to QFC's clearly expressed view that we should not? – referable to the principles contained in ss 4(b) and 4(d) of the Guardianship Act; and 3. Does not appear likely, despite TAC's expressed wish referred to at [13] above, to promote the preservation of QFC's family relationships – referable to the principle contained in s 4(e) of the Guardianship Act. 1. Finally, is there any other reason why we should review the power of attorney, to best promote QFC's welfare and interests or otherwise? Was there evidence to rebut the presumption that QFC was cognitively able to make decisions about her own financial affairs? 1. As we indicated above, TAC did not contend, and there was no evidence that, there had been further decline in QFC's cognition. QFC is entitled to the presumption that she has the cognitive ability to make decisions both as to the management of her financial affairs and as to who she chooses to be her attorneys. That presumption has not been displaced: Gibbons v Wright [1954] HCA 17. Was there evidence that QFC was exposed to exploitation or loss, through inappropriate influence or otherwise, particularly in the operation and effect of the power of attorney? 1. TAC asserts that QFC is subject to inappropriate influence or the provision of incomplete information by EZC and RBC which, in effect, overbears her free will. 2. We should pause to point out that "undue influence" has a meaning, in a legal sense, which is well described. It was not argued before us, though, that the influence of which TAC was concerned met that legal definition. Rather, we understood her submission to be that QFC was constrained in the exercise of her free will, particularly concerning her financial affairs, by her reliance upon EZC and RBC for information and advice and/or the influence they had upon her. The difference may, in the end, be one only of semantics. 3. There was no direct evidence before us which supported TAC's contention. At its highest, it was inferentially supported by the following issues, which we will address in turn. 4. The first issue is the Tribunal's finding in the first substantive decision, referred to above, that: … [QFC] is clearly very strongly influenced by [EZC] in the decisions that she has made regarding her investments, and that there were also legitimate concerns regarding [EZC]'s role as attorney, in particular the likelihood of conflict of interest given his position as general manager of the privately managed company… 1. We accept that there is an inference which we should draw from this. In considering this issue we refer to QFC's comment that: [RBC] and [EZC] were my chosen power of attorneys and enduring guardians, they have been a wonderful support to me before, during and will be after this whole sordid mess is finally over. 1. We have no reason to find that QFC's relationship with EZC has altered since the first substantive decision was handed down, given this evidence. However the inference we draw is that QFC is still "… very strongly influenced by [EZC] in the decisions that she has made regarding her investments". This does not lead to a conclusion that EZC continues to operate on the power of attorney. Nor is there evidence we were taken to that EZC retains a management role in the publicly listed company. We must also consider that inference in the context of the Tribunal's finding in the first substantive decision, at [71], that "[c]ertainly [QFC] relies heavily on [EZC]'s advice, and her high regard for him may cloud her judgement to some extent. However there is no persuasive evidence that she is not capable of rejecting [EZC]'s proposals, if she considered that they were not in her best interests, even if her inclination is generally to accept his advice." 2. The second issue is TAC's assertion that EZC and TAC have continued to act on the power of attorney, said to be evidenced by QFC's comments, and: 1. The transfers of money to EZC and TAC of the amounts of $11,489.93 and $5,000.00, respectively, referred to above; and 2. The transfer of $766,708.00 from QFC's account on 29 January 2020, apparently initiated from a branch in regional Queensland. 1. In relation to QFC's comments on this issue, what she said, relevantly, was: [RBC] and [EZC] were my chosen power of attorneys and enduring guardians, they have been a wonderful support to me before, during and will be after this whole sordid mess is finally over… …I want [RBC] and [EZC] to continue to be my powers of attorney and my enduring guardians. 1. This is not, in our view, evidence upon which we could reasonably infer that the transactions of concern to TAC were undertaken by EZC or RBC as attorneys. It was not tantamount, as put in submissions for TAC, to QFC saying words to the effect that she had "appointed them in 2010, they are doing a great job and will continue to do a great job". We are satisfied that the comments made by QFC were responsive to TAC's application for orders under s 36(4) of the POA Act. 2. As to the first group of bank transactions, QFC's position, put through her counsel, was that the transfers could have been undertaken by EZC or RBC as authorised signatories on the account, we infer, at the direction of or with the consent or acquiescence of QFC. 3. There was no evidence or direct submission from QFC as to the last bank transaction, but we have no reason to infer that the position in relation to it was any different to the others. For completeness, there was no exploitation of QFC evidenced by this transaction, as there was a corresponding deposit to another of her accounts on the same day. In our view, the evidence that the transaction may have been initiated interstate, without more, takes the matter nowhere. 4. In summary, in relation to these issues, there is no evidence that the transactions: 1. Took place without QFC's express authority and approval; or 2. Were the result of EZC or RBC operating on the power of attorney, such as to warrant a review of the power of attorney. 1. As to whether EZC or RBC are operating on the power of attorney, the direct evidence is equivocal at best. It may be possible to infer that they are, but we were not reasonably satisfied we should draw that inference. Equally, there is an inference available that QFC appointed Mr X as her attorney so that EZC and RBC would not be required to act on the power at this time: Bradshaw v McEwans Pty Ltd [1951] 217 ALR 1 at [5]. 2. The third issue relied upon by TAC was QFC's transfer to EZC and RBC of shares at an undervalue, prior to the sale of the privately operated company. Whilst we considered TAC's position as a whole, in our view, this was her strongest argument in favour of a review of the power of attorney. There has certainly been a diminution of QFC's estate through the gifts to EZC and RBC. If that is considered, in hindsight, to include the theoretical 'loss' occasioned by the subsequent increase in the value of the shares on sale to the publicly listed company, the diminution is significant. We accepted that this evidence revealed that QFC was exposed to loss. Given her reliance on EZC for her investment advice, and his apparently intimate knowledge of the management of the privately operated company, we were willing to assume, without direct proof and for the purpose of the exercise of our discretion only, that he may have been aware when the gift was made that the share price may rise significantly and imminently. In doing so, we accepted that there was a risk that QFC may not have had a full appreciation of the true value of her gift to EZC and RBC when it was made. 3. Even in relation to this issue, though, there are countervailing considerations we must have regard to, where: 1. A finding that EZC is influential in respect to QFC's investment strategies does not equate to a finding that QFC is unable to freely decide on the nature of any gift she might wish to make to EZC or RBC; 2. QFC indicated through her counsel that this was, in effect, a gift which she made freely and voluntarily; 3. QFC, with the benefit of independent legal advice, raised no concern about this issue even with the benefit of knowing, in hindsight, the amount eventually received for the shares on sale to the publicly listed company; 4. QFC is not without means, and is of sufficient means that the gift, whilst generous, should be considered against the backdrop of her financial affairs more broadly; and 5. Most importantly, there was nothing to indicate, by direct evidence or reliable evidence from which we may draw an inference, that EZC or RBC played any part in QFC's decision to undertake these transactions or signed on her behalf as attorneys to bring them into effect. Of course, EZC and RBC benefitted from the transactions and EZC had been influential in QFC's investment strategies, but it would, in our view, be unsustainable to infer that this, without more, indicated that they had exerted pressure or influence on QFC in the decision to make gifts to them to her financial detriment. 1. Weighing these findings in our consideration of the exercise of our discretion more broadly, we were satisfied that there was some evidence that QFC was exposed to loss through her gifts to EZC and RBC. There was no sufficient probative evidence, however, of inappropriate influence by EZC or RBC, and no evidence at all of a nexus between the transactions and the operation and effect of the power of attorney, to warrant a review of the power of attorney when weighed against the countervailing considerations we set out in [61(3)] above. 2. Finally, in terms of the promotion of QFC's welfare and interests more generally, we had no evidence upon which to properly base a finding that she had been financially disadvantaged by the sale, on terms, of her remaining shares in the privately operated company. The evidence returned on summons and recorded in the documents produced from ASIC was not such as to indicate this definitively and QFC asserted to the contrary. In any event, this issue would also not be decisive, given our findings above. QFC could have made a significant profit despite being subject to inappropriate influence by and reliance upon EZC and RBC, or have suffered badly in her financial dealings, absent that situation. 3. Taking all of those considerations into account, we were not satisfied that we should review the power of attorney. 4. We gave the parties our decision orally. QFC indicated that she sought costs against TAC in the application, as foreshadowed in her written submissions. We made directions to deal with that application, which the parties agreed should be dealt with on the papers. ********** 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 Amendments 19 August 2020 - Cover sheet amendment: Publication Restriction 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: 19 August 2020