Civil and Administrative Tribunal New South Wales Medium Neutral Citation: ZWA v ZWB [2022] NSWCATAP 113 Hearing dates: 3 December 2021 Date of orders: 13 April 2022 Decision date: 13 April 2022 Jurisdiction: Appeal Panel Before: J S Currie, Senior Member J D'Arcy, Senior Member S Taylor, Senior Member Decision: 1. The appeal is allowed. 2. The guardianship application is remitted to the Guardianship Division for re-hearing by a differently constituted tribunal. 3. The guardianship orders made on 12 August 2021 are to continue in force until further order of Guardianship Division. Catchwords: APPEALS – Civil and Administrative Tribunal (NSW) – appeal from Guardianship Division. GUARDIANSHIP- Appointment criteria for guardian –misapplication of statutory criteria for appointment- choice of guardian determined by "dispute resolution" process based on perceived family consensus. Errors of law: identifying wrong issue, asking wrong question, failure to take into account mandatory considerations. Appeal allowed. Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) sections 36 (1),(2), 37, 38 (2), 80 (2). Civil and Administrative Tribunal Rules 2014 (NSW); Rules 13(4)(a), 25(4)(c), 25(4A). Guardianship Act 1987 (NSW) sections 4, 15 (3), 16 (1), 17 (1). Cases Cited: BHP Billiton Ltd v Dunning [2013] NSWCA 421 Collins v Urban [2014] NSWCATAP 17 Cominos v Di Rico [2016] NSWCATAP 5 CS and MY v The Guardianship Tribunal and Public Guardian (Unreported, Supreme Court NSW, Windeyer J., 29.11.99) DCA v Public Guardian [2017] NSWCATAD 364 FGE (2) [2012] NSWGT 3 (16 March 2012) George Papazachariou v Michael Antoun [2015] NSWCATAP 157 Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 P v D1 & Ors [2011] NSWSC 257 P v NSW Trustee and Guardian [2015] NSWSC 579 Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 W v G [2003] NSWSC 1170 WL v NSW Trustee and Guardian (External) [2011] NSWADTAP 22 WPC [2020] NSWCATGD 83, ZAN v The Public Guardian [2016] NSWCATAP 20 ZGB v ZGC [2018] NSWCATAP 58 ZVS v ZVT [2022] NSWCATAP 71 Category: Principal judgment Parties: ZWA (Appellant) ZWB (First Respondent) ZWC (Second Respondent) ZWD (Third Respondent) Public Guardian (Fourth Respondent) Representation: Nil File Number(s): 2021/00265950 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 person involved in the Tribunal's proceedings. The publication of the name of any of the parties (other than the Public Guardian) or other people referred to in this decision 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: Civil and Administrative Tribunal Jurisdiction: Guardianship Division Citation: Nil Date of Decision: 12 August 2021 Before: C Cody, Senior Member Dr C Pratten, Senior Member S Bullock, General Member File Number(s): 2021/ 00178800 reasons for decision What was this appeal about? 1. This was an appeal by ZWA from a decision of the Guardianship Division of the Tribunal on 12 August 2021 to make a guardianship order for her mother ZWB, who at the time of the hearing was aged 87 years. In mid- 2021 ZWB had been diagnosed by a geriatrician as having dementia, most likely Alzheimer's disease, with significantly reduced cognitive capacity, loss of memory and little insight into her condition. 2. ZWB has 4 adult children: ZWA, ZWC, ZWD and a son. By separate instruments dated 8 February 2017 ZWB made an appointment of enduring guardians ("the AEG") and an enduring power of attorney ("the EPOA"). Under the AEG she appointed ZWA and ZWC jointly as her enduring guardians. Under the EPOA she appointed ZWA and ZWC jointly and severally as her attorneys. 3. On 22 June 2021 ZWA applied to the Guardianship Division for guardianship and financial management orders for ZWB. ZWA sought to be appointed as ZWB's guardian. The Guardianship Division conducted a hearing of both applications on 12 August 2021. It made a guardianship order on that date appointing ZWA's sister ZWD as ZWB's guardian. 4. ZWA appealed against that decision. 5. At the hearing on 12 August 2021 the Tribunal also had before it an application for financial management orders for ZWB. It decided to adjourn that application. There was no appeal against that decision. 6. An internal appeal such as this may be brought as of right on a question of law, and otherwise with the leave (that is, the permission) of the Appeal Panel: section 80 (2) Civil and Administrative Tribunal Act 2013 ("NCAT Act"). 7. It therefore fell to us to decide: 1. whether, in reaching its decision to appoint ZWD as ZWB's guardian, the Tribunal had fallen into legal error; that is, had made its decision on the basis of an error of law, in which case ZWA's appeal would proceed as of right; 2. whether we should in any case grant ZWA leave to appeal; and 3. what orders we should make. 1. For the reasons given below, we decided that: 1. we should allow the appeal because the Tribunal had fallen into legal error in deciding to appoint ZWD as guardian, as it had identified the wrong issues, asked the wrong questions and failed to take into account mandatory considerations in reaching its decision; 2. given that the appeal would be allowed, there was no need to consider ZWA's application for leave to appeal; and 3. it followed that we should make orders allowing the appeal, remitting the guardianship orders for re-hearing by a differently constituted panel of the Guardianship Division and, so as to avoid any uncertainty as to who has authority to make important life decisions for ZWB pending the re-hearing, an order that the Tribunal's orders of 12 August 2021 including the appointment of ZWD as guardian should continue in force until further order of the Tribunal. Agreed facts and contested facts 1. On appeal, the matters set out at [1] to [5] above were uncontested. However, conflicting assertions which had been made by the parties at the Tribunal's hearing concerning the respective suitability of ZWA, ZWC and ZWD for appointment as guardian continued to be contested as between ZWA and her siblings who were parties to the appeal. Documentary material 1. The principal documentary material made available to us comprised a copy of the Tribunal's orders and its reasons for decision ("Reasons"), the guardianship application, a bundle comprising material filed in the guardianship proceedings, the Notice of Appeal, initial and subsequent written submissions by the Appellant, initial and supplementary written submissions from the Second Respondent, initial and supplementary written submissions from the Third Respondent, the Appellant's written submissions in response to the Second and Third Respondent's submissions and all interlocutory orders and directions made by the Appeal Panel. Preliminary issue: Was the appeal brought within time? 1. At an interlocutory hearing on 6 October 2021 the issue emerged as to whether the Notice of Appeal was filed within the time prescribed by the NCAT Act and the Civil and Administrative Tribunal Rules 2014 (NSW) ("NCAT Rules"). 2. Rule 25(4)(c) of the NCAT Rules, when read with Rule 25(4A), requires a notice of appeal to be lodged with the Registry within 28 days of the later to occur of: 1. the day on which the appellant was notified of the decision; and 2. the date that reasons for that decision "are first given, whether orally or in writing". 1. In ZWA's Notice of Appeal she indicated, against the question: "Date noticed decision was received" that it had been received on 12 August 2021. If that was so, her Notice of Appeal would have been out of time, because the Notice of Appeal was not received by the Registry until 16 September 2021. 2. The date of the hearing was 12 August 2021 and the Tribunal had announced its decision and orders at the conclusion of the hearing. 3. However, ZWA did not receive the Tribunal's written reasons for decision until they were posted to her by the Registry. It was uncontested that ZWA received those documents on 6 September 2021. They were apparently posted on or about that date. Under Rule 13(4)(a) of the NCAT Rules, a document sent by post is assumed to have been received on the 7th working day after the date it was posted. So, by operation of Rule13(4)(a) of the NCAT Rules, they were deemed to have been received by her seven working days later; that is on or after 13 September 2021. The Notice of Appeal was received by the Registry on 16 September 2021, only 3 days later. 4. Accordingly the Notice of Appeal was lodged within time. The Appellant, ZWA's case 1. ZWA's case, as summarised in a document headed "Application for leave to appeal", identified in some detail the grounds upon which she challenged the Tribunal's decision. In summary those grounds, as we understood them, included a lack of evidence in support of the contentions of her sisters ZWD and ZWC and her brother in law, excessive weight being given to ZWB's views, lack of enquiry by the Tribunal, particularly as to ZWD's involvement in ZWB's execution of Powers of Attorney and appointments of enduring guardian and the general unsuitability of ZWD for appointment as guardian. 2. As noted below, we endeavoured by discussion with ZWA to identify more clearly her grounds for appeal and in particular the error of law on which she relied and as a result we identified the asserted errors of law set out at [34] below. The Respondents' cases 1. Substantial written submissions were received from the Second Respondent ZWC (ZWA's sister) and the Third Respondent, her sister ZWD. In these submissions and at our hearing those Respondents supported the conclusions, findings and orders of the Tribunal and addressed many of the grounds raised by ZWA. Essentially their case was that the Tribunal's appointment of ZWD as their mother ZWB's guardian and its decision not to appoint ZWA to that role was appropriate and correct and that those decisions were in ZWB's best interests. 2. ZWB was the First Respondent. The Public Guardian was the Fourth Respondent. Neither of those Respondents filed any written submissions or appeared at the appeal hearing. The real issue in the proceedings 1. It emerged from our examination of these respective positions that the real issue on appeal was whether the Tribunal had erred in appointing ZWD as guardian and not appointing ZWA. 2. It was equally clear that there was no challenge to the making of a guardianship order for ZWB: only as to the identity of the appointed guardian. What is "an error of law" and what is "leave to appeal" 1. In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 ("Prendergast") at [13] the Appeal Panel determined the following 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. 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. Obligation to assist an Appellant to identify grounds, errors of law 1. ZWA was unrepresented at the appeal hearing. It was difficult for us to discern clearly from her Notice of Appeal or her supporting documents the precise nature of any assertion by her that the Tribunal had fallen into legal error in making its decisions; that is, that it had reached its decisions on the basis of an error of law. 2. In Prendergast it was said at [12] that where the appellant is unrepresented, it is appropriate for the Tribunal 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. It is necessary for the Appeal Panel to determine whether a question of law has in fact been raised, subject to any procedural fairness considerations that might arise to the respondent." 1. As to any procedural fairness considerations in regard to the respondents here, we were satisfied that each of the respondents had been afforded procedural fairness in the course of our identification of the grounds of appeal. In particular, in the course of ZWA's opening submissions at the appeal hearing we raised for consideration by all participants whether the Tribunal may have acted in error in the manner in which it reached a decision as to the identity of the guardian. In particular, we posed for consideration the question of whether an appointment of the Public Guardian might have been considered. ZWA responded to the effect that the appointment of the Public Guardian was a possible preferable outcome and that she had "an open mind" as to that. Immediately following ZWA's submissions in chief each of her sisters ZWC and ZWD (the only Respondents to participate in the appeal hearing) was invited to make submissions in response to those of ZWA. Neither of them raised contentions opposing our identification of that potential error. 2. In Prendergast it was also said that it is not the Appel 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. To the extent that our identification of the issues as above might be perceived as "drafting" grounds of appeal on behalf of the appellant ZWA, we were satisfied that the errors of law identified at [35] below were necessary for us to consider in order to so as to resolve the appeal fairly, quickly and cheaply and thereby to give effect to the Guiding Principle set out at section 36 (1) of the CAT Act . 3. We were also mindful of the warnings in cases including George Papazachariou v Michael Antoun [2015] NSWCATAP 157 and Cominos v Di Rico [2016] NSWCATAP 5 ("Cominos"), that it can be difficult for self-represented appellants to express their grounds of appeal clearly or to identify an error of law. In Cominos the Appeal Panel said, at [13]: "… In such circumstances and having regard to the guiding principle, it is appropriate for the Appeal Panel to review an appellant's stated grounds of appeal, the material provided and the decision of the Tribunal at first instance, to examine whether it is possible to discern grounds that may either raise a question of law or a basis for leave to appeal…Relevantly, s 38 (2) (of the NCAT Act) provides that the Tribunal 'may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice'." 1. On that basis we considered ZWA's grounds of appeal filed with her Notice of Appeal. They were entitled, incorrectly, "Application for Leave to Appeal" but were clearly intended to include all the grounds upon which she sought to appeal as of right. In them ZWA asserted principally that the Tribunal's fact-finding was erroneous, that undue weight had been given and claimed that errors of fact had resulted. For example, her written submissions headed "Additional Comments for Appeal" dated 26 September 2021 rely on asserted errors by the Tribunal in the fact-finding process and in reaching conclusions as to fact, particularly as to her character and suitability for appointment as guardian. She asserted for example at [3] that the Tribunal had not been : "….diligent in dismissing these negative comments (by her siblings)…(and) I believe they have taken my siblings' (evidence) as being truthful and this has unfairly cast aspersions on my character." 1. However errors of fact will not normally ground an appeal. Prendergast identified in category 7 (see [23] above) that an error of law may arise where there had been no evidence to support a finding of fact, but ZWA's contentions do not establish that any of the findings of which she complains had no evidence whatsoever to support them. Prendergast also held that an error of law may arise where the decision made was so unreasonable that no reasonable decision-maker would have made it, but ZWA has fallen well short of establishing that degree of unreasonableness. 2. Moreover, there was no indication from the material before us that the Tribunal had denied procedural fairness to ZWA. She appears to have been afforded an adequate opportunity to present her case, to respond to assertions and suggestions contrary to her position and generally to be heard. 3. For those reasons we concluded that neither ZWA's grounds of appeal nor her written or oral submissions clearly identified any errors of law. So, as was done in Cominos and in some recent guardianship appeals before the Appeal Panel, such as ZAN v The Public Guardian [2016] NSWCATAP 20 at [25]-[27] and ZVS v ZVT [2022] NSWCATAP 71 at [24]-[27], we endeavoured by discussion with ZWA to assist her to clarify the grounds of her appeal and in particular to identify any alleged errors of law. Potential errors of law identified by us 1. On the basis of that discussion with ZWA and our consideration of her case on appeal as a whole and of the Tribunal's reasons for decision, the potential errors of law which we identified as requiring further consideration were these: 1. whether, in determining the identity of the guardian, the Tribunal had failed to take into account mandatory considerations (Prendergast category 5); and 2. whether the Tribunal failed to reach a decision on the identity of the guardian correctly in accordance with the guardianship legislation by identifying the wrong issue or asking the wrong question (Prendergast category 2). 1. Both those potential errors of law relate to the Tribunal's decision to appoint ZWD as guardian and its refusal to appoint ZWA. Appointment of guardian: statutory provisions 1. Many court and tribunal decisions have considered the statutory criteria which the Tribunal must apply in determining whether a particular person should be appointed under as a guardian under Division 3 of Part 3 of the Guardianship Act 1987 ("the Guardianship Act") and the way in which those criteria should be applied. As was recognised in the authorities discussed in the decision of the Guardianship Division in WPC [2020] NSWCATGD 83 at [42], those criteria appear in 4 distinct provisions: sections 4, 15 (3), 16 (1) and 17 (1). For convenience the purpose of each provision and its terms are discussed below in the order which seems most appropriate for the purposes of the present analysis. 2. The starting point is section 16 (1) which deals with the basic requirements of such an order. Relevantly, paragraph (a) of the sub-section is in the following terms: 16 Guardianship orders (1)A guardianship order: (a)shall appoint a person who is of or above the age of 18 years as the guardian of the person of the person under guardianship. 1. Section 17 is headed "Guardians" and sub-section (1) is expressed as a prohibition; that is, it sets out the grounds on which a person must not be appointed as a guardian. It provides that: (1) A person shall not be appointed as the guardian of a person under guardianship unless the Tribunal is satisfied that: (a) the personality of the proposed guardian is generally compatible with that of the person under guardianship, (b) there is no undue conflict between the interests (particularly, the financial interests) of the proposed guardian and those of the person under guardianship, and (c) the proposed guardian is both willing and able to exercise the functions conferred or imposed by the proposed guardianship order. (Our emphasis) 1. Section 15 (3) is significant. It prohibits the appointment of the Public Guardian, but only in certain circumstances. It is in the following terms: (3)A continuing guardianship order appointing the Public Guardian as the guardian of a person under guardianship shall not be made in circumstances in which such an order can be made appointing some other person as the guardian of the person. 1. The fourth provision is section 4, which sets out the "general principles" which must be observed by everyone exercising functions under the Guardianship Act. By operation of the opening words of section 4, everyone undertaking functions under that Act has a duty to apply the principles set out in the section, with respect to people with disabilities. 2. The Tribunal itself, including of course any particular panel of the Guardianship Division, exercises functions under the Act with respect to people with disabilities when, in the course of determining a guardianship application or reviewing a guardianship order, it decides who to appoint as a guardian. 3. The section is in the following terms: 4 General principles It is the duty of everyone exercising functions under this Act with respect to persons who have disabilities to observe the following principles: (a) the welfare and interests of such persons should be given paramount consideration, (b) the freedom of decision and freedom of action of such persons should be restricted as little as possible, (c) such persons should be encouraged, as far as possible, to live a normal life in the community, (d) the views of such persons in relation to the exercise of those functions should be taken into consideration, (e) the importance of preserving the family relationships and the cultural and linguistic environments of such persons should be recognised, (f) such persons should be encouraged, as far as possible, to be self-reliant in matters relating to their personal, domestic and financial affairs, (g) such persons should be protected from neglect, abuse and exploitation, (h) the community should be encouraged to apply and promote these principles. When will a person will be "both willing and able"?: sections 17 (1) and 4 1. Several Court and Tribunal decisions have addressed the issue of the relationship between sections 17 (1) and 4 and in particular how a Tribunal must assess whether a proposed guardian is "both willing and able": the words we have emphasised in citing section 17 above. 2. The starting point in this quest is the requirement of s15 (3) of the Act, that when considering the making of a continuing guardianship order, the Tribunal cannot appoint the Public Guardian in circumstances where an order "can be made" appointing a suitable private person as guardian. 3. What are those circumstances? The preliminary answer is provided by subsection 17(1). It expressly prohibits the appointment of someone as guardian unless the Tribunal is satisfied that person meets the factors in paragraphs (a) and (b) of the subsection and in addition is both willing and able to exercise the functions of the order. 4. In W v G [2003] NSWSC 1170 the Supreme Court of NSW (Windeyer J) analysed the interaction between sections 15 (3) and 17. The Court held that section 15 (3) must be read as requiring that the Public Guardian not be appointed in circumstances in which an order can "properly" be made in favour of another person. That requires not only that that other person be willing, reliable and responsible, but that the appointment will result in the policy considerations and principles set out in the Act being given effect. The question for the relevant Tribunal is not whether the proposed guardian will make a particular decision in the subject person's best interests, but rather whether he or she is able to exercise their decision-making authority in accordance with the principles set out in the Act. 5. That is where section 4 becomes important and this is the crux of the inter-relationship between section 17 (1) (c) and the section 4 principles. 6. It is clear that any Tribunal exercising the function under the Guardianship Act of determining whether a particular private person (that is, a person other than the Public Guardian) should be appointed as guardian must not make an appointment without having taken the following steps by making appropriate findings on the basis of the evidence before it. 1. It must balance the willingness expressed by any person to be appointed as the guardian against their willingness and ability to act in accordance with the principles set out in the Guardianship Act, in particular those set out in section 4, and the likelihood that they will do so: FGE (2) [2012] NSWGT 3 (16 March 2012) at [67] and [71] ("FGE (2)"). In that decision the Guardianship Tribunal noted that the focus should be on the decision-making process and not simply on the substance of any particular decision which might need to be made. We endorse that approach. 2. It must ensure that the proposed guardian is able to demonstrate insight into their proposed role by explaining to the Tribunal their plans as guardian if so appointed and that in that role they will act objectively and in the interests of the subject person, without any conflict with their personal interests. See generally P v D1 & Others [2011] NSWSC 257; 3. It must ensure that the proposed guardian could perform the role of guardian in accordance with the proposed guardianship order and in a manner consistent with section 4 of the Guardianship Act. See for example ZGB v ZGC [2018] NSWCATAP 58 at [64] and [65] ("ZGB"), where the Appeal Panel gave consideration to the relevant principles and concluded that none of the persons seeking appointment in that case could currently perform the role of guardian consistent with the duties imposed by section 4: ".. such as ensuring (that the subject person's) welfare and interests were given paramount consideration whilst recognising the importance of preserving the family relationships." 1. It must make specific findings on these matters on the basis of the evidence before it; and 2. it must demonstrate, by its Reasons for Decision, that its conclusions have been based on all the matters set out above. 1. There is particular importance in the Tribunal complying with those principles where, as in this case, it is faced with a substantial conflict between family members as to the identity of the guardian. The importance of taking into account the section 4 principles 1. Of particular importance is the need for the Tribunal to demonstrate that it has taken into account the section 4 principles: see CS and MY v The Guardianship Tribunal and Public Guardian (Unreported, Supreme Court NSW, Windeyer J., 29.11.99); FGE (2) at [67] and [71]; P v NSW Trustee and Guardian [2015] NSWSC 579 ("P v NSW Trustee"); WL v NSW Trustee and Guardian (External) [2011] NSWADTAP 22 ("WL"); and ZGB. 2. In P v NSW Trustee, the Court was considering the role which the general principles play in the Tribunal's exercise of its discretion under section 25G of the Guardianship Act to make a financial management order, but the principles he stated are equally applicable to a decision to appoint a guardian. The Court said, at [311]: "Any attempt to summarise the elements of a finding as to [that issue] without consulting the terms of the legislation (including each of the paragraphs of section 4…) is likely to be imperfect." (Our emphasis) 1. The Court went on to confirm that: "Section 4…informs the operation of the whole Act." 1. WL was heard by the Administrative Decisions Tribunal Appeal Panel. The Appeal Panel observed, at [71]: "Section 4 is more than an objects clause. Objects clauses articulate the intended purpose of the legislation and regard may be had to them to resolve uncertainty or ambiguity when interpreting and applying the remainder of the legislation: Minister for Urban Affairs and Planning v Rosemount Estates Pty Ltd (unreported, 90640127, 14 August 1996). The 'principles clause' in the Guardianship Act not only articulates the intended objects of the Act, it requires any person exercising functions under that Act, to observe those principles." 1. It is clear that a tribunal considering the suitability of a particular person for appointment as guardian needs to demonstrate in its reasons for decision that it has done so by reference to the section 4 principles. There must be some "matching" of the Tribunal's findings as to suitability to specific, identified principles included in section 4. In WL at [75] the Appeal Panel of the ADT confirmed what might be regarded as ground rules for the contents of a tribunal's reasons for decision in such a matter. It said: "(W)hen making a decision about whether to … exercise any … function under the Guardianship Act , a decision maker is bound to observe any relevant principle in s 4. The decision maker may demonstrate that he or she has observed those principles either by referring to them expressly or by writing reasons for decision which demonstrate that all relevant principles have been observed. 1. WL has been followed in many subsequent decisions, including those of the Administrative and Equal Opportunity Division of this Tribunal in reviewing decisions made by appointed guardians: see for example DCA v Public Guardian [2017] NSWCATAD 364 at [51] – [56]. Consideration 1. Guardianship hearings, particularly those involving families who are in conflict, are not easy. The atmosphere in the hearing itself is often fractious and antagonistic. That may well have been the case here and in any case it is clear that the Tribunal had to make its decisions against the unfortunate but regrettably common background of damaged family relationships and competing claims and views. We take all those matters into account. 2. However if we find that, in reaching its decision, the Tribunal fell into legal error; that is, that its decision was tainted by an error of law, the appeal must be allowed. Errors of law 1. For the reasons set out below, we have concluded that the Tribunal did fall into legal error, in that it has failed to take into account mandatory considerations (Prendergast category 5); and failed to reach a decision on the identity of the guardian correctly in accordance with the guardianship legislation by identifying the wrong issue or asking the wrong question (Prendergast category 2). 2. These errors of law arose from: 1. the Tribunal's incomplete compliance with the principles and procedures enunciated in P v NSW Trustee, WL and related authorities, as noted above. In determining who to appoint as ZWB's guardian the Tribunal failed to identify adequately the section 4 principles on which it relied and it failed to demonstrate that it had considered each relevant principle; and 2. the method used by the Tribunal to select and appoint a guardian. It conducted what was essentially a dispute-resolution exercise in an attempt to identify a consensus or failing that a majority view within the family as to who should be appointed. The choice of that path led the Tribunal to overlook the appropriate statutory criteria for the appointment of a guardian; in particular it failed to consider appropriately the criteria reflected by the section 4 principles. 3. Furthermore, because the Tribunal approached the issue as a dispute-resolution exercise and a search for consensus or a majority view, it dismissed the possibility of the appointment of the Public Guardian on the basis that that was opposed by most if not all family members. It should instead have proceeded by enquiring whether there was any private person who was willing and "able" to act as guardian within the extended meaning of "able" explained above and if there was such a person by appointing that person. If there was no such person then, given the Tribunal's finding that a guardianship order should be made, it should have appointed the Public Guardian. Errors relating to the section 4 principles 1. The principles relating to the application of the section 4 principles, arising principally from the decisions in P v NSW Trustee, WL and subsequent cases, have been discussed in detail above. 2. The principal source of the Tribunal's reasoning on this central issue (and the only source made available for the appeal hearing) was the Reasons. The existence of the principles and the need to take them into account is referred to generally, but not with any particularity, at paragraph [37] of the Reasons. There are some other references to some of those principles at [41] where there is mention of the importance of preserving family relationships generally and the best interests of the subject person (ZWB). 3. But this level of reference to the principles is inadequate to demonstrate the Tribunal's compliance with section 4 (by considering all principles which were relevant) and its compliance with the principles explained above deriving from P v NSW Trustee and WL. 4. The references to the principles at [41] of the Reasons are to principles which any appointed guardian "must recognise the importance of". But the focus of the obligation enunciated in P v NSW Trustee and WL is the obligation of the Tribunal itself. The Tribunal, in determining who to appoint as guardian, must itself demonstrate that it has identified the section 4 principles and then taken them into account. 5. The Reasons also do mention some of the section 4 principles. For example at [37] they note that a nominee for appointment as guardian must demonstrate his or her ability to exercise functions of a guardian as set out in section, at [41] there is a reference to the need to recognise the importance of preserving "the family relationships" and at [44] there is a conclusion that ZWA would not be able to do this. At [50] there is brief mention of ZWB's "best interests" but only in reporting what family members had asserted about them. At [41] and [44] the Tribunal does make general statements that it: "…has taken into account all relevant factors in making its decision as to who should be…guardian…" (Reasons [41]; and "The Tribunal was not satisfied that (ZWA) would be able to preserve family relationships for her mother" (Reasons [44]). 1. But these references and the Reasons generally demonstrate that the Tribunal has failed to undertake the "matching" exercise described at [55] above or to do what was prescribed in the WL case. That is, it has not expressly referred to the section 4 principles which are relevant to its choice of a guardian and has not provided reasons which demonstrate its observance of those principles. Errors in methodology for selecting the guardian: the "dispute resolution" route 1. On any fair reading the Reasons do not reflect the Tribunal's assessment of all section 4 principles applicable to the key issue (who to appoint as guardian) or conclusions as to how application of those principles would lead to the appointment of ZWD. As the Reasons demonstrate, the Tribunal chose a different course: it erred in treating the process of selection of the guardian as a dispute-resolution process, rather than one which is to be carried out by consideration and assessment of the evidence and the application of provisions of the Guardianship Act relating to the suitability of persons for appointment as guardian; in particular, sections 4, 15 (3) and 17 (1). 2. The key indication of the technique being adopted is in the heading at paragraph [50] which is "Settlement". That gives the flavour of what is to follow. The Tribunal itself clearly explains the process it will adopt to select a guardian, in the following terms: "[50] Settlement. The Tribunal may, where it considers ( sic.) appropriate, use resolution processes to bring the parties to a settlement. There was significant conflict in this matter however the Tribunal was able to assist the parties to reach agreement, although it was not each party's preferred outcome…" 1. In our view, in the circumstances and in light of the statutory provisions and law discussed above the choice of a guardian by the Tribunal was not an appropriate matter for dispute resolution, at least in the absence of the Tribunal's application of the relevant statutory provisions: here, at least sections 4, 15 (3) and 17 (1) of the Guardianship Act. Nor was it an appropriate use of the Tribunal's dispute-resolution powers in section 37 of the NCAT Act, at least in circumstances where the Tribunal has not given effect to specific statutory provisions relating to the issue at hand. 2. An approach to the issue of who to appoint as a guardian based on an attempt to align the appointment with consensus of views of the participants (whether or not they are family members) is inappropriate and legally incorrect, in that it involves a failure to reach a decision correctly in accordance with the guardianship legislation, a misapplication of the relevant statutory provisions, a failure to take into account mandatory considerations, identification of the wrong issue and asking the wrong question. 3. The appellant ZWA perceived the manner of selection of the guardian as involving a "vote". Whether or not that was an entirely accurate portrayal of what occurred, such a characterisation by a party to the proceedings supports our description of the method of resolution of the key issues as dispute resolution and an attempt to identify a consensus. 4. The choice of a person and their appointment as a guardian must accord with the law. So, it must be capable of justification by reference to the section 4 principles and the related statutory provisions discussed above, as P v NSW Trustee, WL and the later cases have made clear. 5. In the Tribunal's efforts to decide who should be guardian in a difficult family conflict situation, it adopted an approach designed to resolve disputes between the family members. In itself that was understandable and admirable. But that is not the way which the Guardianship Act and the leading cases on it provide for the selection and appointment of a guardian to be undertaken. 6. What is required is a choice of a guardian based on the Tribunal's determination of the issue according to law; that is, a determination based on the applicable statutory provisions, in particular but not restricted to the section 4 principles. The decision not to appoint the Public Guardian 1. The methodology adopted by the Tribunal removed the possibility of the appointment of the Public Guardian, even for a short term, to enable some important decisions to be made for ZWB against the background of family discord. As recorded in the Reasons at [50], the Tribunal had put to family members that the appointment of the Public Guardian …might be the only viable option, especially considering the medical reports (sic) reference to family conflict impeding proper decision-making, but this option was refuted in favour of the appointment of a family member which, it was insisted, was in (ZWB)'s best interests. The Tribunal also acknowledges that the appointment of a family member takes into account (ZWB)'s wishes." 1. It is not unknown for the appointment of an independent guardian (such as the Public Guardian) for a family member with a disability, even an appointment for a short term, to have the practical effect of encouraging the family members who are in discord to resolve their differences, so that decisions can be made for the disabled person "within the family" and without further need for external intervention. 2. In those circumstances, at the least, the appointment of a Public Guardian could well be the one which best ensures the preservation of the welfare and interests of the person with a disability. 3. In this case, the family members' objection to the appointment of the Public Guardian seems to have been based on their belief that ZWB would not communicate with the Public Guardian's representative: see Reasons at [49]. But direct communication between a disabled person and the Public Guardian is not essential on a continuous basis or in every case, because in practice the Public Guardian's officers will communicate about their decision-making with family members who are involved in providing care or support to the disabled person. 4. In noting these matters we intend no criticism of the Tribunal, nor do we intend to convey that the Public Guardian should have been appointed in this case. We merely note that in this case the Tribunal, instead of continuing to explore whether the Public Guardian could be appointed in accordance with the relevant statutory provisions and the decided law, adopted the "dispute resolution" or consensus route in order to identify the guardian. Conclusion as to errors of law 1. It follows that, because the Tribunal fell into legal error, we should allow the appeal and should remit the matter to the Guardianship Division for re-hearing by a differently constituted tribunal. 2. As the appeal is to be allowed we do not need to determine the application for leave to appeal. Conclusions and orders 1. We should order that the appeal be allowed and the matter remitted to the Guardianship Division for re-hearing. 2. Additionally, because it is important to ensure protection of ZWB's welfare and interests and to avoid any uncertainty as to who has authority to make important life decisions for her pending the re-hearing, the Tribunal's orders of 12 August 2021, including of course the appointment of ZWD as guardian, should continue in force until further order of the Tribunal. 3. Our orders are therefore as follows. Orders 1. The appeal is allowed. 2. The guardianship application is remitted to the Guardianship Division for re-hearing by a differently constituted tribunal. 3. The guardianship orders made on 12 August 2021 are to continue in force until further order of 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: 13 April 2022