Civil and Administrative Tribunal New South Wales Medium Neutral Citation: ZRY v NSW Trustee and Guardian & ZRZ [2021] NSWCATAP 181 Hearing dates: 26 November 2020 and 25 February 2021 Date of orders: 22 June 2021 Decision date: 22 June 2021 Jurisdiction: Appeal Panel Before: C P Fougere, Acting Deputy President J Moir, Senior Member M Spencer, General Member Decision: (1) Leave to appeal is refused. (2) The appeal is dismissed. Catchwords: APPEAL – Civil and Administrative Tribunal (NSW) – Guardianship Division – internal appeal – question of law – whether the appellant was denied procedural fairness – whether Tribunal prevented witnesses from taking part – allegation of bias – leave to appeal on other ground – disputed diagnosis of dementia – no question or principle or policy raised – no manifest error in the decision or decision making process – leave refused – appeal dismissed. Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) ss 4, 32(4), 36(1), 38(2), 38(5)(c), 65(1), 65(3), 80(2), 80(2)(a)-(b), 81, Sch 6 cl14(1)(b) Guardianship Act 1987 (NSW) s 25P(2)(a)-(b), Cases Cited: Adamson v Ede [2009] NSWCA 379, [59]-[61] C v W [2015] NSWSC 1774, [44] Clements v Independent Indigenous Advisory Committee [2003] FCAFC 143, [8] Collins v Urban [2014] NSWCATAP 17, [84] F v NSW Trustee and Guardian [2017] NSWSC 1319, [41] Italiano v Carbone [2005] NSWCA 177 John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [13(4)] Neill v Nott [1994] HCA 23 P v NSW Trustee and Guardian [2015] NSWSC 579, [190]-[198] Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1 Ritson v Commissioner of Police, New South Wales Police Force [2019] NSWCA 106, [25]-[27] SAB v SEM [2013] NSWSC 253, [8]-[10] Wootten v Godfrey [2019] NSWCATAP 255 Texts Cited: Nil Category: Principal judgment Parties: ZRY (Appellant) NSW Trustee and Guardian (First Respondent) ZRZ (Second Respondent) Representation: Nil File Number(s): 2020/00371007 (AP 20/36699) Publication restriction: The publication of the name of any of the parties or other people referred to in this decision including the publication of any information picture or other material that identifies them or is likely to lead to their identification is prohibited. Decision under appeal Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Guardianship Division Citation: N/A Date of Decision: 29 May 2020 Before: R H Booby, Senior Member (Legal) M A Martin, Senior Member (Professional) File Number(s): 2019/00145609 REASONS FOR DECISION 1. ZRY appeals against the decision made by the Guardianship Division of the NSW Civil and Administrative Tribunal (Tribunal) on 29 May 2020 to confirm the financial management order originally made in respect of ZRY on 3 June 2019. This left in place the NSW Trustee and Guardian as the manager of ZRY's estate. 2. For ease of reference, in the remainder of these Reasons for Decision ZRY will be referred to as "the appellant". 3. ZRZ is ZRY's daughter and appointed attorney, although the relevant enduring power of attorney has not been brought into effect. ZRZ will be referred to as "the appellant's daughter". 4. For the reasons set out below we now dismiss the appeal. Publication of the names of the parties 1. The publication or broadcast of the name of any person, who is mentioned or is otherwise involved in an internal appeal against decisions made by the Tribunal is prohibited under s 65(1) of the Civil and Administrative Tribunal Act 2013 (NSW) ("CAT Act"). Being an official report of the appeal proceedings, that prohibition does not apply to these Reasons for Decision due to s 65(3) of the CAT Act. Nonetheless, because of the sensitive nature of the matters raised in these proceedings, we will not refer to the parties by name but use the descriptors as previously noted. Background to appeal 1. In June 2017 the appellant appointed his daughter as his attorney pursuant to an enduring power of attorney. She accepted that appointment in July 2017. The appointment was stated in the document to come into effect when a medical practitioner determines that the appellant is not able to manage his affairs. 2. The enduring power of attorney has never been brought into effect. 3. An employee of the aged care facility in which the appellant lives made an application for the appointment of a financial manager for the appellant. The basis for the application was a debt owed by the appellant to the aged care facility of over $40,000. 4. Following a hearing on 3 June 2019 the Tribunal made a financial management order and committed the management of the appellant's estate to the NSW Trustee and Guardian. 5. In January 2020, the appellant lodged an application seeking a review of the financial management order. In March 2020, the Tribunal made directions regarding the submission of evidence and adjourned the hearing. The hearing of the review application was listed to be heard on 29 May 2020. 6. In May 2020, the appellant lodged a second application seeking review of the financial management order. 7. Both of the appellant's applications were heard on 29 May 2020 and following the hearing, the Tribunal confirmed the financial management order. 8. The Tribunal was not satisfied that it could revoke the financial management order on the basis that the appellant was capable of managing his affairs (Guardianship Act 1987 (NSW) ("Guardianship Act"), s 25P(2)(a)). The Tribunal stated (at [60]) that: In paragraphs 51 to 59 above we have outlined with regard to specific financial matters, our conclusions regarding [the appellant's] ability to manage his affairs. We are also of the view that in a more general sense, [the appellant's] presentation during the hearing demonstrated perseveration and a rigidity that resulted in him not dealing in a reasonable, rational or orderly way with the matters raised during the hearing. In our view the evidence before us and our conclusions as outlined indicate that [the appellant] is not able to deal reasonably, rationally and competently with his financial affairs and therefore he is not able to manage his affairs. The order cannot be revoked on the basis of [the appellant's] ability to manage his affairs. 1. Nor was the Tribunal satisfied that it could revoke the financial management order on the basis that it was in the appellant's best interests to do so (Guardianship Act, s 25P(2)(b)). The Tribunal stated (at [63]) that: The ongoing involvement of a financial manager facilitates the payment of at least part of the fees payable at the aged care facility and in doing so assists [the appellant] to maintain his accommodation. In our view it is not in his best interests to revoke the order and risk loss of his accommodation. Appeal hearing process 1. At a callover conducted on 8 September 2020, a separate representative was appointed for the appellant. 2. Material filed before us indicated that the Legal Aid Commission refused a grant of aid for the provision of a separate representative. The appellant appealed this decision to the Legal Aid Review Committee. In a letter from the Legal Aid Commission dated 13 November 2020, the appellant was advised that it would take between six to ten weeks for the matter before the Legal Aid Review Committee to be decided. 3. The hearing of this appeal commenced on 26 November 2020. The appellant was unrepresented and although he did not initially request an adjournment of the hearing, he subsequently did so following our invitation to request one. The appellant sought an adjournment pending the outcome of his appeal to the Legal Aid Review Committee. The appellant also indicated that should the Legal Aid Commission decide not to grant aid for a separate representative, he wished to obtain his own legal representation at the appeal hearing. 4. We granted the appellant's request to adjourn the appeal hearing. We also directed that the appellant provide by mid-January 2021 a copy of the sound recording or a transcript of the hearing on 29 May 2020 if he wished to rely upon what happened at that hearing to support his grounds of appeal. A direction had been made in similar terms at the callover on 8 September 2020. However the appellant had not filed the material as directed even though his appeal grounds were largely focussed on what he asserted to be the unfair treatment he received during the 29 May 2020 hearing. 5. The appeal hearing resumed before us on 25 February 2021. The appellant informed us that his appeal to the Legal Aid Review Committee was unsuccessful and he did not have a separate representative. Nor had he been able to arrange a legal representative. The appellant told us that he nevertheless wished to proceed with the hearing of his appeal. 6. The appellant had by this time filed an audio recording of the hearing on 29 May 2020. Appeal framework 1. The decision under appeal in this matter is an "internally reviewable decision" (CAT Act, ss 4 and 32(4)). A party may appeal an internally reviewable decision on any question of law or with the leave of the Appeal Panel on any other ground (CAT Act, s 80(2)(b)). 2. Section 81 of the CAT Act sets out the orders that may be made on appeal: 81 Determination of internal appeals (1) In determining an internal appeal, the Appeal Panel may make such orders as it considers appropriate in light of its decision on the appeal, including (but not limited to) orders that provide for any one or more of the following: (a) the appeal to be allowed or dismissed, (b) the decision under appeal to be confirmed, affirmed or varied, (c) the decision under appeal to be quashed or set aside, (d) the decision under appeal to be quashed or set aside and for another decision to be substituted for it, (e) the whole or any part of the case to be reconsidered by the Tribunal, either with or without further evidence, in accordance with the directions of the Appeal Panel. (2) The Appeal Panel may exercise all the functions that are conferred or imposed by this Act or other legislation on the Tribunal at first instance when varying, or making a decision in substitution for, the decision under appeal. The appeal 1. As the appellant was unrepresented, we assisted him to refine his grounds of appeal following further clarification by the appellant in his written and oral submissions: see Neill v Nott [1994] HCA 23. As a result, the appellant confirmed the following constituted his grounds of appeal: 1. The Tribunal denied the appellant procedural fairness by preventing his witnesses from participating in the hearing (the "Participation of witnesses" ground); 1. The Tribunal treated the appellant unfairly, acted in a hostile manner and was biased against him. As a result, the appellant was denied a fair hearing and this constituted a denial of procedural fairness (the "Allegation of bias" ground); 1. The Tribunal relied on evidence that the appellant has a diagnosis of dementia, which is incorrect, and all references to dementia should be removed from his records (the "Disputed diagnosis of dementia" ground) 1. A denial of procedural fairness is a question of law: Italiano v Carbone [2005] NSWCA 177; Clements v Independent Indigenous Advisory Committee [2003] FCAFC 143 at [8]; John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [13(4)]. 2. Accordingly, if a denial of procedural fairness is established, the appellant has a right to appeal and leave to appeal is not required (CAT Act, s 80(2)(a)). 3. The remaining ground of appeal (the disputed diagnosis of dementia ground) necessitates the granting of leave to appeal (CAT Act, s 80(2)(b)). 4. The principles which govern the granting of leave to appeal are set out in Collins v Urban [2014] NSWCATAP 17 at [84]. The particular considerations relevant to the granting of leave in a protective jurisdiction are explained in a number of decisions (P v NSW Trustee and Guardian [2015] NSWSC 579, [190]-[198]; F v NSW Trustee and Guardian [2017] NSWSC 1319, [41]; SAB v SEM [2013] NSWSC 253, [8]-[10] (White J)). 5. In C v W [2015] NSWSC 1774, when discussing the principles relating to the granting of leave by the Court under cl 14(1)(b) of Sch 6 to the CAT Act, Lindsay J (at [44]-[46]) stated, relevantly, that [44] Secondly, if leave is to be granted pursuant to clause 14(1)(b) for an appeal on a ground other than a question of law, the Court generally needs to be satisfied that there is a question of principle or policy, or a manifest error in the decision or decision-making process under review, which merits a grant of leave: Collins v Urban [2014] NSWCATAP 17 at [82]-[84], qualified, in cases involving an exercise of the Court's protective jurisdiction, by observations made in P v NSW Trustee and Guardian [2015] NSWSC 579 at [191]. Replies to appeal 1. The appellant's daughter supported the appellant in his appeal. 2. The NSW Trustee and Guardian advised in writing that "it has no issues or concerns regarding the decision to confirm the financial management order and also the content of the Reasons for Decision". Participation of witnesses 1. The appellant asserted that the Tribunal denied him procedural fairness by "locking out" three important witnesses from the hearing. 2. The appellant said that three of his witnesses attempted to connect to the telephone hearing, that they "called and called" but no-one answered. As a result, according to the appellant, the witnesses were unable to take part in the hearing and this resulted in an unfair hearing for the appellant. Discussion 1. The Tribunal is obliged to comply with the rules of natural justice (CAT Act, s 38(2)), one aspect of which is conducting the hearing in a procedurally fair manner. The Tribunal is also required to "…take 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" (CAT Act, s 38(5)(c)). 2. In Adamson v Ede [2009] NSWCA 379, Campbell JA (Giles and Hodgson JJA agreeing), referred to the content of the obligation of natural justice in court proceedings as follows: [59] Both in a court and in a tribunal, natural justice requires that a person be given a reasonable opportunity to present his or her case. However, as Gaudron J (with whom Dawson J agreed) pointed out in Re Association of Architects of Australia; Ex parte Municipal Officers Association of Australia (1989) 63 ALJR 298 at 305 (sub nom Re Coldham; Ex parte Municipal Officers Association of Australia (1989) 84 ALR 208 at 220): "… the fact that a hearing has taken place may have particular significance in determining whether or not the opportunity was given. As was pointed out by Deane J in Sullivan v Department of Transport (1978) 20 ALR 323 at 343, procedural fairness requires only that a party be given 'a reasonable opportunity to present his case' and not that the tribunal ensure 'that a party takes the best advantage of the opportunity to which he is entitled'. And it is always relevant to inquire whether the party or his legal representative should reasonably have apprehended that the issue was or might become a live issue: see Re Building Workers' Industrial Union; Ex parte Gallagher (1988) 62 ALJR 81 at 84; 76 ALR 353 at 358." (original emphasis) [60] The role of established procedures of courts, in deciding whether natural justice has been accorded to a litigant, is illustrated in Ex parte Fealey (1897) 18 NSWLR (L) 282 at 288 where Owen J (with whom GB Simpson J agreed) said: "A decision contrary to natural justice is where the presiding Judge or Magistrate denies to a litigant some right or privilege or benefit to which he is entitled in the ordinary course of the proceedings, as for instance where a Magistrate refuses to allow a litigant to address the Court, or where he refuses to allow a witness to be cross-examined, or cases of that kind." (emphasis added) [61] This principle stated by Owen J was applied in Ex parte Lucas (1910) 10 SR (NSW) 325 at 334 per Cullen CJ and in Ex parte Taylor; Re Butler (1924) 41 WN (NSW) 81 at 83 per Owen J, and was quoted by Gaudron and Gummow JJ in Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 at 98 [35]. 1. See also Ritson v Commissioner of Police, New South Wales Police Force [2019] NSWCA 106, [25]-[27] (Gleeson JA). 2. In Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1, Gleeson CJ emphasised that "fairness is not an abstract concept" and that the "concern of the law is to avoid practical injustice" (at [37]). 3. The appellant did not explain to us, either in the material he filed or in oral submissions, the substance of the evidence that these witnesses would have provided in the hearing that he contends would have been relevant to the Tribunal's decision making. It is unclear whether the appellant in fact wished to have these individuals give oral evidence or simply to listen to the proceedings as observers. 4. More fundamentally, we considered whether the Tribunal did in fact act in such a manner as to prevent the appellant "a reasonable opportunity to present his case" by impeding the appellant from these potential witnesses from participating in the hearing. 5. The hearing on 29 May 2020 was conducted entirely by telephone. All parties and participants took part by telephone as did one of the Tribunal members. These arrangements were necessitated by the COVID-19 pandemic. 6. The appellant asserts that three people who he describes as witnesses were "locked out" by the Tribunal from taking part in the telephone. 7. The appellant submitted the audio recording of the hearing on 29 May 2020. We listened to the audio recording and a portion of the audio recording was also played during the appeal hearing. 8. The audio recording reveals that at the commencement of the hearing on 29 May 2020, the Tribunal telephoned the following participants and joined them into the teleconference hearing: the appellant, the appellant's daughter, a representative of the NSW Trustee and Guardian and a representative of the aged care facility in which the appellant lives. 9. At no stage during the hearing on 29 May 2020 did the appellant inform the Tribunal that he had witnesses that he wished to call to give evidence. From the audio recording, there was nothing to indicate that telephone calls were made or messages left with the Tribunal Registry or the Tribunal Members directly that indicated that anyone outside of the hearing was seeking to take part in the hearing. 10. Nor was there anything filed by the appellant prior to the hearing on 29 May 2020 to indicate that he had witnesses that he wished to call during the hearing. 11. In short, there was nothing before us to support the appellant's contention that the Tribunal below "locked out' or prevented other potential participants from taking part in the hearing. 12. In any event, we note that the written material filed prior to the hearing included correspondence dated 2016 by one of the three individuals. This was material that was before the Tribunal below. The correspondence does not relate to the appellant's capacity or otherwise for financial management but is directed to one of his inventions and speaks positively of that invention. 13. The Tribunal therefore had available to it the evidence of at least one of the individuals concerned. It cannot be concluded that because the Tribunal in its Reasons for Decision did not make specific reference to this affidavit evidence it had not read the affidavit and taken it into consideration when arriving at its decision. 14. We conclude that the appellant was not denied "a reasonable opportunity to present his case" in so far as these three individuals is concerned and the Tribunal was not in breach of the obligation to afford natural justice to the appellant in the manner in which it dealt with this aspect of the hearing. There was no practical injustice caused to the appellant and his assertion of a denial of procedural fairness fails. Allegation of bias 1. The appellant describes the manner in which the Tribunal dealt with him, particularly the presiding legal member, as "hostile", "bullying" and "flippant". The applicant asserted that this resulted in the hearing being unfair to him and that he was in a disadvantaged position as a result. 2. The appellant also asserted that the short period of time it took for the Tribunal to reach its decision after concluding the hearing of evidence and submissions was a further indication that the Tribunal was biased against him. It indicated that the Tribunal held a pre-determined view of his application and he was denied a fair hearing. Discussion 1. An overview of the principles relating to the obligation on the Tribunal to afford procedural fairness to a party under s 38(2) of the CAT Act and the obligation to determine proceedings without bias, or the appearance of bias, was recently provided in Wootten v Godfrey [2019] NSWCATAP 255: The principles Actual bias 24. The Tribunal was obliged to afford Mr Wootten procedural fairness: s 38(2) of the NCAT Act. As part of that obligation, the Tribunal was required to determine the Application and any issue that might arise in its determination, without bias or the appearance of bias. 25. The onus of demonstrating actual bias lies with Mr Wootten as the party asserting bias. It is a heavy onus to discharge (French J in Jia v Minister for Immigration and Multicultural Affairs (1998) 84 FCR 87 at 106, 107, cited with approval by Gleeson CJ and Gummow J in Minister for Immigration & Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 at 520. An allegation of actual bias must be distinctly made and clearly proved; cogent evidence is required to support a finding of actual bias; a finding of actual bias should not be made lightly: South Western Sydney Area Health Services v Edmonds [2007] NSWCA 16 at [97]; Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98 Gleeson JA at [68]. Apprehended bias 26. In the contexts of courts, the test for apprehended bias is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided: Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at [6] (Gleeson CJ, McHugh, Gummow and Hayne JJ); Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 at [11] (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ). 27. In Isbester v Knox City Council [2015] HCA 20; (2015) 255 CLR 135, in the context of a decision by a local council committee, Kiefel, Bell, Keane and Nettle JJ at [20], stated the test to be "whether a fair-minded lay observer might reasonably apprehend a lack of impartiality with respect to the decision to be made". Their Honours stated that this was largely a factual question "albeit one which it is necessary to consider in the legal, statutory and factual contexts in which the decision is made". Their Honours commented at [22] that the application of the principle in Ebner to decision-makers other than judges "must necessarily recognise and accommodate differences between court proceedings and other kinds of decision-making". 28. In contrast to actual bias, the test of apprehended bias is objective. It involves possibilities (real and not remote) not probabilities. The question is not whether the decision-maker would not actually bring an impartial mind to the matter. The question is whether the fair-minded lay observer might reasonably apprehend that to be the case. While the observer assessing possible bias is not a lawyer and is not assumed to have a detailed knowledge of the law, nonetheless they are taken to be aware of the nature of the decision, the context in which it was made and to have knowledge of the circumstances leading to the decision: Isbester at [23]. 1. As an unrepresented litigant, we invited the appellant to direct us to those parts of the audio recording of the hearing on 29 May 2020 that he believed supported his assertion that the manner of the Tribunal Members on 29 May 2020 indicated actual or apprehended bias. The appellant indicated that the last 30 minutes of the audio recording would best demonstrate this and this portion of the audio recording was played aloud. 2. In response to the playing of the audio recording, the appellant submitted that it supported his position that: "trivia" was asked of him by the Tribunal members including things that happened six years prior and that were not relevant to his application for revocation of the financial management order; the questioning of him was not fair; there was no proof before the Tribunal that he has dementia; and as a result he felt "violated". 3. The appellant's daughter told us that during the hearing on 29 May 2020 her telephone line dropped out and she had not taken part in the last half hour or so of the hearing. Now that she had listened to the audio recording of this part of the hearing, she said that she could understand why her father felt that he was not being listened to as the presiding Tribunal Member, in her view, was "short" with him at times. She submitted that her father is able to look after his own financial affairs. 4. Having listened to the entirety of the audio recording, and giving particular attention to the portion of the audio recording on which the appellant relies, we concluded that nothing in the audio recording supports a conclusion that the members did not bring an impartial mind to the determination of the application. Nor was there anything contained within the Reasons for Decision to do so. We were not persuaded that the applicant has discharged the heavy onus of establishing actual bias against the Tribunal members. 5. In relation to an assertion of apprehended bias, the test is an objective one. It requires consideration of whether a fair-minded lay observer might reasonably apprehend a lack of impartiality with respect to the decision to be made. 6. Again, having listened to the entirety of the audio recording, and giving particular attention to the portion of the audio recording on which the appellant relies, this contention is not made out. 7. In conducting the review of the appellant's financial management order, the Tribunal was required to have regard, not only to the obligation to ensure that the appellant had a reasonable opportunity to be heard (CAT Act, s 38(5)(c)), but also to the requirement to seek to give effect to the "guiding principle" of the NCAT Act — to facilitate the just, quick, and cheap resolution of the real issues in the proceedings (CAT Act, s 36(1)). 8. The audio recording reveals that the Tribunal members sought to focus on the real issues in the proceedings. In order to do so, they had to interrupt the appellant on a number of occasions and bring his attention back to the matters that were before them for determination. The Tribunal had to consider whether the appellant was capable of managing his affairs (Guardianship Act, s 25P (2)(a)) or whether it was in his best interests to revoke the financial management order (Guardianship Act, s 25P(2)(b)). These were the grounds upon which, if satisfied either were made out, the Tribunal in its discretion could have decided to revoke the financial management order. 9. Although the appellant says he was "cut off" and was not given a chance to say everything that he wanted to say, it is apparent when listening to the audio recording of the hearing as a whole that he was given a reasonable opportunity to be heard. 10. The total length of the hearing on 29 May 2020 was approximately one hour and forty minutes. The length of time the Tribunal took between concluding the hearing of evidence and submissions and announcing its decision is difficult to discern from the audio recording, however, as the recording was turned off whilst the Tribunal members deliberated. Despite the appellant's submission to the contrary, there was nothing evident from the audio recording that supported a conclusion that a fair-minded lay observer might reasonably apprehend that the Tribunal was not impartial. 11. Despite the appellant's feelings about how he was treated during the hearing, having had regard to the audio recording and the Reasons for Decision, we have concluded that there is no basis for a finding of apprehended bias. 12. There was no practical injustice caused to the appellant and his assertion of a denial of procedural fairness fails. Disputed diagnosis of dementia 1. On the basis of his written and oral submissions, an issue of overwhelming significance for the appellant appears to be the suggestion that he has dementia. The appellant denies he has this condition; has provided medical evidence to support this view; and asserts that the label of dementia has been deliberately used by others, such as the management of the residential aged care facility in which he lives, to disadvantage him. The appellant asserts that at the review hearing that is the subject of this appeal, the Tribunal relied on evidence provided by the residential aged care facility that the appellant has been diagnosed with dementia to form the view that he was, and remains, incapable of managing his affairs. As we understood this appeal ground, the appellant asserts that the Tribunal should not have given any weight to this evidence as there was other evidence disputing this diagnosis. The appellant requested that all references to dementia should be removed from his records. 2. The appellant's daughter supported the appellant's submissions about this issue. She described her father as "eccentric" and able to manage his own financial affairs. Discussion 1. In its Reasons for Decision, the Tribunal expressly acknowledged the appellant's position that he had been incorrectly diagnosed with dementia: [14] In his application received on 20 May 2020 [the appellant] submits that the "entire case rests on a wilful wrong diagnosis of dementia …" and that the effect of the order is to stifle his creativity and imagination. He submits that the only way for him to raise $50,000 (to pay his debt to the aged care facility), and to raise "infinitely more" is to allow him to be totally independent. He comments that he does not want family involved in his financial dealings because they are "generally inept" and if he needed help he would "hire the very best" that he could afford. He wants to be "cut loose" from the order and to travel the world to visit his family members and to pay off his debts from the large potential profits made possible by his biomedical engineering talents. … [23] In his written and oral submissions [the appellant] stressed that that he did not have dementia. He accused [the manager of the aged care facility] of dishonestly claiming that he had dementia for a number of reasons, including that increased government funds were paid to aged care facilities with a higher proportion of residents with dementia. 1. The Tribunal summarised at length the medical evidence provided by the appellant that supported his position that he does not have dementia (at [17]-[22]). It expressed a view as to the limited weight it gave to those reports as comprehensive assessments of the appellant's ability to manage his affairs (at [48]) but then went on to note the following as to the relevance of the medical evidence to the issue of whether the appellant had regained the capacity to manage his affairs: [49] Medical evidence can assist in determining a person's ability to manage his affairs. However, in our view, it is not essential for the Tribunal to decide whether to accept a diagnosis of dementia or an alternative diagnosis of mild cognitive impairment in respect of [the appellant]. As is indicated by the courts in the matters reviewed above, the issue to be determined by the Tribunal is the functionality of [the appellant's] management capacity, including whether he is able to manage his own affairs reasonably competently in a reasonable, rational and orderly way, with due regard to his present and prospective wants and needs. If he lacks capacity, in the words of Barrett J in P v R [2003] NSWSC 819 the "reason for it does not matter" (above). 1. The Tribunal proceeded to outline its consideration of the other evidence before the Tribunal that was relevant to the issue of his capacity to manage his affairs. This evidence concerned he appellant's inventions, a judgement against him in the USA, information provided by the NSW Trustee and Guardian, details of the sale of the appellant's home, the debt owed to the nursing home and a report provided by a social worker at the aged care facility (at [24]-[42]). 2. After discussing this evidence in detail (at [51]-[59]), the Tribunal concluded that: [60] In paragraphs 51 to 59 above we have outlined with regard to specific financial matters, our conclusions regarding [the appellant's] ability to manage his affairs. We are also of the view that in a more general sense, [the appellant's] presentation during the hearing demonstrated perseveration and a rigidity that resulted in him not dealing in a reasonable, rational or orderly with the matters raised during the hearing. In our view the evidence before us and our conclusions as outlined indicate that [the appellant] is not able to deal reasonably, rationally and competently with his financial affairs and therefor he is not able to manage his affairs. The order cannot be revoked on the basis of [the appellant's] ability to manage his affairs. 1. A careful reading of the Reasons for Decision, as indicated by the paragraphs extracted above, reveals that the Tribunal did not, as the appellant asserts, rely on an earlier diagnosis of dementia that the appellant clearly disputes. The Tribunal stated that it did not need to make a finding as to whether or not the appellant had dementia or any other condition and did not do so (at [49]). Rather it went on to consider in detail other evidence concerning the "functionality of [his] management capacity". It was this evidence that led the Tribunal to find that he is not capable of managing his affairs. 2. We conclude that there was no question or principle or policy raised, or manifest error in the decision or decision-making process under review, which merits a grant of leave (C v W [2015] NSWSC 1774, [44]; Collins v Urban [2014] NSWCATAP 17, [82]-[84]). 3. Leave to appeal on this ground is refused. Orders 1. Leave to appeal is refused. 2. The appeal is dismissed. ********** 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: 23 June 2021