Civil and Administrative Tribunal New South Wales Medium Neutral Citation: ZVK v ZVL [2021] NSWCATAP 317 Hearing dates: 6 September 2021, and written submissions dated 19 September 2021 Date of orders: 14 October 2021 Decision date: 14 October 2021 Jurisdiction: Appeal Panel Before: The Hon J Boland AM, Deputy President A Suthers, Principal Member L Porter, General Member Decision: (1) The application for leave to appeal is dismissed. (2) The appeal is dismissed. Catchwords: APPEALS – from exercise of discretion – question of law – application for leave to appeal against decision of the Guardianship Division Legislation Cited: Children and Young Persons (Care and Protection) Act 1998 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 Civil Procedure Act 2005 (NSW) Convention on the Rights of Persons with Disabilities, United Nations, signed 30 March 2007 (entered into force 3 May 2008) Crimes Act 1900 (NSW) Guardianship Act 1987(NSW) NSW Trustee and Guardian Act 2009 (NSW) Powers of Attorney Act 2003 (NSW) Cases Cited: Collins v Urban [2014] NSWCATAP 17 Gautam v Health Care Complaints Commission [2021] NSWCA 85 John Prendergast & Vanessa Prendergast v Western Kioa v West (1985) 159 CLR 550; [1985] HCA 81 Murray Irrigation Ltd [2014] NSWCATAP 69 Re Kerry (No 2) [2012] NSWCA 127 Re Tracey [2011] NSWCA SAB v SEM & Ors [2013] NSWSC 253 Texts Cited: Emeritus Profession R McCallum AO, Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disabilities, "The United Nations Convention on the Rights of Persons with Disabilities: An Assessment of Australia's Level of Compliance" (October 2020) Category: Principal judgment Parties: ZVK (Appellant) ZVL (First Respondent) ZVM (Second Respondent) NSW Trustee and Guardian (Third Respondent) Representation: Not applicable File Number(s): 2021/00187725 Publication restriction: Under s 65 of the Civil and Administrative Tribunal Act 2013 (NSW), a person must not, without the consent of the Tribunal, publish or broadcast the name of any person to whom these proceedings relate, who appears as a witness in these proceedings or who is mentioned or otherwise involved in these proceedings. The name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person. Decision under appeal Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Guardianship Division Citation: Not applicable Date of Decision: 21 April 2021 Before: J Connelly, Senior Member File Number(s): 2019/00338756 REASONS FOR DECISION Introduction 1. On 1 July 2021 ZVK filed an appeal against a decision of the Guardianship Division made on 21 April 2021. The Tribunal provided reasons for the decision which were received by ZVK on 3 June 2021. The Tribunal ordered that ZVK's appointment as manager of his mother's financial affairs should be revoked and in lieu that the NSW Trustee and Guardian be appointed as the Financial Manager. 2. ZVK asserts in his Notice of Appeal document four grounds of appeal asserting errors of law. He also relies on further grounds in attachments to the Notice of Appeal. ZVK also seeks that the Tribunal grant his application for leave to appeal. We set out the basis of the application for the leave sought later in these reasons. 3. By way of orders, ZVK seeks: Revoke all Financial Management Orders and return management of the Estate of [ZVL] and her Appointed Eternal [sic] Power of Attorney [ZVK]. 1. ZVK's appeal is opposed by his sister, ZVM. The NSW Trustee and Guardian neither consents to, nor opposes, the appeal. The NSW Trustee and Guardian did not appear at the hearing of the appeal, but did provide an updated financial report. 2. ZVK's mother does not express a direct opinion about the outcome of the appeal. But she is supportive of her son ZVK and is happy with the care, support and attention she receives from him. 3. On 31 August 2021 ZVK's solicitors advised the Tribunal they acted for the ZVK. However, notwithstanding that we invited the solicitors to provide submissions on the question of leave being granted to them to represent ZVK they did not do so. At the hearing of the appeal ZVK told us that the solicitors did not act for him in respect of his appeal and that he would conduct the appeal himself. The parties to the appeal 1. It is the usual practice of the Appeal Panel that, to protect the privacy of the parties to the appeal, and because at times sensitive information is discussed in the Appeal Panel's reasons, the Tribunal adopts the use of pseudonyms to describe the parties. This is so notwithstanding s 65(3) of the Civil and Administrative Tribunal Act (NSW) (the NCAT Act) which permits the publication of a report of the proceedings. 2. To assist understanding of these reasons, and without wishing to cause any disrespect, we will refer to the parties as follows: 1. ZVK as "the son"; 2. ZVL as "the mother"; 3. ZVM as "the daughter"; and 4. NSW Trustee and Guardian as "the NSW Trustee". The conduct of the appeal The directions made for the appeal 1. On 21 July 2021 Principal Member Suthers made directions for the filing of documents and the listing of the appeal for hearing. Order 1 of the orders required the son to file all the evidence relied at the hearing on 21 April 2021 together with any other evidence on which he proposed to seek leave to rely, together with his written submissions. All the documents mentioned, together with a sound recording of the proceedings, and a typed written copy of parts of the transcript to be relied on, were to be filed with the Tribunal and given to the respondents to the appeal by 11 August 2021. 2. Similar provisions were made in respect of each of the second and third respondents (the daughter and the NSW Trustee). They were required to file their documentation by 25 August 2021. 3. The son was required to lodge with the Tribunal and give to the respondents any submissions in reply by 1 September 2021. 4. On 12 August 2021 Deputy President Westgarth determined an application by the daughter to adjourn the appeal. The application was refused. 5. This appeal was heard, as are all appeals currently before the Appeal Panel, by telephone by reason of the COVID 19 pandemic. While the son provided us with an informal transcript of the hearing in the Tribunal below prepared by him, he did not provide a copy of the sound recording. Material lodged by the son's solicitors 1. On 31 August 2021 W. A. Baxter & Co, Solicitors (the solicitors) wrote a four page letter addressed to the Tribunal setting out some history, and advancing a number of proposals on behalf of the son. On 1 September 2021 a further letter was received from the solicitors attaching a schedule of expenditure. 2. The solicitors' letters were not served on the mother or the daughter. To ensure procedural fairness to the daughter we requested the Registrar to forward copies of the letters to her, and at the conclusion of the appeal made orders affording her the opportunity, if she wished to do so, to respond to anything in the letters. We observe the letters have not been admitted by us as fresh evidence in support of a new hearing. The content of the letters does not directly address the grounds of appeal. We have treated the letters as submissions on behalf of the son in respect of his appeal but note much of the content of the letters lack direct relevance to the appeal. 3. During the hearing the son agreed that he had or would give his mother copies of the letters. We also requested the Registrar to forward copies of the letters to the NSW Trustee. The solicitors' letter of 31 August 2021 1. It is unnecessary we repeat the summary of the background of the proceedings, or the recording of disputation between the son and daughter, set out in the letter as these matters are discussed by us elsewhere in these reasons. 2. The solicitors set out their instructions of an asserted conversation between the son and the daughter which occurred after the June 2020 proceedings. This asserted conversation is not relevant to this appeal. 3. The letter also states that since the NSW Trustee was appointed Financial Manager that they are instructed "that it does not appear that the NSW Trustee & Guardian is not [sic] attending to proper payment of these various accounts". 4. The solicitors note the fees charged by the NSW Trustee will have the effect of diminishing the mother's financial resources and conclude this topic as follows: Furthermore, all future outgoings (rates insurance and the like) on behalf of [the mother], one would assume, would be paid from her own funds under management of the NSW Trustee & Guardian; thus diminishing [the mother's] financial resources. 1. The writer of the letter submits, with respect, that the mother's wishes were not adequately heard at the hearing. 2. The writer then states: It is clear from our client's instructions and from the documentation that we have been presented with, that [the daughter], whilst urging the sale of the family farm, could have an ulterior motive, that is, she obtains a financial advantage over her brother upon the death of her mother 1. The letter goes on to make a number of proposals about the outcome of the matter including: 1. making an order reviving the Enduring Power of Attorney; 2. that the son and daughter jointly act as attorneys; 3. that the mother's property be transferred to the son without payment by the son and the son and his mother enter into a "formal Care and Maintenance Agreement" where the son pays his mother $300 per week or other agreed sum; and 4. alternatively, that the mother's property be sold to the son at a sale price of $300,000 and the mother's RAD [Refundable Accommodation Deposit] paid. However, the letter notes "the sentimental value of the family farm and that it is quite clearly [the mother's] wish to not to sell the farm but to keep it within the family". 1. The letters goes on to submit that the sale price of the mother's property may be insufficient to cover the RAD and that any shortfall in terms of the Daily Accommodation deposit would need to be met from the mother's investments. 2. The solicitor's letter of 1 September 2021 encloses a spreadsheet setting out details of payments from 30 June 2016 to 28 July 2021 asserted to have been paid by the son on behalf of "[initials] & [initials]" (presumably the mother and her late husband). The daughter's reply 1. The daughter responded to the opportunity to provide any further submissions on 20 September 2021. She disputed a number of matters in the solicitors' letter. She focused on the schedule of expenses and provided comments on those expenses. We refer to the schedule later in these reasons. 2. On 21 September 2021 the son sent further correspondence to the Tribunal by email annexing a further 30 pages of submissions. These submissions are not responsive to the daughter's submissions, nor did we make any provision for the filing of further material or submissions by the son. The submissions canvas matters already covered in the son's submissions filed in support of the appeal. We do not find it necessary or appropriate to address the matters in the document forwarded on 21 September 2021 and we disregard it. Consideration of the solicitor's letters 1. First, we note the solicitors were afforded the opportunity to seek to be granted leave to represent the son at the hearing but did not take up that opportunity. Secondly, they corresponded directly with the Tribunal and did not take any steps to bring their correspondence to the attention of the NSW Trustee, the Financial Manager, or the daughter as second respondent to the appeal. That is an unfortunate circumstance particularly where, on instructions, criticisms are raised about the NSW Trustee's asserted failure to pay accounts and there are criticisms of the daughter and her conduct. Thirdly, as we explain later in these reasons, we are not satisfied that there are grounds to grant leave to appeal and admit further evidence. Thus, at their highest, as we have earlier noted, the letters may be regarded as submissions on behalf of the son, to the extent they are relevant in support of his appeal on a question of law. 2. We consider that the proposals for the ongoing management of the mother's financial affairs, and in particular the son's proposal for the purchase of the farm, are matters which the son may wish to put to the Financial Manager for consideration. As we later explain, as we have not found merit in any of the grounds of appeal agitated by the son the submissions relating to the revival of the Enduring Power of Attorney are irrelevant. Irrelevant material 1. Notwithstanding the grounds raised in the son's Notice of Appeal as errors of law, he filed voluminous material which we discern he sought to rely on to appeal against the orders made by an earlier Tribunal appointing him as his mother's Financial Manager, or to be admitted as fresh or further evidence in the event we granted leave to appeal and decided to conduct the appeal as a new hearing. 2. We also note that the son refers to a number of pieces of legislation, for example, the Civil Procedure Act 2005 (NSW) and the Crimes Act 1900 (NSW), that are not within this Tribunal's jurisdiction. Accordingly we do not in these reasons address matters referring to such legislation, although we do take into account the objectives and principles of the NCAT Act and the Guardianship Act 1987 (NSW). We accept that the son, as a self-represented litigant, has endeavoured to put material he considers relevant to the appeal. We acknowledge he is aggrieved by the decision now subject to appeal, and to the earlier decision appointing him as his mother's Financial Manager, albeit he did not appeal that decision. 3. It is clear from the material filed, and as noted in the Tribunal's reasons below, the relationship between the son and daughter has completely broken down and may be described as toxic. It is not necessary, nor is it appropriate, that we consider or repeat a number of the unfortunate statements the son and daughter make about each other. Much of their focus is on the distribution of the mother's estate after her death. Appeal hearing by telephone and the mother's views 1. Unfortunately, due to the COVID 19 pandemic, the only practical way in which this appeal could be conducted was by telephone. We were conscious that the mother has a hearing impairment and this mode of hearing was not ideal. 2. Notwithstanding the mother's impairment, we made arrangements for her to participate in the appeal. The mother listened to the appeal on a speaker phone in the presence of the son, who on occasions during the appeal repeated questions the Presiding Member addressed to the mother. 3. The mother told us that she had a hearing impairment, that she has two hearing aids and was using her hearing aids during the hearing. We were satisfied she understood that the Tribunal was holding a hearing, but not the specifics of the appeal. The mother was unequivocal in her support for her son, saying he was an excellent son who provided regular care for her. She also acknowledged that her children did not get on with each other. The mother's views as expressed to us are consistent with the views she articulated in the Tribunal below. Jurisdiction and appellate principles 1. We now set out the relevant legislation which gives the Appeal Panel jurisdiction to hear and determine this internal appeal. Although the provisions are lengthy, rather than summarising the effect of the legislation, we have set them out in full where relevant because some of the material relied on by the son appeared to us to be based on a misunderstanding of the law and the Tribunal's powers. 2. Schedule 6 to the NCAT Act deals with matters specific to the Guardianship Division of the Tribunal, including reciting the New South Wales legislation in respect of which the division has jurisdiction (Children and Young Persons (Care and Protection) Act 1998, Guardianship Act 1987, NSW Trustee and Guardian Act 2009 and the Powers of Attorney Act 2003). 3. The schedule to the NCAT also sets out the provisions relative to appeals from a decision of the Guardianship Division. Clause 12 of the Schedule provides as follows: Part 6 Appeals 12 Division decisions may be appealed to either Appeal Panel or Supreme Court (1) A party to proceedings in which a Division decision that is an internally appealable decision is made (an appealable Division decision) may appeal against the decision by either— (a) an internal appeal to an Appeal Panel in accordance with Division 2 of Part 6 of this Act, or (b) an appeal to the Supreme Court in accordance with this Part. (2) However, a decision of a registrar made under clause 8(1) may only be appealed as an internal appeal to an Appeal Panel in accordance with Division 2 of Part 6 of this Act. (3) An internal appeal precludes an appeal to the Supreme Court against the same decision unless the internal appeal is withdrawn with the approval of an Appeal Panel for the purpose of enabling an appeal to the Supreme Court against the decision. (4) An appeal to the Supreme Court precludes an internal appeal against the same decision unless the appeal to the Supreme Court is withdrawn with the approval of the Court for the purpose of enabling an internal appeal against the decision. 1. Part 6 of Schedule 6 also deals with the time period for lodging an appeal against a final decision of the Guardianship Division (cl 14 (2)) to within the period ending 28 days after the day on which the written reasons for the decision is given to the person seeking to appeal (see also Rule 25 of the Civil and Administrative Tribunal Rules 2014). We note in this case the decision was received by the son on 3 June 2021 and he filed his appeal on 1 July 2021. Thus, notwithstanding he seeks an extension of time to appeal, we are satisfied that the appeal was filed in time. 2. The son has elected to appeal to the internal Appeal Panel of the Tribunal not to the Supreme Court. Accordingly the appeal is governed by s 80 and s 81 of the NCAT Act. Those sections provide as follows: 80 Making of internal appeals (1) An appeal against an internally appealable decision may be made to an Appeal Panel by a party to the proceedings in which the decision is made. Note— Internal appeals are required to be heard by the Tribunal constituted as an Appeal Panel. See section 27(1). (2) Any internal appeal may be made— (a) in the case of an interlocutory decision of the Tribunal at first instance—with the leave of the Appeal Panel, and (b) in the case of any other kind of decision (including an ancillary decision) of the Tribunal at first instance—as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds. (3) The Appeal Panel may— (a) decide to deal with the internal appeal by way of a new hearing if it considers that the grounds for the appeal warrant a new hearing, and (b) permit such fresh evidence, or evidence in addition to or in substitution for the evidence received by the Tribunal at first instance, to be given in the new hearing as it considers appropriate in the circumstances. 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 confirming, affirming or varying, or making a decision in substitution for, the decision under appeal and may exercise such functions on grounds other than those relied upon at first instance. 1. What constitutes a question of law for the purposes of s 80 of the NCAT Act has been explained in a number of decisions of the Appeal Panel. Matters which may constitute a "question of law" are summarised with reference to authority in John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 as follows: Whether the Tribunal identified the wrong issue or asked the wrong question: Craig v State of South Australia [1995] HCA 58; (1995) 184 CLR 163 at 179; Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [82]. Whether a wrong principle of law had been applied: Chapman v Taylor [2004] NSWCA 456 at [33], per Hodgson JA (Beazley and Tobias JJA agreeing). Whether there was a failure to afford procedural fairness: Italiano v Carbone [2005] NSWCA 177; Clements v Independent Indigenous Advisory Committee [2003] FCAFC 143 at [8]. Section 38 of the Act prescribes the procedure of the Tribunal generally. Relevantly, s 38(2) expressly requires the Tribunal's procedures to accord with natural justice. Sub-sections 5 and 6 also embody aspects of procedural fairness. These rules were previously reflected in s 28 of the Consumer, Trader and Tenancy Tribunal Act (NSW). Procedural fairness concerns the fairness of the proceedings and not the decision: Aronson, Dyer and Groves, Judicial Review of Administrative Action, 4th Ed; (2009) Lawbook Co at [7.20]. Whether the Tribunal failed to take into account relevant (i.e., mandatory) considerations: Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40; (1986) 162 CLR 24. This was recently the subject of consideration by the Appeal Panel in Director General, Department of Finance & Services v Porter. It was said at [26] to [29] as follows: 26 Failure to take into account a relevant consideration which the decision maker was bound to take into account is an error of law (Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1985-6) 162 CLR 24 at 39 per Mason J). 1. Generally, the Tribunal hearing an appeal will not grant leave to appeal unless the appeal raises matters of principle of the type referred to in Collins v Urban [2014] NSWCATAP 17 at [84]. There the Appeal Panel explained: (2) Ordinarily it is appropriate to grant leave to appeal only 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, 1. Collins v Urban is a decision of the Appeal Panel from decision from the Consumer and Commercial Division of the Tribunal. However, in the course of their reasons, the Appeal Panel referred to principles relevant to the granting of leave in the former Guardianship Tribunal of New South Wales in SAB v SEM & Ors [2013] NSWSC 253. There White J (as his Honour then was) explained: Without intending to be exhaustive, the considerations governing a determination as to whether leave should be given will include whether or not a question raised involves a matter of administration or policy which might have general application, whether or not the Tribunal's decision has been arrived at after the Tribunal members have directed themselves properly and fairly on the facts and not gone wrong in law, whether there is 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, and whether the factual error was unreasonably arrived at and clearly mistaken. (See K v K at [14] and Slinko v Guardian Administration Tribunal at [9]-[16].) [footnotes omitted] Relevant background 1. There was little material relied on in the Tribunal below. Although the earlier Tribunal's reasons of 2 June 2020 were not included in the son's appeal papers, it is self-evident that the Senior Member conducting the review had access to those reasons. We were provided with a copy of the Tribunal's reasons of 4 March 2020. Relevant facts are set out in that decision. 2. In 2016 the mother executed an Enduring Power of Attorney and an Appointment of Enduring Guardian. In these instruments the mother appointed her husband as her Attorney and Guardian. She appointed the son as substitute attorney and the daughter as substitute attorney in the event the son did not take up the role of Attorney. The mother's husband died in 2019. 3. Also in 2016 the mother, her husband and the son entered into a written agreement about their respective homes. The mother and her husband agreed that the son could live on their rural farming property and use the property for farming and grazing and the son agreed his parents could live in his property located in the nearby country town during their respective lifetimes "or the last survivor decides they no longer wish or cannot reside in the property". The agreement was entered into so that the mother and her husband could live closer to services, including medical services. 4. The mother's physical health declined and in November 2018 she moved into the residential aged care facility where she presently lives. After the father's death, the son continued to and still lives in the rural property of which the mother is now the sole registered proprietor. The agreement makes no provision as to what is to occur on the vacation by a party of either property. 5. The mother's residential accommodation fees increased after the distribution of her late husband's estate. 6. In 2020 the daughter, who lives with her husband and children in a distant part of the state, brought an application to the Tribunal to review the Enduring Power of Attorney which, by the time of her application, was being exercised by the son as Attorney. On 2 June 2020 the Tribunal made a financial management order appointing the son as his mother's Financial Manager. 7. On November 2020 the daughter lodged an application to Review or Revoke a Financial Management Order. That application was heard on 21 April 2021. On that day the Tribunal reviewed the order, revoked the appointment of the son as his mother's Financial Manager and committed the management of her estate to the NSW Trustee. The decision the subject of the appeal 1. We set out in summary form the key matters addressed by the Tribunal in the decision in respect of the orders made on 21 April 2021. 2. Under the heading "background" the Tribunal noted that the mother "is an 83 year old woman with a cognitive impairment who lives at [name of residential aged care facility]". 3. After setting out, in summary form, the relevant provisions of the Guardianship Act dealing with the review of a financial management order (ss 25G, 25N, 25P) the Tribunal noted at [14] that the only issue to be decided was whether the son "was a suitable person to continue to manage [the mother's] financial affairs". 4. The Tribunal noted: There is no new evidence in relation to capacity or the need for a financial management order. 1. The Tribunal at [15] identified the issue between the son and daughter as being "the strategy adopted by [the son] of not renting [the mother's] house and not selling it". The Tribunal goes on to explain: This has meant that [the mother] has not paid the RAD and because of this, and the fact that her assets are not producing an income, she is being charged an extra $400 per week in accommodation fees. It was agreed by both [the daughter] and [the son] that, in fact, this was the case and her extra fees were approximately $20,000 per year. 1. We pause to note that the reference to "the RAD" is a reference to a refundable accommodation deposit payable to the mother's aged care facility as one option required by the Federal government for persons entering into such facilities. If the RAD is not paid, then a charge known as the daily accommodation charge is payable. If the RAD is not paid in full a reduced daily accommodation charge (rent) is payable. (see https://www.myagedcare.gov.au) 2. The reasons go on to summarise the son's evidence, namely, that he was living in the mother's house and paying no rent. However, the reasons also note he had paid some expenses (council rates and insurance) and carried out some maintenance work. He was noted to have reported that most expenses paid had been prior to the making of the financial management order. 3. At [17] the Tribunal recorded the son's estimate of value of the mother's property ($300,000 in 2016) but noted his view that it may not be worth that much now. The son's comments about the considerable amount of effort needed and maintenance required to the property were recorded as was his statement that his mother did not wish him to sell the house. 4. At [18] the reasons note the son's estimate of the rental value of the mother's house ($175 per week) and went to record "He conceded that his management strategy meant that his mother's savings were being depleted by $20,000 per year". 5. At [20] the reasons summarise the position of the daughter as follows: [The daughter] said that her mother was disadvantaged by her brother's decision to live in her house without paying any rent. She said the economic disadvantage could be cured if [the son] paid rent or if he rented the house out. Additionally, the property should be sold so that their mother's RAD could be paid and that if the property was sold and the RAD paid, her ongoing daily and weekly accommodation fees would be reduced. If she earned an income from the property by way of rent payment, that would at least cover the increase in her fees. 1. Thereafter, the reasons summarise questions posed by the Senior Member to the NSW Trustee representative during the hearing. The reasons record that the NSW Trustee representative explained that, if the NSW Trustee was the Financial Manager, they would consider proposals "from both sides" and if a significant management decision such as selling property was to be made "they would consult with relevant family members". 2. The reasons then note that a solicitor appeared amicus for the mother at the hearing. The reasons record that the solicitor said the current management plan benefits the son personally and this created a conflict of interest. The reasons then note: In response to my suggestion that given the conflict of interest, it may be in [the mother's] best interests for an independent person, the NSW Trustee and Guardian, to be appointed as [the mother's] Financial Manager, [the solicitor] supported that as being in [the mother's] best interests. 1. The Tribunal's reasons for its decision to appoint the NSW Trustee as Financial Manager are found at [25]-[26]. As these paragraphs are central to the appeal we set them out in full: [The son] has made a decision in relation to the management of his mother's financial affairs which benefits him personally. His benefit is to his mother's detriment. This is because he is living in a property rent free, paying minimum amounts for insurance and rates whilst she receives no rental income and continues to pay higher accommodation fees at the facility. He is unable to engage with his sister… who has proposed an alternative plan and it is apparent from the comments made today that he and his sister have a fractured relationship and that he has not been open to considering her requests for information and an alternative plan. I express no view about how [the mother's] financial affairs should be managed but I am concerned about a situation in which the person managing her financial affairs benefits from one management strategy which impacts adversely on her. This represents a clear conflict of interest. The alternative proposal would not appear to have the same adverse impact and it is my view that both proposals should be properly considered by an independent person. I note that [the son] said that [the mother] has said that she does not want the house sold and although her views have to be taken into account, sensible financial decisions have to be made which are in her best interests. 1. The reasons note the mandatory requirement for anyone exercising a function under the Guardianship Act to take steps to protect and preserve important family relationships. The reasons record that the son did not appear to have consulted the daughter. 2. At [28] the Senior Member confirmed she was satisfied it was in the mother's best interests that the son's appointment as her Financial Manager be revoked, that the financial management order should be confirmed and that the NSW Trustee and Guardian should be appointed as Financial Manager. 3. The reasons conclude with the Senior Member noting her encouragement to the parties to put their respective plans for management, and what they assert is in the mother's best interests, to the NSW Trustee. The grounds of appeal NCAT made an error of law by failing to take into account the factors stipulated in Section 25G Grounds for Making Financial Management order, Guardianship Act 1987 1. Although this ground is set out by the son in his grounds of appeal he does not address this provision in his submissions in support of his appeal. In his oral submissions to us he explained that he asserts an error of law because first the Tribunal failed to consider whether his mother had the capacity to manage her own affairs and secondly because it made an error in recording that she had a cognitive impairment. 2. Section 25G of the Guardianship Act provides as follows: The Tribunal may make a financial management order in respect of a person only if the Tribunal has considered the person's capability to manage his or her own affairs and is satisfied that— (a) the person is not capable of managing those affairs, and (b) there is a need for another person to manage those affairs on the person's behalf, and (c) it is in the person's best interests that the order be made. 1. We do not find an error of law by the Tribunal in not considering s 25G as a threshold issue. First, neither party raised before the Tribunal below any submission that a Financial Manager was not required because the mother was capable of managing her financial affairs and there was no need for another person to manage her affairs. The hearing proceeded on the basis that there was a need for a Financial Manager and that the mother lacked capacity to manage her financial affairs. 2. We discern that by this ground of appeal the son is seeking to attack the Tribunal's 2 June 2020 reasons in which he was appointed his mother's Financial Manager with the effect that his role as attorney under the Enduring Power of Attorney was suspended. But that decision is not the subject on appeal before us, nor was the need for a Financial Manager the subject of challenge in the 21 April 2021 proceedings. 3. The other basis it appears that the son relies on this provision of the Guardianship Act is the recording in [2] of the reasons that the mother has a cognitive impairment. The son explains in his submissions that the mother has physical ailments including limited mobility as a result of injury to her hips, thighs and knees and a slight hearing impairment. That submission is supported by the daughter's application. 4. We note the Tribunal recorded there was no new evidence before it about the mother's capacity. Thus, the Tribunal was entitled to draw the inference that the mother lacked the capacity to manage her financial affairs, the issue having been determined by the earlier Tribunal. It appears the reference to "cognitive impairment" was used to describe what the Tribunal referred to in the reasons of 4 March 2020 as "some forgetfulness". Further, the Tribunal did speak to the mother and was able to ascertain her views. 5. We further note that the solicitor who appeared either as a McKenzie Friend or as described by the Tribunal as amicus (amicus curie) did not raise any issue about the need for a Financial Manager or capacity. She accurately recorded that the mother wanted the son to live in her property, but agreed with the Senior Member that this created a conflict of interest and it was in the mother's best interests that an independent person be appointed as her Financial Manager. 6. We are not satisfied that the son has established any error of law by the Tribunal in the manner it determined the application. The issue of the mother's capacity to manage her own affairs was not a matter put in issue for determination on 21 April 2021 nor was there any question that a Financial Manager was no longer required. The mother's physical incapacities meant that she was unable in practical terms to manage her financial affairs including arranging for the maintenance and upkeep of her rural property. That conclusion did not mean that the mother's views were, or are, irrelevant. The s 4 principles in the Guardianship Act require a Financial Manager to ascertain the person's views, and to take those views into consideration. Further that principle cannot be read in isolation from the other principles including observing the principle that in making any decision the person's welfare and interests should be given paramount consideration. 7. The thrust of the son's submissions in respect of a failure to observe the s 4 principles in the Guardianship Act appears to be that the Tribunal did not adopt the position for which he advocated, based on his mother's expressed appreciation of his support, care and devotion. 8. We commence by noting that, before the Tribunal below and before us, the son's close and supportive relationship with his mother was established on her evidence and is (and was) not in doubt. We discern that the son asserts appealable error because his mother's wishes were not followed. The son's submission fails to appreciate that the s 4 principles require a person's view "to be taken into consideration". In many circumstances it will be appropriate for a Tribunal to act on the person's wishes because they coincide with that person's welfare and interests. 9. The person's views must be balanced taking into account other principles in s 4 including s 4 (1) "the subject person's welfare and interests being given paramount consideration". The mother's welfare and interests were not, in this case, found by the Tribunal below to be compatible with the mother's views. The Tribunal was satisfied the son had a conflict of interest, and that he had not demonstrated appropriate management of his mother's financial affairs. That finding was open to the Tribunal below on the evidence before it. NCAT made an error of law by failing to take into account the factors stipulated by the common law 1. The basis of this ground as argued in the son's submissions appears to be that the Tribunal failed to take into account domestic violence perpetrated by the daughter as well other "offences" under a number of State Acts including stalking, harassment, trespass, stealing, fraudulent representations, the institution of vexatious proceedings and contempt. 2. We observe that there is no evidence before us, nor was there any evidence before the Tribunal below, that the daughter has been charged with or convicted of any offence. The only bases we can discern the son can rely on is his assertion that there was a delay in providing documents to him because the application made by the daughter was forwarded to the wrong address and that the daughter relied upon photographs taken within the house on the rural property, taken while the son lived there and without his consent for the daughter to enter the property. 3. In his oral submissions the son advanced the proposition that it was the Tribunal's role to refer the daughter's criminal and other offences to the relevant authorities. However, when the Presiding Member indicated to the son that any complaint about the sister's alleged wrong doing should be referred by him to the NSW Police, he advised he had done so but the Police had not taken any action. Further, we note that the son provides no specific details of the events, including dates of occurrence, which he maintained the Tribunal had a duty to refer to other unspecified authorities. We are not satisfied that the son has established any error at common law on the basis articulated in his documents and referred to in his oral submission, that is, as alleged breaches of various State Acts. 4. We also discerned that the son asserted a lack of procedural fairness because the initiating application was forwarded to him by the daughter to a wrong address. 5. The daughter asserts at par 3 of her submissions that, although her application lodged in November 2020 was sent to the wrong address, a copy was also send to the son by email. She notes that the son did not provide any material to the Tribunal for the hearing in April 2021 except an email asserting internet difficulties. 6. We are satisfied from the transcript of the hearing provided by the son that he did not make any application for an adjournment of the hearing to enable him to produce evidence of steps he had undertaken since the financial management order was made in June 2020 in the management of his mother's affairs. We are further satisfied from the list of documents produced by the Registry staff for the hearing that the only document the son provided for the purpose of the Application to Review the Financial Management order was an email dated 13 April 2021. 7. There is no doubt that procedural fairness requires a person to know the allegation/s made against him or her, and to have an opportunity to contradict the allegation/s before an impartial decision maker (see Kioa v West (1985) 159 CLR 550); [1985] HCA 81). 8. We discern no procedural unfairness to the son by reason of the application being sent to the wrong address. That action was regrettable. The daughter says the son was also served by email. We are satisfied that by 18 March 2021, if not earlier when the documents were served by email, the son was notified by the Tribunal of the hearing. He took no steps to seek an adjournment of the hearing. We note he was on notice that proceedings could be adjourned as this occurred in respect of the hearing in March 2020. 9. The son also asserts that he was denied procedural fairness because the daughter's application was filed in November 2020 before the NSW Trustee had provided an induction, approved a financial management plan, or provided necessary authorities to him. We note that the NSW Trustee's report before the Tribunal dated 14 April 2021 annexed a letter to the son dated 8 January 2021 advising material had been forwarded to him on 4 June 2020, emailed to him again on 3 July 2020 and sent via express post on 11 August 2020. The letter at Point 5 states "the private manager has not complied with our requirements". 10. While it may not have been ideal to conduct a hearing in November 2020 when the son had only been responsible for his mother's financial affairs as Financial Manager from June 2020, several matters are relevant. First, he had been exercising his role as attorney for his mother under the Enduring Power of Attorney prior to the June 2020 hearing. Thus, he should have been familiar with her assets and liabilities and particularly her income and expenses after his father's death in 2019. Secondly, he had the benefit of the reasons of the June 2020 Tribunal which highlighted the deficiencies in his management of his mother's affairs as her attorney which required rectification including intermingling of his expenses with his mother's expenses and the recording of evidence to the Tribunal that he would pay rent. Thirdly and significantly what the Tribunal was examining was the financial position at April 2021 not at November 2020. 11. The son's submissions also assert a lack of adequate reasons for the decision. Before us the son asserted the Senior Member had failed to examine financial records. We discern that the son's assertion of lack of discussion of the financial records in the decision meant the reasons provided were not adequate. 12. There is no doubt that the Tribunal is required to provide reasons for its decision. This requirement is discussed in many decisions of the NSW Court of Appeal. In Gautam v Health Care Complaints Commission [2021] NSWCA 85 at [16]-[17] Leeming JA explained, in the context of disciplinary proceedings conducted in the Tribunal: …The content of the judicial duty to give adequate reasons depends on the circumstances of the matter being considered: Thorne v Kennedy (2017) 263 CLR 85; [2017] HCA 49 at [61]. The position with tribunals is a fortiori, bearing in mind the range of matters determined by tribunals and the absence of any free-standing common law duty to give reasons: Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 at [43]. The fourth point is that pursuant to s 29(4)(b) of Schedule 5 of the Civil and Administrative Tribunal Act 2013 (NSW), both sides enjoy not merely a right of appeal confined to questions of law, but a right of appeal, subject to leave, on any other ground. It is well recognised that a necessary consequence of the existence and extent of a right of appeal is that it will affect the obligation to give reasons; the latter must at the least extend to sufficient reasons so as to permit the full enjoyment of the former: see Campbelltown City Council v Vegan (2006) 67 NSWLR 372; [2006] NSWCA 284 at [23]- [24] and [105] and New South Wales Land and Housing Corporation v Orr (2019) 100 NSWLR 578; [2019] NSWCA 231 at [29]. A dissatisfied litigant in NCAT enjoys substantially the same right of appeal as is enjoyed by a dissatisfied litigant in an action in the District Court involving an amount less than $100,000, namely an appeal on any grounds, subject to the grant of leave. 1. As noted above, the son appears to submit that the reasons were inadequate because the Senior Member did not discuss the mother's financial records. We note that it is the daughter's unchallenged position that she provided the statements, being the statements relied on in the June 2020 proceedings, and expected that the son would provide updated financial records to demonstrate what he had done during the period of financial management when he was the Financial Manager. 2. Our examination of these records corroborates the daughter's submission on this topic. The records pre-date the Tribunal's June 2020 decision. The son failed to produce any updating material to the Tribunal below. The reasons disclose that the Senior Member recorded at [15]-[19] of the reasons the evidence elicited during the hearing about the RAD and the mother's daily accommodation fees and reached a conclusion that the son in occupying the mother's property rent free had a conflict of interest, a position confirmed by the solicitor who appeared on an amicus basis before the Tribunal. 3. The son asserts that the Tribunal failed to take into account a relevant consideration, namely that the Tribunal had not given weight to, or sufficient weight to, his assertions that the daughter's action in bringing the application was to "annoy, harass, cause delay and detriment to the respondent [the son] and coercion" and this was an abuse of process and as a result "belie NCAT's claim 'there was no new evidence in relation to capacity or the need for a financial management order'": Annexure to Grounds of Appeal para 13 (d) (iv) (v) (iii). 4. We note that this ground overlaps with the first identified grounds of appeal. We repeat our discussion and conclusions about that ground. We accept that the son perceives the daughter's actions as harassment and designed to annoy him. It is apparent that, sadly, neither the son nor the daughter is able to put aside their differences and self-interest for their mother's benefit. 5. The reasons note the conflict between the son and daughter and the potential of the negative effect of the conflict on the mother. The Tribunal had to determine the application on the evidence before it. That evidence, including the NSW Trustee's report was tested by the Senior Member in her questioning of the parties, and informed by the concessions made by the solicitor who appeared as amicus for the mother. We discern no error by the Senior Member. 6. The son also relies on a failure by the Senior Member to address in her reasons the fact that the NSW Trustee had approved his plan to occupy the mother's property "subject to the occupant paying all council and water rates, strata levies, insurance, maintenance, repairs and consumables." That submission is consistent with the report of the NSW Trustee provided to the Tribunal. 7. The transcript provided to us discloses that the Senior Member questioned the son about what expenses he paid and ascertained that the reference to strata levies in the NSW Trustee's report was an error. It is noteworthy that the son failed to provide any evidence at all of any payments made during the period of his financial management. It is clear from the Senior Member's reasons what became the issue at the proceedings was not the fact of the son living on the mother's property but rather the shortfall between the mother's income and her expenses as disclosed in the NSW Trustee's report dated 21 April 2021 ($57,906.00 expenses – $10,034 rates payable by the son = $46,972 and expenses of $28,186.69, a shortfall of $18,785.31 per annum or $29,719.231 if the son did not pay the relevant rates). It was this annual depletion in the mother's assets which was the focus of the hearing particularly given that in the 2020 proceedings the son told the Tribunal that he would rent his property to offset the mother's shortfall in her expenses and income. 8. The son asserts an error of law by the Tribunal in referring to the shortfall between the mother's income and expenses being approximately $20,000 per annum. This asserted error is contrary to the undisputed evidence in the NSW Trustee's report before the Tribunal. Giving the son credit for payment of rates (about which there was no evidence) the report disclosed a shortfall of $18,785.31 per annum. We note the reasons refer to a sum of "approximately $20,000 per annum". 9. While the reasons were not extensive, they accurately summarise the relevant evidence provided to the Tribunal. The reasons disclose why the Senior Member determined that the son had a conflict of interest in his role as Financial Manager. The Senior Member took into account in reaching her decision that the son was unable to communicate with the daughter, and significantly that his financial management strategies adopted up to the date of the hearing were not in the mother's best interests. 10. We are satisfied that the son has not demonstrated any error of common law which would require us to uphold his appeal including a lack of procedural fairness or inadequacy of the Senior Member's reasons. NCAT made an error of law by not taking into account the factors stipulated by Article 12 of the UN Convention on the Rights of Persons with Disabilities 1. During his oral submissions the son advised us this ground required amendment and that in fact he relied on Article 17 of the UN Convention on the Rights of Persons with Disabilities (CRPD). 2. Article 17 of the Convention is as follows: Article 17: Protecting the integrity of the person Every person with disabilities has a right to respect for his or her physical and mental integrity on an equal basis with others. 1. The CRPD and its Optional Protocol opened for signature on 30 March 2007. Australia ratified the CRPD in July 2008 and the Optional Protocol in 2009. The CRPD entered into force for Australia on 16 August 2008, and the Optional Protocol in 2009. 2. Although Australia has ratified the CRPD it does not automatically become part of the country's domestic law unless incorporated into specific legislation. In a research paper prepared for the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disabilities, Emeritus Profession R McCallum AO discussed Article 17: As noted in the introductory segment, article 17 is one of the three articles on which Australia placed an interpretive declaration when it ratified the CRPD in 2008. The relevant portion of the interpretive declaration reads: Australia recognizes that every person with disability has a right to respect for his or her physical and mental integrity on an equal basis with others. Australia further declares its understanding that the Convention allows for compulsory assistance or treatment of persons, including measures taken for the treatment of mental disability, where such treatment is necessary, as a last resort and subject to safeguards. This interpretive declaration not only impacts on article 17, but it also operates to enable involuntary admissions to mental health institutions which would otherwise be contrary to article 14 and even article 15. 1. Notwithstanding that a United Nations Convention may not have been incorporated into domestic law, courts do have regard to Conventions ratified by Australia and are informed by their content, particularly if raised as a relevant consideration (see Re Tracey [2011] NSWCA 43; Re Kerry (No 2) [2012] NSWCA 127). 2. It appears that the son advances this ground on the basis that his mother's views that she was happy with her son being her Financial Manager should have determined the outcome of the proceedings. As we have already noted in our summary of the reasons of the Tribunal below, the Tribunal did take into account the mother's views, but concluded that matters relevant to her welfare and interests (her best interests) as its paramount consideration overrode those views. The Tribunal's decision making was in accordance with the s 4 principles in the Guardianship Act and accorded with Australia's interpretative declaration in respect of Article 17 of the CRPD. We are satisfied this ground lacks merit. The person's "impairment" is not "cognative" [sic] and does not impair her from knowing what she wants or the broad picture or being able to convey her wishes, the main reason for her need for assistance with her financial management is her immobility, the physical inability to do it in person, which was the reason she went into the home. Compounded by the hearing loss that makes telephone conversations difficult, these impairments do not affect her decision making. 1. We have already discussed this ground in our consideration of the first identified ground. We again repeat that the matter of the mother's capacity to manage her affairs was not an issue to be determined at the Review Hearing. The need for a Financial Manager was determined at the June 2020 hearing, the outcome of which was not subject of an appeal. In that event the Tribunal's reference to the mother having a "cognitive impairment", which may have been infelicitous on the state of the evidence, had no bearing on the outcome. Bases relied on in support of the son's application for leave to appeal 1. In the Notice of Appeal at par 6 the son sets out the following in support of his application for leave to appeal. In addition to the clear Questions of Law there are other factors. Significant in the events, that although were presented in document form to NCAT, were not discussed, were not included in the Reasons and appear to have been either ignored or concealed, and as a result their influence on the case, which I believe weigh heavily against the Tribunal's decision that were not taken into account. NCAT made poor use of its "investigative powers" to identify what was "in the best interests" of "the Person", instead focussing on finding any possible fault, that they could allege in order to justify the orders sought. Denying justice to the Respondent and delivering a significant financial detriment on "the person" and the Respondent, and delivering a "Financial Advantage" to the Applicant and NSWTG. 1. Earlier in these reasons we set out the principles to be applied by an appellate Court or the Appeal Panel when determining an appeal from the Guardianship Division of the Tribunal as expounded by White J. 2. During the hearing the son asserted that financial records provided by the daughter were not considered during the hearing and this failure justified the granting of leave. As we have already noted, the records which were produced were the records in evidence at the June 2020 hearing and relevant to the making of the financial order at that time. The son produced no up to date records and the only relevant financial information before the Senior Member was the report dated 21 April 2021 produced by the NSW Trustee. That report was subject of careful consideration by the Tribunal below. 3. We note that the schedule of payments, not supported by corroborative documentation, provided by W. A. Baxter & Co was not in evidence in the Tribunal below and was not admitted by us as further evidence. Thus, it is unnecessary that we comment on the daughter's critique of the schedule in her submissions dated 19 September 2021. We note that the son may wish to provide the schedule and corroborative documentation to the NSW Trustee in support of his views about the future financial management of the mother's affairs. 4. The reasons set out by the son in support of his application for leave to appeal and his oral submission discussed in the preceding paragraphs do not disclose any error of principle or matter of general policy which would warrant a grant of leave. Further, the son has not established a failure by the Tribunal below to consider a relevant matter, or to have misdirected itself. Thus, there is nothing which warrants the grant of leave to appeal under s 80 (2) (b) of the NCAT Act. Orders 1. The application for leave to appeal is dismissed. 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: 14 October 2021