Civil and Administrative Tribunal New South Wales Medium Neutral Citation: ZWQ v ZWS [2022] NSWCATAP 277 Hearing dates: 8 July 2022 Date of orders: 23 August 2022 Decision date: 23 August 2022 Jurisdiction: Appeal Panel Before: A Britton, Deputy President C Fougere, Principal Member I Beale, Senior Member Decision: (1) The application for an extension of time in which to appeal is dismissed. (2) The appeal is dismissed. Catchwords: TRIBUNALS – NSW Civil and Administrative Tribunal – joinder of parties to proceedings to review the revocation of an enduring power of attorney under the Powers of Attorney Act 2003 (NSW) APPEALS – Procedure – Time limits – Extension of time to appeal Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Guardianship Act 1987 (NSW) Interpretation Act 1987 (NSW) Powers of Attorney Act 2003 (NSW) Cases Cited: Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 ICW [2017] NSWCATGD 43 Commissioner of Police, NSW Police Force v Fine [2014] NSWCA 327 Smith v Smith [2017] NSWSC 408 P v NSW Trustee and Guardian [2015] NSWSC 579 ZBC v ZBD [2016] NSWCATAP 264 Texts Cited: None cited Category: Principal judgment Parties: ZXQ (Appellant) ZWS (First Respondent) NSW Trustee and Guardian (Second Respondent) ZWR (Third Respondent) ZWT (Fourth Respondent) Representation: Solicitors M Miceli (Appellant) Somerville Legal (First and Fourth Respondents) File Number(s): 2022/00061734 Publication restriction: Pursuant to s 65 of the Civil and Administrative Tribunal Act 2013 (NSW), the publication of the name of any of the parties or other people referred to in this decision including the publication of any information, picture or other material that identifies them, or is likely to lead to their identification, is prohibited. Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Guardianship Division Date of Decision: 07 October 2021 Before: V Massey, General Member File Number(s): 2020/00249461 Decisions under appeal REASONS FOR DECISION 1. On 8 July 2021, following a hearing, we decided to refuse the application made by the appellant to appeal, out-of-time, the decision made by the Guardianship Division of the NSW Civil and Administrative Tribunal (NCAT) to refuse to join the appellant as a party to proceedings. Those proceedings concerned the purported revocation of an enduring power of attorney by the appellant's wife. 2. These are the reasons for that decision. Background to Joinder Decision 1. The appellant's 80-year-old wife (the Principal) has been diagnosed with dementia. She has been living in a residential aged care facility since April 2021. 2. In July 2020, the Principal appointed her two sons as her joint attorneys under an enduring power of attorney (the EPoA). The appellant applied to NCAT for review of the EPoA and asked the Tribunal to make guardianship and financial management orders under the Guardianship Act 1987 (NSW). In addition, the appellant proposed that he be appointed as the guardian and manager for the Principal. Following a hearing on 9 October 2020, the Tribunal dismissed that application. 3. On 15 November 2020, the Principal purportedly revoked the EPoA. 4. On 5 August 2021, one of the Principal's sons, ZWS, the first respondent to this appeal, applied to NCAT for review of the revocation of the EPoA (the Revocation application). 5. Three weeks later, the appellant applied to NCAT for review of the making of the EPoA (the EPoA application). [1] In addition, on the same day the appellant lodged an application to be joined as a party to the proceedings to determine the Revocation application (the Revocation proceedings). [2] Being the applicant, the appellant was a party to the proceedings to determine the EPoA application (the EPoA proceedings) but not the Revocation proceedings: s 35(2) of the Powers of Attorney Act 2003 (NSW) (PoA Act). 6. On 17 September 2021, the Tribunal refused the appellant's application to be joined to the Revocation proceedings. On 7 October 2022, the appellant made a further application to be joined to those proceedings. On 7 October 2021, following a hearing, the Tribunal refused that application (the Joinder Decision). In addition, the Tribunal made an order under s 45 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) that the Principal be separately represented in both the EPoA and Revocation proceedings. 7. On 8 November 2021, the Tribunal heard concurrently the applications for review of the making of, and the revoking of, the EPoA. The Tribunal decided that it was appropriate to review the making of, and the revoking of the EPoA, under s 36(1) of the PoA Act. In each proceeding the Tribunal made identical orders: 1. To not make an order under s 36(4) of the PoA Act 2. To treat the application for review of the making (and revocation) of the EPoA as an application for a financial management order 3. To order that the estate of the Principal be subject to management under the NSW Trustee and Guardian Act 2009 (NSW) 4. To commit the management of the Principal's estate to the management of the NSW Trustee and Guardian. Scope of the appeal 1. The appellant appeals from the Joinder decision and the decision made in the EPoA proceedings. Each are "internally appealable decisions". [3] Being the applicant in each of the proceedings, the appellant is entitled to bring an appeal against those decisions [4] . 2. However, the appellant was not a party to the Revocation proceedings and therefore, is not entitled to appeal the decision made in those proceedings. As a consequence, even if the appeal brought against the EPoA decision were to be upheld, it would be a pyrrhic victory as the identical Revocation decision would continue to stand. For this reason, the appeal brought by the appellant against the Joinder decision is of particular significance. As he puts it, unless he is joined as a party to the Revocation proceedings and gains an entitlement to appeal the decision made in those proceedings, he will be "check-mated". Principles governing exercise of discretion to extend time 1. Section 41 of NCAT Act permits the Tribunal, of its own motion or on application by any person, to extend the period of time for lodging a notice of appeal. While unfettered, the discretion conferred by s 41 of the NCAT Act must be exercised judicially having regard to s 36 of that Act and the instruction "to facilitate the just, quick and cheap resolution of the real issues in the proceedings": Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 (Jackson) at [18]. 2. In Jackson, the Appeal Panel identified at [22] the considerations generally relevant to the question of whether an application to extend time to lodge a notice of appeal should be granted: 1. The length of the delay; 2. The reason for the delay; 3. The appellant's prospects of success, that is, usually, whether the applicant has a fairly arguable case; and 4. The extent of any prejudice suffered by the respondent (to the appeal). 1. Referring to the third of these considerations, the appellant's prospects of success, the Appeal Panel stated at [22(4)]: "[I]t may be appropriate to go further into the merits of an appeal if the explanation for the delay is less than satisfactory … and, in such a case, it may be relevant whether the appellant seeking an extension of time can show that his or her case has more substantial merit than merely being fairly arguable [citations omitted]". Length of the delay 1. An "internal appeal" against an internally appealable decision must be lodged within 28 days from the day on which the appellant was notified of the decision or given reasons for the decision (whichever is the later): reg 25(4)(c) of the Civil and Administrative Tribunal Rules 2014 (NSW) (the Rules). 2. The appellant was given notice of the Joinder Decision on 7 October 2021 and given reasons for that decision on 8 November 2021. The appellant did not lodge the notice of appeal in respect of that decision until 3 March 2022, 87 days after the statutory deadline for lodging the appeal had passed. 3. It follows that the appellant is not entitled to appeal the Joinder decision unless the discretion in s 41 of the NCAT Act to extend the time for lodging the notice of appeal is exercised. Explanation for the delay 1. In an affidavit dated 7 July 2022, the solicitor for the appellant (the solicitor) explained the reason the notice of appeal against the Joinder decision was lodged out-of-time. 2. Acting on instructions received four days after the Joinder Decision was made, the solicitor lodged a Notice of Appeal against that decision. 3. On 3 November 2021, the solicitor unsuccessfully applied for the hearing in the EPoA and Revocation proceedings listed for 8 November 2021 to be adjourned. The Tribunal refused that application. 4. On 26 November 2021, acting on instructions, the solicitor withdrew the appeal against the Joinder Decision. The solicitor stated that he had advised the appellant that the appeal was of no utility because the Substantive proceedings had concluded. He stated that he now acknowledges that that advice was incorrect. 5. The solicitor stated that it was not until 24 December 2021, when he lodged the appeal against the EPoA decision, that he realised that, because the appellant was not entitled to appeal the Revocation Decision, the appellant was "checkmated". 6. With respect to the delay after 24 December 2021, the solicitor stated: "Can I explain the further 2-month delay [in lodging the appeal], regrettably no other than what has happened generally in society." Prospects of success 1. In the proposed grounds of appeal, the appellant contends that: 1. the Tribunal erroneously found that the "principal reason" the appellant sought to be joined to the EPoA proceedings was to enable him to appeal from any decision made in those proceedings. Further, in exercising the discretion to join the appellant to those proceedings, the Tribunal focussed on that finding and failed to consider the totality of the evidence, including the evidence of his "concern for the welfare" of the Principal; 2. the Tribunal made an "irrational finding", namely that the interests of the appellant would not be affected by any decision made in the EPoA proceedings; 3. in making the Joinder decision, the Tribunal failed to have regard to the views of the Principal. Tribunal's power to join a party to proceedings 1. The PoA Act and the NCAT Act each contain provisions which give the Tribunal power to join a person to proceedings. 2. Section 35 of the PoA Act states: 35 Who are interested persons and parties in relation to applications (1) Interested persons who may make applications Each of the following persons is an interested person in relation to the making of applications under this Division in respect of a reviewable power of attorney: (a) an attorney (including an attorney whose appointment has been purportedly revoked), (b) the principal, (c) any person who is: (i) a guardian of the principal (whether under the Guardianship Act 1987 or any other Act or law), or (ii) an enduring guardian of the principal under the Guardianship Act 1987, (d) any other person who, in the opinion of the review tribunal, has a proper interest in the proceedings or a genuine concern for the welfare of the principal. … (3) Joinder of parties A review tribunal may, on its own initiative or on the application of an interested person, decide to join, as a party to any proceedings before the tribunal under this Division, any person who, in the opinion of the tribunal, should be a party to the proceedings (whether because of the person's concern for the welfare of the principal or for any other reason). … 1. Section 44 (1) of the NCAT Act provides: 44 Parties and intervention (1) The Tribunal may order that a person be joined as a party to proceedings if the Tribunal considers that the person should be joined as a party. (2) The Tribunal may order that a person be removed as a party to proceedings if the Tribunal considers that the person has— (a) been improperly or unnecessarily joined, or (b) ceased to be a proper or necessary party. … 1. Contained in Part 4 of the NCAT Act, s 44 is subject to the PoA Act: s 35 of the NCAT Act. 2. Where, as here, the relevant Division Schedule makes special provision for the practice and procedure to be followed in connection with certain proceedings allocated to the Division for determination, the provisions of that Schedule prevail to the extent of any inconsistency with the provisions of Part 4: s 17(3) of the NCAT Act. 3. Clause 7 of Sch 6 (the Division Schedule for proceedings allocated to the Guardianship Division) to the NCAT Act states: 7 Tribunal may join parties (1) The Tribunal may make an order under section 44(1) of this Act joining a person as a party to proceedings for the exercise of a Division function if, in the opinion of the Tribunal, the person should be a party to the proceedings (whether because of the person's concern for the welfare of the person the subject of the proceedings or for any other reason). … (3) This clause does not limit section 35 (Who are interested persons and parties in relation to applications) of the Powers of Attorney Act 2003 in its application to the Tribunal. 1. Each of the above provisions gives the Tribunal a broad discretion to join a person to proceedings. Clause 7 of Sch 6 to the NCAT Act and s 35 of the PoA Act are materially identical and permit the Tribunal to join a person to proceedings if, in the opinion of the Tribunal, the person should be a party to the proceedings (whether because of the person's concern for the welfare of the person the subject of the proceedings or for any other reason). The "wrong question" ground 1. The appellant contends: 1. In circumstances where the appellant had made clear that he was concerned for his wife's well-being, it was not open to the Tribunal to find that the "principal reason" he had applied to be joined as a party to the Revocation proceedings was to enable him to appeal from any decision made in those proceedings (the impugned finding). 2. By focussing on the "principal reason" for applying to be joined as a party to the Joinder proceedings, the Tribunal asked the wrong question. The appellant contends that the text of s 35(1)(d) of the PoA Act makes clear that the power to join a person to proceedings is enlivened where the joinder applicant has "concern for the welfare of the person the subject of the proceedings". The impugned finding 1. In support of the contention that it was not open to the Tribunal to make the impugned finding, the appellant points to the following passage from the Tribunal's reasons for decision, 8 November 2021 (the Reasons): 50 I am satisfied by his evidence today that, whilst [the appellant] expressed a concern for his wife's welfare, his principal reason for seeking to be joined as a party to these proceedings is that he wants to be a party so as to have the right to appeal any decision made by the Tribunal. He said that was the principal reason for him seeking to be joined as a party. He described the right of appeal "… one right I should be able to enjoy…". (emphasis added) 1. The appellant argues that in making the impugned finding the Tribunal failed to take into account the other reasons he gave for seeking to be joined to the proceedings which the Tribunal summarised at [28]: 28 [The appellant] submitted that he should be joined as a party for the following reasons: • He was part and parcel of the revocation, being there as a witness; and • He knew the circumstances surrounding the revocation and the reasons and discussed them with the principal, his wife; and • He is the husband, is involved with it and therefore should be joined as a party; and • He should have the same rights as anybody else; and • He and [the Principal] have been married for 55 years and he is interested in her welfare; and • Why he should have fettered rights is not plausible. 1. The appellant contends that the impugned finding unduly focussed on the answers given by the appellant to the Tribunal following the "nudge" given by the appellant's solicitor: SOLICITOR: … [Appellant], the point I'd like you to make is that if you're refused the right to become a party, then you don't have any other further rights with regard to the decision. And that's the most important point we wanted to make, any future right of appeal that may arise from the decision. [THE APPELLANT]: Thank you, [solicitor]. So my point is I don't have any future rights under any decision that might be made at the review of the revocation. … SENIOR MEMBER MASSEY: What's your purpose in seeking to be a party? What are you seeking from that application? [THE APPELLANT]: Well, I'm simply seeking to be a, to join the party and have the rights that I just mentioned, the right of appeal. SENIOR MEMBER MASSEY: Yes, I understand that, but - - - [THE APPELLANT]: Okay. Well, that, that should be, that should be the reason. As I said, I was an integral party to my wife deciding to draw up the revocation. I witnessed it. We were both convalescing at home. There were many circumstances surrounding it. As my assistant [solicitor] said, I do have one right which I should be able to enjoy, and that was the right of appeal and therefore I would be happy to join the hearing regarding the revocation, the review of the revocation of the power of attorney. Tcpt, 8 November 2021, p 6(32) - p 7(8). Consideration 1. Putting to one side whether, as asserted by the appellant, the challenge to the impugned finding raises a question of law, the simple answer to that challenge is that the impugned finding was open to the Tribunal on the available material. 2. First, the appellant's statement, referred to in the extract of the transcript reproduced at [35] above, was not the sole occasion the appellant stated during the hearing that attaining the right to appeal was a reason he sought to be joined as a party to the Revocation proceedings. Later, when invited by the Tribunal to make any further comments in support of his application to be joined, the appellant said: [THE APPELLANT]: Well, the principal reason is the situation regarding an appeal from the review of the revocation of the power of attorney. You know, you've ... (0.21.40) my, my abilities, but I would like to have the full ability of a member at the hearing. (Emphasis added) Tcpt, 8 November 2021, p 12, (14)-(17)) 1. Second, to read the impugned finding as demonstrating that the Tribunal ignored the evidence of the appellant's concern for his wife requires the passage containing that finding to be read in isolation from other parts of the reasons to which it is related. The authorities have consistently cautioned against adopting that approach and have emphasised that reasons for decision must be read fairly and as a whole. [5] 2. At [28], the Tribunal noted that one of the several reasons given by the appellant for applying to be joined as a party was concern for his wife. In the opening sentence of [53], the Tribunal refers again to the appellant's "concern for his wife's welfare". At [54] the Tribunal made the unremarkable statement that concern for the Principal "of itself does not lead to the conclusion that the person [seeking to be joined] should be a party". Read fairly and as a whole, it is implicit in the Reasons that the Tribunal accepted that the appellant was concerned for the welfare of his wife. 3. The contention that the impugned finding was not open to the Tribunal is not fairly arguable. Wrong question 1. The appellant contends that whether his wish to obtain the right to appeal any decision made in the Revocation proceedings was the principal reason he had applied to be joined to those proceedings was irrelevant to the proper exercise of the discretion conferred by s 35(3) of the PoA Act. Once satisfied that he had a genuine concern for the welfare of his wife, the Tribunal was required to consider whether to exercise the discretion to join him to the proceedings. 2. The appellant contends that the power conferred by s 35(3) of the PoA Act must be read with s 35(1) of that Act which permits an "interested person" [6] to make an application for review of an EPoA. It follows that the Tribunal was required: 1. to ask whether the appellant was an interested person who had a genuine concern for the welfare of the Principal; 2. if the answer to that question was "yes", to consider whether the discretion to join the appellant should be exercised. Instead, contends the appellant, the Tribunal adopted the impermissible approach of focussing on the principal reason he had for applying to be joined. The principal reason a joinder applicant seeks to be joined is irrelevant to the question posed by s 35(3) of the PoA Act. 1. The appellant contends that there was ample evidence before the Tribunal to support a finding that he had both a "genuine concern" for his wife within the meaning adopted by the Tribunal in ICW [2017] NSWCATGD 43 at [55] and a "proper interest" in the Revocation proceedings. Reasons for Decision 1. Before addressing the appellant's submission, it is useful to summarise the reasons given by the Tribunal for refusing to join the appellant to the Revocation proceedings. The Tribunal: 1. noted that the appellant gave several reasons for applying to be joined as a party to the Revocation proceedings: at [28] 2. found that the principal reason the appellant sought to be joined as a party to those proceedings was that he "wants to be a party so as to have the right to appeal any decision made by the Tribunal": at [50] 3. noted that while a non-party, the appellant would nonetheless be entitled to attend the hearing and, being the witness to the purported revocation of the EPoA, "would be expected to give evidence and he could make written and or oral submissions": at [29] 4. acknowledged that while parties to proceedings have "specific rights", nonetheless stated that the general practice of the Tribunal is to extend some of those rights to non-parties, for example, to receive documentation, to be given the opportunity to make submissions, and to give evidence: at [44], [45] 5. noted that the Principal said in the hearing 'she agreed her husband should be a party because he is her husband' and stated "I must consider that view": at [36], [49], 6. observed that, in contrast with proceedings under the Guardianship Act, a spouse is not automatically a party to proceedings for review of an EPoA under the PoA Act: at [55], [56] 7. after referring to s 44 of the NCAT and cl 7 of Sch 6 of that Act, stated "the Tribunal will need to be satisfied that joinder is justified in all the circumstances. In determining this question, the Tribunal can rely on the person's concern for the welfare of the Principal, but can also make a joinder order for any other reason.": at [42] 8. observed that "a finding that the person seeking to be joined as a party has a concern for the welfare of the Principal does not of itself lead to the conclusion that the person should be a party": at [54] 9. noted that if she were dissatisfied with the decision of the Tribunal, the Principal would have a right of appeal: at [57] 10. found that the appellant's interests will not be affected by the outcome of the Joinder proceedings: at [58] 11. noted that in the Revocation proceedings the appellant will be able to participate, to give evidence, to continue be advised and assisted by his lawyer and, unless the Tribunal rules otherwise, make written and oral submissions: at [59]. 12. stated "for these reasons" the appellant's request to be joined was refused: at [60]. Consideration 1. The contention that in refusing to join the appellant to the Revocation proceedings, the Tribunal asked the wrong question is not fairly arguable for the following reasons. 2. First, the argument advanced by the appellant requires s 35(3) of the PoA Act to be read as requiring the Tribunal, once satisfied that the joinder applicant has a "genuine concern" for the Principal, to exercise the discretion to join a person as a party to proceedings. The use of the word "may" in s 35(3) — "a review tribunal may … on the application of an interested person, decide to join, as a party to any proceedings … any person who, in the opinion of the tribunal, should be a party to the proceedings (whether because of the person's concern for the welfare of the principal or for any other reason)" — makes plain that the Tribunal is not obliged to exercise that discretion, even if satisfied that the person has a "genuine concern for the welfare of the principal". Neither the text, context nor purpose of s 35(3) supports the proposition that the word "may" as used in s 35(3) bears a different meaning to that given by s 9 of the Interpretation Act 1987 (NSW): "In any Act … the word "may", if used to confer a power, indicates that the power may be exercised or not, at discretion". 3. Second, the appellant's contention that the Tribunal determined whether to exercise the discretion to join the appellant solely on the basis of the impugned finding must be rejected. At [54] the Tribunal correctly stated that concern for the welfare of the principal "does not of itself lead to the conclusion that the person should be a party". The Tribunal went on to identify several factors which, in its view, weighed against the exercise of that discretion, including that the appellant would have an opportunity to participate in the Revocation Proceedings and to give evidence about and make submissions in relation to the revocation of the EPoA and, further, that the wife as a party had a right to appeal any decision made in those proceedings. The Tribunal's approach of identifying the factors which weighed for and against the exercise of the discretion and then balancing those factors was permitted by s 35(3) of the PoA Act and entirely orthodox. Ground 2: the "irrational finding" 1. The appellant contends that the finding made by the Tribunal at [58] that "his interests would not be affected by the outcome" of the Revocation proceedings was "irrational". He contends that it is "inconceivable" that he did not have a proper interest in those proceedings in circumstances where he had a long marriage and held joint assets with the person the subject of those proceedings. 2. Citing Commissioner of Police, NSW Police Force v Fine [2014] NSWCA 327 (Fine) at [41], the appellant argues that the Tribunal was in error in failing to recognise that he had an interest in the Revocation proceedings. 3. In Fine, the Court of Appeal considered the operation of s 44(1) of the NCAT Act which provides that "the Tribunal may order that a person be joined as a party to proceedings if the Tribunal considers that the person should be joined as a party". The Court of Appeal stated that that power should be read in conformity with s 44(2) which provides for the removal of a party if "the person has been improperly or unnecessarily joined or ceased to be a proper or necessary party": at [38]. The Court of Appeal went on to state that a person who is a "proper or necessary party" ought to be joined to the proceedings: at [38]. [7] Consideration 1. For current purposes we will assume but not decide that s 44(1) of the NCAT Act is not inconsistent with cl 7 of Sch 6 to the NCAT Act and s 35(3) of the PoA Act and should be applied. 2. As the appellant correctly points out, Fine is authority for the proposition that a party whose interests are affected by the decision would usually be a proper party to the proceedings in which that decision was made: at [41]. However, it does not follow, as the appellant contends, that the finding made by the Tribunal that he did not have an interest in those proceedings was irrational. 3. In the proceedings below, it was not put to the Tribunal that because he held joint assets with his wife, the appellant had an interest in the Revocation proceedings. That contention was raised for the first time in this appeal. Furthermore, in those proceedings, while one of the arguments the appellant advanced in support of his joinder application was that he was the husband of the Principal, he did not contend that as a consequence he had an interest in the Revocation proceedings. 4. It was not put to the Tribunal that the appellant's interests would be affected by the outcome of the Revocation proceedings. And in this appeal the appellant failed to articulate how, as a consequence of being the husband of, and holding joint assets with, the Principal, his interests might be affected by the outcome of those proceedings. In those circumstances it is not fairly arguable that the finding that the appellant did not have an interest in those proceedings could be characterised as irrational. Ground 3: the appellant contends that the Tribunal failed to have regard to the views of the Principal 1. The appellant contends that the Tribunal was required, but failed, to have regard to the views of the Principal. Despite referring to her view that the appellant should be joined as party to the Revocation proceedings and acknowledging that he must take account of that view (at [36], [49]), the Tribunal went on to refuse to grant his application to be joined. 2. In addition, the appellant contends that the Reasons at [65] (reproduced at [59] below), indicate that the Tribunal had, in effect, found that the Principal lacked capacity to express a view about the joinder application and there was no proper evidentiary basis for that finding. Consideration 1. In contrast to the Guardianship Act [8] , the PoA Act does not expressly require the Tribunal to have regard to the views of the Principal when exercising its functions under that Act [9] . In ZBC v ZBD [2016] NSWCATAP 264 at [101]-[102], the Appeal Panel stated that the Tribunal when reviewing an enduring power of attorney, was not required to consider the principles in s 4 of the Guardianship Act (which include the requirement to have regard to the views of the person with a disability), but nonetheless "best interests considerations" may inform the exercise of the Tribunal's discretion. Arguably, that conclusion is inconsistent with the observations of Lindsay J in Smith v Smith [2017] NSWSC 408 at [87], [90] and P v NSW Trustee and Guardian [2015] NSWSC 579 at [53]. Without considered argument, however, this is not the occasion to determine that issue. We will proceed on the basis that the Tribunal was required to have regard to the views of the Principal in deciding whether to exercise the discretion to join the appellant to the Revocation proceedings. 2. The flaw in the appellant's argument is that it assumes that the Tribunal was not only obliged to consider, but to give effect to, the views of the Principal. 3. The contention that the Tribunal disregarded the Principal's view about the Joinder application because it had formed the view that she lacked capacity to express that view is misconceived. It takes out of context [65] of the Reasons which deals with the separate and discrete question of whether the power to appoint a separate representative for the Principal should be exercised: 65 I was doubtful, after hearing [the appellant's] evidence, that she would be able to give instructions to a legal representative. I must give weight to her view expressed when appointing her sons as her attorneys and the contrary view when she purportedly revoked that appointment just on 4 months later in circumstances that is the subject of intense conflict between her husband and her sons. 1. It is not fairly arguable that the above passage supports the inference the appellant invites us to draw. Should the discretion to extend time to lodge the notice of appeal be exercised? 1. It falls to the appellant to persuade the Appeal Panel that there are proper grounds to grant his request to extend time to lodge the notice of appeal. 2. Time limits are imposed to bring finality to the decision-making process. This is not an absolute value, however. Once the threshold question of an acceptable explanation is resolved, the question must be whether the interests of justice require the discretion to extend time to be exercised. 3. Weighing against the exercise of the discretion to extend time is the length of the delay in lodging the appeal, the failure to adequately explain that delay, the prospects of success of the appeal and the prejudice to the respondent parties. 4. The explanation given for the three-month delay in lodging the appeal is not persuasive. In reaching that conclusion we note that the notice of appeal for which the applicant seeks an extension of time is the second notice lodged by the appellant in respect of the Joinder decision. The first notice of appeal was withdrawn on 26 November 2021. But perhaps of greater significance, as the solicitor for the appellant candidly concedes, is that, after realising that while the joinder decision stood the appellant would effectively be unable to challenge the substantive decision – the decision, to commit the management of the Principal's estate to the NSW Trustee – a further two months lapsed before the appeal was lodged. 5. The appellant requires leave to appeal as the Joinder decision is in the nature of an "interlocutory decision": s 80(2)(a) of the NCAT Act. For the reasons discussed above, we conclude that none of the proposed grounds are fairly arguable. Nor do they raise any issue of principle or question of general public importance which might warrant leave to appeal being granted. 6. Finally, we agree with the appellant's argument that, given the protective nature of the jurisdiction exercised by the Tribunal under the PoA Act, it is inappropriate to speak of the respondents to the appeal having a "decision in their favour" and a "vested right" to retain the benefit of that decision once the period for appeal has expired. [10] Nonetheless, we accept the argument made for the respondent sons that they would suffer some prejudice if the time to appeal is extended. This matter has a protracted history. The family has been in dispute since October 2020 over the management of the Principal's affairs. The continuation of that dispute is likely to place an emotional strain on the sons (and the appellant). 7. However, in our view, of greater significance is the potential prejudice to the Principal. The undated report prepared by the NSW Trustee, filed on 8 July 2022, reveals that the Principal has a debt of about $80,000 owed largely to the care facility where she now resides. Extending time to appeal, with the attendant uncertainty over the management of her affairs, has the potential to prejudice the Principal. 8. Undoubtedly, if the time to appeal is not extended, the appellant will suffer prejudice. His entitlement to appeal the EPoA decision will be of no utility because, whatever the outcome, and we have not considered the merit of that appeal, the substantive decision the appellant seeks to have overturned, that is, the decision to commit the management of the Principal's estate to the NSW Trustee, will be left undisturbed. While this factor favours the appellant's application, we have concluded that it is outweighed by the length of the delay, the failure to demonstrate a fairly arguable case and the potential prejudice to the respondents, in particular the Principal. 9. Leave to extend time to appeal is refused. Orders 1. The application for an extension of time in which to appeal is dismissed. 2. The appeal is dismissed. Endnotes 1. On the application of an "interested person", NCAT may decide to review the making or revocation of a "reviewable power of attorney", or to not carry out such a review: s 36(1) of the Powers of Attorney Act. A "reviewable power of attorney" includes an "enduring power of attorney": PoA Act, ss 33(1), 33(2). An enduring power of attorney is an instrument, "expressed to be given with the intention that it will continue to be effective even if the principal lacks capacity through loss of mental capacity after execution of the instrument": PoA Act s 19(1). 2. PoA Act, s 35(2)(a). 3. NCAT Act, s 32(4). 4. NCAT Act, s 80(1). 5. Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 at [29]; Re Minister for Immigration and Multicultural Affairs, Re; Ex parte Applicant S20/2002; Appellant S106/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 30; 77 ALJR 1165 [147] per Kirby J; Re Maria Politis v Commissioner of Taxation [1988] FCA 739 at [14]; [1988] FCA 446; 20 ATR 108 at 111; New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231 at [77] per Bell P. 6. Section 35(1) of the PoA Act defines an interested person to include a person who "in the opinion of the review tribunal, has a proper interest in the proceedings or a genuine concern for the welfare of the principal". 7. The Court of Appeal in Fine went to state "whether a party ought to be joined, will depend upon the statutory role of the decision-maker, the nature and extent of the review being undertaken, the position or interest of the party to be joined and the circumstances of the case": at [57]. Fine concerned an application for review of an "administratively reviewable decision" under the Administrative Decisions Review Act 1997 (NSW). The Commissioner of Police had brought the application, which resulted in the Liquor and Gaming Authority (the administrator) issuing a long-term banning order (the administratively reviewable decision). 8. Section 4(c) of the Guardianship Act states that it is the duty of anyone exercising functions under that Act, to consider the views of persons who have disabilities. That obligation is reinforced by cl 5(1) of Sch 6 to the NCAT Act, which provides that when exercising its "Division functions for the purposes of the Guardianship Act", the Tribunal is under a duty to observe the principles set out in s 4 of that Act: see P v NSW Trustee and Guardian [2015] NSWSC 579 at [53]-[58], ZBC v ZBD [2016] NSWCATAP 264 at [101], [105]. While the allocated functions of the Tribunal include those allocated under the PoA Act, Sch 6 does not require the Tribunal to observe the principles in s 4 of the Guardianship Act, when exercising its functions under the PoA Act. 9. We note however, that s 36(4) of the PoA Act, provides that when conducting a review of the operation and effect of an enduring power of attorney , the Tribunal may make certain orders if it would "better reflect the wishes of the principal" . 10. See Jackamarra v Krakouer [1998] HCA 27; 195 CLR 516; 153 ALR 276; 72 ALJR 819 (1998) 195 CLR 516 at [4]; Nanschild v Pratt [2011] NSWCA 85 at [39]). I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 August 2022