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 reasons for decision What was this appeal about? 1. This was an appeal from decisions of the Guardianship Division of the Tribunal made in response to an application for the Tribunal's review of an enduring guardian appointment (the EGA) and an enduring power of attorney (the EPOA) made by ZVV, a woman of 86 years who had been diagnosed with Alzheimer's disease and moderate to severe cognitive difficulties. The Tribunal decided: 1. to make a guardianship order for ZVV under which the Public Guardian was appointed as her guardian for 12 months with the authority to decide where she should reside and 2. to order that one of ZVV's daughters, ZVS, be removed as ZVV's attorney under the EPOA, leaving ZVV's other daughter, ZVU, as the sole attorney. 1. ZVS appealed against both those orders on the basis that she had been denied procedural fairness. 2. For the reasons set out below we found that ZVS had been denied procedural fairness by the Tribunal's decision to separate her from her appointed lawyer, who had been recognised by the Tribunal as her McKenzie Friend, ZCW, and that that had deprived ZVS of her lawyer's advice, counsel and assistance in a hearing in which substantial adverse allegations were made about ZVS's actions and as a result of which the Tribunal made adverse findings about ZVS in determining its orders. The Tribunal's powers 1. The Guardianship Division has power: 1. to review appointments of enduring guardians under section 6J of the Guardianship Act 1987 (Guardianship Act) and to make orders or take alternative action as set out in section 6K of that Act, which allows the Tribunal to treat the application as an application for a guardianship order; and 2. to review enduring powers of attorney under section 36 of the Powers of Attorney Act 2003 (POA Act) and to make orders or to take alternative action as set out in section 37 of that Act, which allows the Tribunal to treat the application as an application for a financial management order. Background facts 1. At the time of the Tribunal's hearing, ZVV was aged 86 years and had resided for about 4 years at an aged care facility at a major centre in the Riverina region of New South Wales. She had been diagnosed with Alzheimer's disease. Her prognosis was for moderate to severe cognitive difficulties, which most likely would be permanent. 2. Under both the EGA and the EPOA, ZVV had appointed her husband and her two daughters ZVU and ZVS to act jointly and severally to make decisions on her behalf. ZVV's husband passed away in October 2017. 3. A dispute arose between family members. The issues broadly stated concerned where ZVV should live and how her estate, that is her property and her money, should be managed on her behalf. On 18 May 2021, ZVU's husband (ZVV's son in law) ZVT applied to the Tribunal for a review of the EGA and of the EPOA. The hearing was held on 7 July 2021 and the Tribunal made its orders at the conclusion of the hearing. The general issues on appeal and our decisions on them 1. On 3 August 2021 the Registry received ZVS's Notice of Appeal. 2. An internal appeal, that is an appeal against decisions such as those made by the Guardianship Division here, may be made as of right on a question of law, and otherwise with permission (that is, the "leave") of the Appeal Panel: section 80(2) Civil and Administrative Tribunal Act 2013 (NCAT Act). 3. It fell to us to decide: 1. whether, in reaching either or both of its decisions regarding, the Tribunal had fallen into legal error; that is, had made its decision on the basis of an error of law, in which case ZVS's appeal would proceed as of right; 2. whether we should in any case grant ZVS leave to appeal; and 3. what orders we should make. 1. We decided as follows: 1. That in its conduct of the hearing the Tribunal had fallen into legal error, because it had denied procedural fairness to ZVS. It had done so by causing her appointed McKenzie Friend to remove herself to another location during the hearing, such that they could not communicate and ZVS was thereby deprived of the legal and strategic advice and direction which any McKenzie Friend is authorised to provide. Because that error justified our ordering a rehearing of both applications by the Guardianship Division, it was not necessary to determine whether to grant leave to appeal, although if we had been required to address that issue, we would have granted that leave.(See further [74] below) 2. The appropriate orders were therefore that the whole of the case, comprising the two applications to the Guardianship Division, should be remitted to the Guardianship Division for re-hearing by a differently constituted Tribunal. 3. Because it was important that ZVV's welfare and interests be protected and preserved until the re-hearing could take place and a new decision made, the Tribunal's orders of 7 July 2021 (including of course the appointment of a guardian and the removal of ZVS as attorney) were to continue in force until further order of the Tribunal. 1. These are our reasons for those decisions. Uncontested facts 1. The facts described at [5] to [7] above appeared to be undisputed in the appeal. Contested facts 1. As is usual in the hearing of appeals involving proceedings which have their origin in family disputes, not all the underlying facts were undisputed, but most were not relevant to our consideration. Two exceptions, that is, facts which were in dispute were: 1. the facts relating to the storage of boxes containing some of ZVV's possessions and litigation concerning the recovery of commercial storage fees incurred ("the boxes issue''), which is explained further below; and 2. the facts surrounding the allegation that ZVS had wrongfully withdrawn funds from ZVV's account "possibly for her own purposes" as set out in the Tribunal's reasons for decision ("Reasons"), at paragraph [56]. "The boxes" issue 1. This issue was important, because the Tribunal was clearly influenced by it to conclude that ZVS should be removed as an attorney. As such a further explanation of the issue is appropriate. The issue related to the treatment of boxes which were used to store some of ZVV's possessions when she moved to the aged care facility and which were then placed in storage. The relevant facts are summarised in the Reasons at [53]- [55], as follows: [53] ZVS told us that her then partner offered that the boxes be stored in his shed. She later found out that the boxes had been stored in paid storage at a cost of $250 per month. Following the breakdown of their relationship, proceedings were instituted by ZVS's former partner for recovery of the costs of the storage. ZVS, with the assistance of her solicitor, negotiated a settlement of the claim for a sum considerably less than that claimed, plus legal costs. [54] ZVU told us she was not informed about the legal proceedings and only found out about them when a summons was served on ZVV at [the aged care facility]. ZVU said she was not consulted about the settlement negotiations and was presented with a bill for legal costs said to be incurred on ZVV's behalf by ZVS's solicitor. As a result ZVU says she has lost trust in ZVS and can no longer work with her as [attorney]. [55] ZVS acknowledged that ZVU should have been consulted regarding the court proceedings and settlement discussions. She nevertheless submitted she and ZVU could work together in the future as ZVV's [attorneys]… 1. The Tribunal's conclusions on this issue and more significantly its stated reasons for removing ZVS as an attorney at Reasons [56]-[61], particularly those at [56], reflected its acceptance of ZVU's account and rejection of ZVS's. On that basis the Tribunal made findings and drew conclusions which were unfavourable to ZVS and pertinent to its decision to remove her as one of her mother's attorneys. Preliminary issue: the attempt to introduce new evidence 1. ZVS sought to introduce new evidence at the appeal hearing. Essentially that was evidence as to a loan of $30,000 allegedly made by her mother ZVV to her sister ZVU. ZVS raised these issues in her written submissions and in two documents dated 28 November 2021, being Documents A7 and A8 in the Appeal package. 2. As we understood it that evidence was sought to be introduced in order to support a contention that ZVU may not have been a suitable person to be entrusted with managing their mother ZVV's affairs (either as an attorney or potentially as a financial manager). If established that would undermine the Tribunal's conclusions and findings as to ZVU's suitability for continued appointment as attorney. We understood ZVS's contentions to be that ZVU had failed to repay the $30,000 loan by the due date, that there had been at least one withdrawal from ZVV's account whose destination or purpose was unclear and that Kay had improperly used ZVV's disability parking permit. 3. The Appeal Panel's primary role is to determine whether there has been an error of law or whether leave to appeal should be granted. The Panel does not deal in evidentiary matters or admit evidence other than in two specific situations: 1. The first is where the Panel exercises its discretion under section 80 (3) of the NCAT Act to decide to deal with the appeal by way of a new hearing. In that situation, paragraph (b) of section 80 (3) permits fresh evidence or evidence in addition to or in substitution for the evidence received by the Tribunal at first instance to be given on appeal. But that was not applicable here. There was no application before us to deal with the appeal by way of a new hearing and there was no apparent justification for such a course of action. 2. The second is where there is an application for leave to appeal and the appeal is from a Division of the Tribunal other than the Consumer and Commercial Division, for which special rules, set out in clause 12 of Schedule 4 to the NCAT Act apply. This is not an appeal from that Division. So the evidence can only be accepted by us in accordance with what are known as the principles in Ladd v Marshall [1954] 1 WLR 1491. The Ladd v Marshall principles require, amongst other things, that it be demonstrated that the evidence could not have been obtained with reasonable diligence at the original hearing. 1. When we asked ZVS why the evidence was not available at the hearing ZVS's response was in these terms: "All evidence was to be discussed by the legal representative on the day of the hearing however was dismissed." 1. The only plausible construction of that sentence is that the evidence had indeed been obtained and was available on the day of the hearing. No other explanation was put to us. Therefore, the Ladd v Marshall principle referred to at [19](2) above could not be satisfied. 2. For those reasons we took no new evidence into account. Documentary material 1. The principal documentary material made available to us comprised a copy of the Tribunal's orders and the Reasons, the original applications to the Tribunal for review of the EGA and the EPOA, the Notice of Appeal, a Reply by ZVT as First Respondent with attached written submissions filed on 23 August 2021, written submissions from ZVS lodged on 13 September 2021, further written submissions from ZVT lodged on 23 and 28 September 2021. The Appellant, ZVS's case 1. Although ZVS's Notice of Appeal and submitted documents were not clear in this regard, it seemed that, in general terms, she was appealing against the Tribunal's decisions because she felt that the hearing had been "one-sided" and unfair to her. In summary, she asserted that she had been separated from her solicitor ZCW. The Tribunal had refused leave for ZCW to represent ZVS, but immediately thereafter had permitted ZCW to participate as ZVS's "McKenzie Friend". We have explained the status and functions of a McKenzie Friend in more detail below, at [41]-[46]. 2. It was clear from those documents and ZVS's oral submissions to us that she asserted that as a result of her separation from her appointed McKenzie Friend ZCW during the hearing, she had been deprived of the benefit of any legal or strategic advice or counsel from her and for that reason had not been fairly heard. 3. More generally, we understood ZVS to contend, in particular, that she was deprived of legal advice as to her response to allegations put by ZVS and ZVT particularly on the boxes issue and the suggestion that she wrongfully dealt with her mother's funds, as explained at [15]-[16] above. She also asserted that she had not been given sufficient time to present her case and had been deprived of the opportunity to respond adequately to assertions by ZVT and other family members that she was not of good character, should not be trusted to manage her mother's financial affairs and therefore should be removed as her attorney. 4. But no other grounds of appeal or asserted errors of law were evident from what ZVS submitted. 5. Decided cases have recognised that it can be difficult for self-represented appellants to express clearly their grounds of appeal, or to do what is frequently even more challenging: to identify clearly an error of law on which they rely: see for example George Papazachariou v Michael Antoun [2015] NSWCATAP 157 and Cominos v Di Rico [2016] NSWCATAP 5 ("Cominos"). 6. It was said in the leading case of Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 ("Prendergast") at [12] that where an appellant is unrepresented it is appropriate for the Appeal Panel to approach the issue of whether there is a legitimate question of law in the appeal and the nature of any legal error by looking at the grounds of appeal generally, but it is not the Appeal Panel's role to draft grounds of appeal for the appellant which have not been raised and then resolve them, unless the issues go to the jurisdiction of the Tribunal or are otherwise necessarily considered to resolve the appeal. 7. On that basis, we concluded that ZVS's Notice of Appeal and her other documentation identified an error of law; namely a failure by the Tribunal to afford her procedural fairness, in two related but distinct respects: 1. by causing ZVS's appointed McKenzie Friend to remove herself to another location during the hearing, such that there could effectively be no communication between lawyer and client. ZVS's contention was that she was thereby denied the benefit of legal and strategic advice and direction, including in response to allegations raised against her, which her McKenzie Friend might have provided; and 2. by providing insufficient time for ZVS to present her case and to respond adequately or persuasively to allegations made about her character and her actions by family members, which the Tribunal seemed to accept. ZVS asserted that she had been deprived of the opportunity to respond adequately to those allegations and that the Tribunal had failed to afford her a fair hearing by not giving her sufficient time to present her case or to respond adequately to allegations and suggestions of the other family members. 1. We could not ascertain any other error of law relied upon by ZVS. 2. If procedural fairness in either respect identified above at [30] is established, an error of law will have been established. The characteristics of various classes of error of law were described in Prendergast: see further [38] below. The Respondents' cases 1. ZVT and ZVU opposed the appeal and at our hearing ZVT, with ZVU's consent, made oral submissions on behalf of both those parties. 2. They supported the Tribunal's decisions. They contended that despite some telephone problems ZVS had had time to prepare for the hearing and had received a fair hearing. In relation to the Tribunal's direction that ZVS's solicitor move to sit with ZVV, we understood them to contend that this issue would not have arisen had ZVS not changed the arrangements for the hearing: ZVV was to participate from the aged care facility, but ZVS had insisted that her mother accompany her to the solicitor's office. 3. They further contended that there was sufficient evidence to support the Tribunal's conclusion that ZVS should be removed as attorney. Specifically they supported the Tribunal's findings expressed in its concluding paragraphs (Reasons [60] and [61]) that ZVS demonstrated a lack of transparency and that the Tribunal was satisfied that she should be removed as an attorney. They opposed ZVS's attempts to introduce new evidence at the appeal hearing. 4. Ms Athela Scott, a Senior Guardian, indicated that the Public Guardian (the Fifth Respondent) would not be making any submissions. ZVV did not participate at the hearing. Mr Ross Ford, from the aged care facility where she lives, did participate but made no submissions. 5. ZVV herself (the Second Respondent) and NSW Trustee and Guardian (the Fourth Respondent) presented no case in response to the appeal. Relevant Law What is "an error of law" 1. In Prendergast at [13] the Appeal Panel set out a non-exclusive list of questions of law: 1. whether there had been a failure to provide proper reasons; 2. whether the Tribunal below had identified the wrong issue or asked the wrong question; 3. whether a wrong principle of law had been applied; 4. whether there had been a failure to afford procedural fairness; 5. whether the Tribunal below had failed to take into account relevant (i.e., mandatory) considerations; 6. whether the Tribunal had taken into account an irrelevant consideration; 7. whether there had been no evidence to support a finding of fact; and 8. whether the decision made was so unreasonable that no reasonable decision-maker would have made it. Leave to appeal 1. The principles governing an application for leave to appeal against a decision of this Tribunal are well-established and are repeated in many decisions of the Appeal Panel, often quoting Collins v Urban [2014] NSWCATAP 17 ("Collins"). They are the same principles applied by the courts. 2. It is clear, from Collins at [84], that: 1. in order to be granted leave to appeal, the appellant must demonstrate something more than that the decision was arguably wrong or that there is some bona fide challenge available to an issue of fact; see also BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [20] and Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; and that even if the appellant does demonstrate that "something more", 2. ordinarily, it is appropriate to grant leave only in matters that involve: 1. issues of principle; 2. questions of public importance or matters of administration or policy which might have general application; 3. 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; 4. a factual error that was unreasonably arrived at and clearly mistaken; or 5. 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. consideration- the "mckenzie friend' issue Right to representation by a "McKenzie Friend" in Guardianship Division proceedings 1. The Tribunal, in ordering that ZCW could participate as the McKenzie Friend of ZVS, acted in accordance with the Guardianship Division's Guideline " Representation" issued in August 2017, paragraph [32] of which confirms that: A legal practitioner may attend the hearing with their client and act as their McKenzie Friend. In this role, a legal practitioner can support their client during the hearing by making notes, helping their client to organise their papers or giving advice or prompts during the hearing. However, the legal practitioner does not have a right to participate in the proceedings as an advocate. Judicial recognition of the status and importance of a McKenzie Friend 1. The role of a McKenzie Friend and the limitations on any court's or tribunal's power to interfere with that role were laid down in McKenzie v McKenzie [1970] 3 All ER 1034; [1971] P 33 (McKenzie v McKenzie). That was an appeal to the English Court of Appeal. During the hearing at first instance one of the parties had received informal advice from a young Australian barrister Mr Hanger (who, in his later career, became Queen's Counsel and a leader of the Queensland Bar). Mr Hanger was not at the time of the trial admitted to practice in England. He sat with Mr McKenzie, apparently at the Bar table. He did not seek leave to appear for Mr McKenzie generally and did not address the court. He merely proffered quiet oral advice and guidance to Mr McKenzie. After some time the trial Judge asked Mr Hanger to desist from doing that and asked him to sit in the public area of the court , from which he could have had no contact with Mr McKenzie. Mr Hanger complied with that request and subsequently left the court room as he believed he was serving no useful purpose. 2. Significantly, the Court of Appeal was most critical of the way in which the trial Judge had acted. It found that his directions to Mr Hanger to remove himself from Mr McKenzie's company constituted an error of law, in that it had prevented Mr Hanger from providing quiet advice and guidance to Mr McKenzie. In the Court of Appeal's view, the Court at first instance had erred (most significantly for our considerations in this matter) in suggesting that Mr Hanger remove himself from the immediate presence of Mr McKenzie. On the basis of that error of law the appeal succeeded. 3. The result in McKenzie v McKenzie, the role of a McKenzie Friend and its significance to the person represented has been confirmed in several Australian cases, including Scarce v Killalea [2003] WASCA 81, where it was said by McClure JA that: A McKenzie Friend assists a party before the court by, for example, making notes and giving suggestions or advice to the litigant in person but does not perform the role of an advocate or representative: McKenzie v McKenzie… (Our emphasis) 1. See also many New South Wales cases including Damjanovic v Maley (2002) 55 NSWLR 149 and McGuirk v Vice Chancellor, University of NSW [2009] NSWADTAP 43. 2. A court or tribunal can of course remove a McKenzie Friend or limit their actions if they are acting contrary to the efficient administration of justice: see for example Noueri v Paragon Finance (No.2) [2001] EWCA Civ 1402. But there is no suggestion that that occurred here. What effect did this error have? Relevant findings by the Tribunal 1. In its Reasons at [56] the Tribunal noted the various allegations which had been raised against ZVS and said: [60] Other allegations were raised against ZVS regarding withdrawals of funds from ZVV's account, possibly for her own purposes, and a general lack of transparency and accountability for the use of ZVV's money including failure to provide receipts… The Tribunal did not make findings about those allegations although they were not specifically denied by ZVS. (Our emphasis) 1. However, despite the Tribunal's statement that it did not make findings about the allegations, in the concluding paragraphs of its Reasons, at [60] and [61], the Tribunal did make adverse findings against ZVS. It is appropriate to consider those paragraphs in detail. The Tribunal concluded (it used the term "considered", but in the context that can only have indicated a conclusion) that ZVV's wishes and best interests would best be served by at least one of her daughters ZVS and ZVU continuing as her attorney, …given that they could not work together. 1. The last phrase must be a finding and it must be read with what immediately follows, which was: The Tribunal found that ZVS demonstrated a lack of transparency with ZVU around the problem with the boxes, which had significant cost to ZVV's estate." (Our emphasis) 1. The phrase underlined in [47], as to the Tribunal not making any findings about certain aspects of what was alleged to be ZVS's transparency, cannot be read in isolation from the rest of the Reasons . Even if it is accepted the Tribunal made no express finding that ZVS lacked transparency generally (that is, that she could not be relied upon at all to be transparent in dealings with all others), quite clearly the Tribunal did find that she lacked transparency in dealing with her sister ZVU: see the words cited at [49]. 2. That must also amount to a finding that ZVS had demonstrated a lack of transparency in dealing with her mother's affairs. 3. That is a most serious finding in the context of the case and generally. A finding that a person "lacks transparency" in any context carries with it an ongoing taint on the person's character in the same way, although perhaps not always to the same extent, as the debasement inflicted by describing someone as being "economical with the truth". It is a euphemism. What is clearly understood is that the person concerned lacks probity. In the present context, the finding of a lack of transparency was central to the Tribunal's conclusion that ZVS should be removed as an attorney. 4. The significance of that conclusion is that it was based on evidence and submissions provided in that part of the hearing during which ZVS was effectively deprived of the benefit of advice and counsel from her McKenzie Friend. Conclusions as to the McKenzie Friend issue 1. In conducting the hearing the Tribunal was faced with material logistical hurdles, in particular the fact that the hearing was conducted "remotely" by videoconference and telephone, apparently attended by the frequently-experienced problems of poor or variable video and sound connections. We have taken those difficulties into account. 2. Additionally the Tribunal, in requiring ZVS's solicitor ZCW to remove herself from ZVS's presence, was making a well-motivated attempt to ensure that ZVV, the subject person who had a disability, was not left alone. That of itself was understandable and admirable. But the Tribunal picked the wrong "companion" for ZVV, namely ZCW and it took that action without ensuring that ZVS would at all times feel free to, and would be enabled to, confer with ZCW as her McKenzie Friend and to obtain her advice, counsel and quiet assistance. 3. That was the wrong approach. Although it was motivated by understandable motives, it impeded ZVS's access to her McKenzie Friend in the same way as Mr McKenzie's access to the advice, counsel and assistance of Mr Hanger was found by the Court of Appeal to have been impeded, in McKenzie v McKenzie. 4. As in McKenzie v McKenzie, it constituted an error of law. 5. That result must obtain, because the Tribunal's action constituted a failure by it to afford procedural fairness to ZVS, in that it denied her access to legal advice and counsel to which she was entitled and which her McKenzie Friend ZCW could have provided and that in turn effectively denied ZVS the opportunity to present her case and explain her actions more completely. 6. The rules of procedural fairness are designed to "avoid practical injustice": Re Ministe r for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 at [37]; Frost v Kourouche (2014) 86 NSWLR 214; [2014] NSWCA 39 at [4 1]. In our view the Tribunal's actions were the cause of real and practical injustice to ZVS. 7. The Tribunal's actions therefore amounted to a failure to afford procedural fairness to ZVS. As such, it constitutes an error of law. An earlier appeal decision distinguished 1. That is a different result to the one which obtained in the Appeal Panel's decision in ZQB v ZPV [2020] NSWCATAP 274 ("ZQB"). In that case the Appeal Panel (differently constituted) found that there had been no lack of procedural fairness in the circumstances in a hearing conducted by a Panel of the Guardianship Division. 2. But the facts and the issue before the Tribunal in ZQB differed from those in the present appeal. Firstly, in ZQB the Tribunal's decision was to decline an application by a solicitor to represent his client as a McKenzie Friend. The client was the subject person in those proceedings. The basis upon which the Appeal Panel determined that no procedural unfairness had resulted were set out in its reasons for decision at [45], in the following way: (The solicitor) conceded that he could not point to a solution to the problem posed by the Tribunal about how he would assist the Subject Person in circumstances where they were not co-located. But perhaps more to the point, (the solicitor's) account of his meeting with the Subject Person tends to suggest that even if co-located with the Subject Person, he is unlikely to have been able to assist the Subject Person to participate in the hearing or to express his view. 1. On that basis the Appeal Panel concluded that the subject person's right to procedural fairness had not been disturbed by refusal of a right of representation. 2. The situation before us is quite different. There is no suggestion here that even if "co-located" with ZVS, her solicitor ZCW would have been unable to assist her. In fact the opposite result seems more likely. 3. We are satisfied that the Tribunal's decision here caused real and impractical injustice to a party, ZVS, so that she was not afforded procedural fairness. consideration- other Procedural unfairness issues 1. On the basis of our careful consideration of the sound recording of the hearing, the Reasons and related material we could not be persuaded that the error of law as described at [30](2) above and asserted by ZVS, had been established. That is, one based on general "unfairness " as to the conduct of the hearing, as opposed to the unfairness arising from ZVS's lack of access to her McKenzie Friend. 2. The sound recording of the hearing, which we have listened to in full, establishes that the Tribunal provided ZVS with such time as was in the circumstances reasonable, in order to present her case and to answer questions. Procedural unfairness: the principle in Stead v SGIO 1. Having found that ZVS was deprived of procedural fairness, our inclination would be to remit the whole case to the Guardianship Division for a re-hearing. 2. But an important qualification on such a decision was raised by the High Court of Australia in Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141(Stead). 3. In Stead, the High Court confirmed the general principle by which any party is entitled to a "fair trial" or fair hearing; that is to say, to what it called "natural justice", including procedural fairness. But at [9] and [10] the Court noted that there was an outstanding "practical question" to be raised in every case and that was: Would further information possibly have made any difference? That qualification is that an appellate court will not order a new trial if (that new trial) would inevitably result in the making of the same order as that made…at the first trial. An order for a new trial in such a case would be a futility. 1. But the High Court went on, at [11] to explain: Where, however the denial of natural justice affects the entitlement of a party to make submissions on an issue of fact, especially when the issue is whether the evidence of a particular witness should be accepted, it is more difficult for a court of appeal to conclude that compliance with the requirements of natural justice could have made no difference...it is no easy task for a court of appeal to satisfy itself that what appears on the face to have been a denial of natural justice could have had no bearing on the outcome of the trial of an issue of fact. And this difficulty is magnified when the issue concerns the acceptance or rejection of the testimony of a witness at the trial… 1. We cannot be satisfied that a new hearing of this matter by the Guardianship Division would inevitably lead to the same result as occurred at the hearing on 7 July 2021. In reaching that conclusion we note that the denial of procedural fairness (or "natural justice") in the hearing did have some effect on the entitlement of ZVS to make full and well-advised decisions on issues of fact. conclusion: error of law 1. It follows that we should allow the appeal and we should remit the matter to the Guardianship Division for re-hearing. consideration: grant of leave to appeal 1. Although we have decided to allow the appeal we strictly do not need to determine the application for leave to appeal. But, for completeness, we confirm that we would have been inclined to grant that leave, because the proceedings involve an issue of principle, which is also a question of general public importance or policy which might have general application, namely the right to legal advice and counsel in particular through the active presence of a McKenzie Friend. conclusion 1. It must follow that the appeal should be allowed and the matter remitted for hearing by a differently constituted panel of the Guardianship Division. Because it is important that ZVV's welfare and interests be protected and preserved until the re-hearing can occur and a new decision be made, the Tribunal's orders of 7 July 2021, including of course the appointment of a guardian and the removal of ZVS as attorney, should continue in force until further order of the Tribunal. 2. Our orders are therefore as follows. Orders 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 orders of the Guardianship Division made on 7 July 2021 are to continue in force until further order of the Guardianship Division. ********** 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: 16 March 2022