ZVS v ZVT [2022] NSWCATAP 71

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: ZVS v ZVT [2022] NSWCATAP 71 Hearing dates: 3 December 2021 Date of orders: 16 March 2022 Decision date: 16 March 2022 Jurisdiction: Appeal Panel Before: J S Currie, Senior Member J D'Arcy, Senior Member S Taylor, Senior Member Decision: 1.Appeal allowed 2.The whole of the case, comprising the First Respondent's two applications to the Guardianship Division subject to appeal, are remitted to the Guardianship Division for re-hearing by a differently constituted Tribunal. 3. The Tribunal's orders made on 7 July 2021 are to continue in force until further order of the Tribunal. Catchwords: APPEALS – Civil and Administrative Tribunal (NSW) – appeal from Guardianship Division. GUARDIANSHIP – POWERS OF ATTORNEY-review of appointment of enduring guardians and of enduring power of attorney- guardianship order and order for removal from office of one of two attorneys made. Asserted errors of law- denial of procedural fairness- inadequate reasons for decision – failure to take into account mandatory consideration. Errors of law established – appeal allowed. PROCEDURE – APPEALS- Civil and Administrative Tribunal (NSW) Appeal Panel – appeal from Guardianship Division – obligation of Appeal Panel to assist unrepresented appellant in formulation of their case. PROCEDURE- Representation-McKenzie Friend- right to legal representation in Guardianship Division proceedings-party's right to access to and consultation with their lawyer- role of McKenzie Friend. Where Tribunal permitted hearing to continue and made findings against party notwithstanding that her access to McKenzie Friend had been impeded as the result of Tribunal's procedural direction. Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) sections 36, 80(2), 80(3) Guardianship Act 1987 (NSW); sections 6J, 14, 15 (3), 17. Powers of Attorney Act 2003 (NSW); sections 33, 36, 37 Cases Cited: BHP Billiton Ltd v Dunning [2013] NSWCA 421 Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389 [1996] HCA 36 Collins v Urban [2014] NSWCATAP 17 Cominos v Di Rico [2016] NSWCATAP 5 Damjanovic v Maley (2002) 55 NSWLR 149 Frost v Kourouche (2014) 86 NSWLR 214; [2014] NSWCA 39 George Papazachariou v Michael Antoun [2015] NSWCATAP 157 Ladd v Marshall [1954] 1 WLR 1491 McGuirk v Vice Chancellor, University of NSW [2009] NSWADTAP 43 McKenzie v McKenzie [1970] 3 All ER 1034; [1971] P 33 Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 Noueri v Paragon Finance (No.2) [2001] EWCA Civ 1402 Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 Scarce v Killalea [2003] WASCA 81 Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141 Category: Principal judgment Parties: ZVS (Appellant) ZVT (First Respondent) ZVV (Second Respondent) ZVU (Third Respondent) NSW Trustee & Guardian (Fourth Respondent) Public Guardian (Fifth Respondent) Representation: Appellant, First, Second and Third Respondents in person. No appearance by Fourth Respondent. Fifth Respondent by Ms A. Scott (Senior Guardian) File Number(s): 2021/00221245 Publication restriction: Decisions of the Appeal Panel in respect of orders of the Guardianship Division of the Tribunal have been anonymized to remove any information that may identify any private person involved in the Tribunal's proceedings. The publication of the name of any of the parties or other people referred to in this decision other than the Public Guardian and the NSW Trustee and Guardian, including the publication of any information or other material that identifies them or is likely to lead to their identification, is prohibited: Civil and Administrative Tribunal Act 2013, section 65. Decision under appeal Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Guardianship Division Citation: Nil Date of Decision: 07 July 2021 Before: J Halbert, Senior Member C M Kennedy, Senior Member B R Epstein-Frisch AM, General Member File Number(s): 2021/ 00139594