Civil and Administrative Tribunal New South Wales Medium Neutral Citation: ZVR v NSW Trustee and Guardian [2022] NSWCATAP 349 Hearing dates: On the papers Date of orders: 9 November 2022 Decision date: 09 November 2022 Jurisdiction: Appeal Panel Before: Armstrong J, President A Suthers, Principal Member Decision: 1. A hearing of the appeal is dispensed with, under s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW). 2. Time for lodgment of the Notice of Appeal is extended to the date of lodgment. 3. The appeal is allowed. 4. The decision of the Mental Health Review Tribunal on 1 July 2021 is set aside. Catchwords: APPEALS – designated external appeal – appeal from decision of Mental Health Review Tribunal – failure of Mental Health Review Tribunal to confirm relevant persons notified of application to it – procedural unfairness established due to a combination of factors – possibility of a different outcome Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Guardianship Act 1987 (NSW) Mental Health Act 2007 (NSW) NSW Trustee and Guardian Act 2009 (NSW) Cases Cited: Bungree Aboriginal Association Limited v NSW Registrar of Community Housing [2019] NSWCATAD 268 Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47 Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55 DGM v NSW Trustee and Guardian [2017] NSWCATAP 220 Engelbrecht v Director of Public Prosecutions (NSW) [2016] NSWCA 290 Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 Kioa v West (1985) 159 CLR 550 Ladd v Marshall [1954] 1 WLR 1489 Lettau v Artwork Transport Pty Ltd [2017] NSWCATAP 14 Re Anasis; Ex parte Total Australia Ltd (1985) 11 FCR 127 Ros v Commissioner of Police [2020] NSWCATAP 70 Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128; [2016] NSWCA 88 Squire v Rogers (1979) 27 ALR 330; (1979) 39 FLR 106 Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54 Whall v Stamp [2019] NSWCA 163 Yuen v Thom [2016] NSWCATAP 243 ZVQ v ZVR [2022] NSWCATAP 33 Texts Cited: None cited Category: Principal judgment Parties: ZVR (Appellant) New South Wales Trustee and Guardian (First Respondent) South Eastern Sydney Local Health District (Second Respondent) Representation: Counsel: L Jardim (Appellant) Solicitors: Swaab (Appellant) Crown Solicitor (Second Respondent) File Number(s): 2022/00037076 Publication restriction: Under s 64(1)(a) of the Civil and Administrative Tribunal Act 2013, publication of the names of the Appellant, her private Guardian and the name of the Mental Health Facility, is prohibited. A reference to the name of a person includes a reference to any information, picture, or any other material that identifies the person or is likely to lead to the identification of the person. Decision under appeal Court or tribunal: Mental Health Review Tribunal of New South Wales Jurisdiction: N/A Citation: N/A Date of Decision: 1 July 2021 Before: D Letcher QC, C Tennant, J Learmont AM, Members REASONS FOR DECISION Overview 1. This is the second time that appeal proceedings have been commenced to challenge an order of the Mental Health Review Tribunal (MHRT) appointing the New South Wales Trustee and Guardian as financial manager for ZVR. The first appeal proceedings were dismissed by a differently constituted Appeal Panel, due to the lack of standing of ZVR's sister (ZVQ) to bring an appeal in her own right: ZVQ v ZVR [2022] NSWCATAP 33. This appeal has been brought in the name of ZVR by ZVQ, who is her guardian with the legal services function under an order of this Tribunal, thereby resolving the issue of standing, and therefore competency of the appeal. The parties agree that it is open to us to find that the MHRT proceeded without affording a procedurally fair hearing process. 2. For the reasons below, we are satisfied that the MHRT failed to afford procedural fairness to ZVR through a combination of factors and that, because there was the possibility that ZVR may have achieved a different outcome, we should set aside the decision of the MHRT. Background 1. The background and legislative framework relevant to the issues at hand were summarised in the earlier appeal. Having reviewed the material and satisfied ourselves that they are correct, we adopt the following relevant parts of that decision: 1. ZVR is a patient who has been detained in a mental health facility under the Mental Health Act 2007 (NSW) (the MH Act). Following an application made under s 46 of the NSW Trustee and Guardian Act 2009 (NSW) (the TG Act) by the mental health facility where ZVR is detained, the Mental Health Review Tribunal (MHRT) made a financial management order in respect of ZVR's estate. As a consequence of that order, ZVR's finances were managed by the NSW Trustee and Guardian. 2. … ZVQ, is the sister of the patient ZVR, and is one of the patient's appointed guardians. ZVQ did not attend the hearing held by the MHRT on 1 July 2021 at which time the MHRT made the financial management order concerning ZVR's finances. 3. It is not in issue that the MHRT has power to make a financial management order under s 46 of the TG Act. However, ZVQ contends that because she was not informed of the hearing, as was required under the MH Act, she was denied procedural fairness by not having the opportunity to take part in that hearing and to make submissions on the issues for determination. ZVQ submits that, as a consequence, the financial management order made by the MHRT should be quashed under s 79 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act). ... 7. Prior to the hearing, ZVQ provided written submissions in support of her purported appeal, asserting that the decision at first instance resulted in: a denial of procedural fairness by the failure of the MHRT to notify ZVQ of the hearing. In addition, she contends that the MHRT failed to take into account a relevant consideration, and took into account an irrelevant consideration. 8. The third respondent, [the mental health facility in which ZVR is a patient (the facility)] was the applicant in the MHRT proceedings. Neither the [facility], nor its "authorised medical officer", made any written submissions in these appeal proceedings. However, the [facility] indicated that it "consented" to the external appeal being brought to NCAT, acknowledging that it had failed to notify ZVQ of the MHRT hearing.. … Relevant legislative framework 11. The decision which is the subject of this appeal was made under s 46 of the TG Act, which provides: 46 Other orders by MHRT (cf PE Act, s 19) (1) The MHRT may, on application, consider a patient's capability to manage his or her affairs and, if satisfied that the patient is not capable of managing his or her affairs, must order that the estate of the person be subject to management under this Act. (2) An application under this section may be made by any person who has, in the opinion of the MHRT, a sufficient interest in the matter. … 12. Part 4.3 of the TG Act relates to orders for the management of the affairs of patients. Such orders can be made and reviewed by the MHRT in various circumstances; see Division 1 ss 44, 45, 46, 47 and 48 of the TG Act. Patient is defined in the MH Act to mean: "a person who is admitted to a mental health facility in accordance with this Act and who is in the facility following the person's admission…". 13. Under s 78(1)(h) of the MH Act, an authorised medical officer of a mental health facility must take "all reasonably practicable steps" to notify any "designated carer" of a patient if the patient has any matter before the MHRT. Under s 71(1)(a), the "designated carer" of a patient includes the guardian of the patient. 14. On 22 April 2021, NCAT made orders under the Guardianship Act 1987 (NSW) appointing ZVQ and the NSW Public Guardian as separate guardians of ZVR. NCAT gave ZVQ power to make decisions on behalf of ZVR in relation to legal services and "electronic content" about ZVR. NCAT gave the Public Guardian power to make decisions on behalf of ZVR in relation to access, accommodation, health care, services and restrictive practices and to consent to medical and dental treatment. 15. As a consequence of being a guardian for ZVR, ZVQ is deemed to be a "designated carer" for ZVR: s 71 of the MH Act. Division 2 of Ch 4 of the MH Act deals with notifications and information sharing and includes obligations on an authorised medical officer of a mental health facility to provide information about the patient's medication, on request (s 73), as well as other types of information. Section 78 is included in Div 2 and is headed "Notification to designated carers and principal care providers or events affecting patients or detained persons". Under s 78(1)(h), the authorised medical officer must take all reasonably practicable steps to notify any designated carer if the patient has any matter before the MHRT. 16. Under s 78(2), the authorised medical officer must give the notice "as soon as practicable after becoming aware the event has occurred". Given that it was [the MHF] itself which applied to the MHRT for a financial management order to be made in respect of ZVR, presumably the obligation under s 78(1)(h) on the authorised medical officer to take all reasonably practicable steps to notify ZVQ arose "as soon as practicable" on the making of the application to the MHRT. 17. Other than the notification provision in relation to designated carers in s 78(1)(h), there is no other statutory provision of which we are aware that imposes any further obligation, or otherwise deals with, any rights (however described) of a designated carer to participate in "the matter" before the MHRT. A designated carer would appear to have no statutory right to appear and be heard in the MHRT proceedings. We can find no statutory provision dealing with joinder of a person (such as a designated carer) as a party in the MHRT proceedings. 18. It is common ground that the notification contemplated by s 78(1)(h) of the MH Act was not given to ZVQ of the proceedings concerning ZVR in the MHRT and the hearing held on 1 July 2021. The authorised medical officer took no steps, and certainly not "all reasonably practicable steps", to notify ZVQ as required by s 78(1)(h) of the MH Act. 19. The circumstances in which an appeal can be made from a decision of the MHRT to NCAT are regulated by s 50 of the TG Act which provides: 50 Appeals to NCAT against estate management orders made by MHRT (cf PE Act, s 21A) (1) An appeal may be made by the following persons to the Civil and Administrative Tribunal against an order by the MHRT that the estate of a person be subject to management under this Act: (a) the person to whom the order relates, or (b) any other person who was a party to the proceedings in which the order was made. Note. An appeal under this section is an external appeal to the Tribunal for the purposes of the Civil and Administrative Tribunal Act 2013. (2) An appeal may be made: (a) as of right, on any question of law, or (b) by leave of the Tribunal, on any other grounds. Consequently, where there is an entitlement to appeal under s 50 of the TG Act, the appeal is as of right on any question of law, and otherwise by leave of the Tribunal. The MHRT is an external decision-maker because it is a decision-maker who is external to NCAT: see definition in NCAT Act, s 4. Consequently, appeals pursuant to s 50 of the TG Act are external appeals to NCAT because the decision is an appealable external decision over which NCAT has external appeal jurisdiction: see NCAT Act, s 31. Section 31(1) provides that NCAT has "external appeal jurisdiction" over a decision (or class of decisions) made by an external decision-maker if legislation provides that an appeal may be made to NCAT against any such decision (or class of decisions). By s 26(6)(b) NCAT Act an appeal under s 50 of the TG Act is a "designated external appeal". Accordingly, NCAT is to be constituted as an Appeal Panel in determining such an appeal: see ss 27(1)(a) and 27(6)(b) of the NCAT Act. An external appeal to NCAT is to be determined in accordance with the provisions of s 79 of the NCAT Act. This section provides: 79 Making and determination of external appeals (1) An external appeal may be made to the Tribunal by a person entitled to do so under enabling legislation on such a basis or grounds, or in such circumstances, as may be provided by that legislation. (2) In determining an external appeal, the Tribunal may: (a) in the case of enabling legislation that specifies the orders that may be made by the Tribunal on the appeal—make any of those orders, or (b) in any other case—make such orders as it considers appropriate in light of its decision on the appeal, including (but not limited to) orders that provide for any one or more of the following: (i) the appeal to be allowed or dismissed, (ii) the decision under appeal to be confirmed, affirmed or varied, (iii) the decision under appeal to be quashed or set aside, (iv) the decision under appeal to be quashed or set aside and for another decision to be substituted for it, (v) the whole or any part of the case to be reconsidered by the decision-maker whose decision is under appeal, either with or without further evidence, in accordance with the directions of the Tribunal. As there is no specification in the TG Act (the enabling legislation) concerning the powers of an Appeal Panel of NCAT to determine the appeal, s 79(2)(b) of the NCAT Act defines the powers of the Appeal Panel in determining the external appeal. These powers will be available in circumstances where the appeal proceedings are brought by a person entitled to bring the appeal to NCAT. Non-publication order 1. In earlier appeal proceedings the Appeal Panel made a non-publication order to prevent the publication of the names of ZVR, ZVQ and the mental health facility, which was named as a party. A similar order was made in this appeal when the matter was before the Appeal Panel for directions. The scope of this appeal 1. There is now no dispute that the appeal has been regularly commenced, in that ZVR has standing to bring the appeal and ZVQ has power to authorise it to be lodged on her sister's behalf as her guardian with the legal services function. 2. ZVR relies upon following grounds: 1. The appellant was denied procedural fairness and natural justice; 2. The appellant was not provided with access to a legal representative (duty or otherwise) to represent her interests or as amicus; 3. The guardian with legal services function was not notified in advance of the application for the Financial Management Order; 4. Statutory notification provisions were not complied with; 5. Information and evidence required to be provided in support of the application was not provided to the MHRT; 6. Evidence provided at the hearing was inaccurate, incorrect, speculative, made with no proper foundation, unreliable and irrelevant, which misled the MHRT; 7. The MHRT relied upon irrelevant considerations; 8. The MHRT failed to comply with the terms of the legislation in determining that the appellant was 'a person incapable of managing her affairs'; 9. The MHRT failed to give adequate reasons for their determination; 10. The MHRT failed to take the appellant's views into account; and 11. There was a lack of evidence to support the finding that the appellant was 'a person incapable of managing her affair[s]'. 1. ZVR asks that we set aside the decision of the MHRT. No submission was made that we are in a position to make a decision in substitution for it. 2. Unsurprisingly, given the history of the proceedings, this appeal was lodged late. However, neither an extension of time nor the appeal is opposed by the second respondent, who has made lengthy, detailed and helpful written submissions. As the second respondent confirms, it has no interest in the outcome of the proceedings and makes submissions for the assistance of the Appeal Panel. Those submissions express the second respondent's regret for its failure to comply with the requirements of s 78 of the TG Act, and offer an appropriate apology. The first respondent, the NSW Trustee and Guardian, who also has no interest in the outcome, has not sought to participate in the appeal. 3. For the reasons we will come to, an extension of time to lodge the appeal under s 41 of the NCAT Act is warranted due to the clear error of the MHRT, the serious consequences it may have on the welfare and interests of ZVR, and the lack of prejudice to any other party: see the principles outlined in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 at [22]. 4. In preparing the appeal, a stay of the order made by the MHRT was granted, without opposition from the respondents. The parties were also given the opportunity to submit on whether it would be appropriate that we dispense with a hearing and determine the appeal on the papers. No objection to that course was taken. On the basis of the material before us, we are satisfied that the issues for determination can be adequately determined in the absence of the parties and will make an order dispensing with a hearing: NCAT Act, s 50. Material relied on by the appellant 1. The appellant relies on the following: 1. The sound recording and transcript of the MHRT hearing on 1 September 2021; 2. the Financial Management Order application (FMO Application) filed by the MHF in the MHRT; 3. the Confirmation of Service of Notice completed by the MHF and filed with the FMO Application; and 4. the report provided by the MHF to the MHRT together with the FMO Application. 1. The appellant also seeks leave to rely on evidence in addition to evidence received by the MHRT at first instance: 1. An affidavit of ZVQ sworn on 3 March 2022. 1. The appellant submits that, whilst the evidence of ZVQ was available at the time of the MHRT hearing, it was not given to the MHRT prior to it deciding whether the appellant was a person incapable of managing her affairs due to ZVQ not being made aware of the hearing. It attaches an enduring power of attorney ZVR previously made appointing ZVQ and another jointly, and evidence of medical reports to indicate that the power had commenced when the MHRT made its decision. Can we consider evidence not before the MHRT? 1. This question arises because the external appeal to NCAT, under s 50 of the TG Act, is not an appeal by way of a new hearing but is a rehearing. 2. As submitted by the second respondent, in DGM v NSW Trustee and Guardian [2017] NSWCATAP 220, an Appeal Panel of this Tribunal appears to have adopted the position that further evidence, and specifically 'fresh' evidence, could not be relied upon in an appeal under s 50 of the TG Act. The Appeal Panel said: 82. Significantly, the appeal is not by way of a new hearing. Unlike internal appeals to NCAT under internal appeal jurisdiction or appeals to the Supreme Court under the [TG Act], no provision is made for the matter to proceed as a new hearing nor for a party to adduce fresh evidence: cf s 80(3) of the [NCAT Act] and s 49(2)(b) of the [TG Act]. 83. Rather, in determining the appeal, NCAT has different order making powers to those of the Supreme Court being those powers provided by s 79(2)(b) of the [NCAT Act] (above). This includes power to vary or set aside orders, substitute another order or remit the proceedings for rehearing with or without new evidence. 1. The reference to an appeal to the Supreme Court in [82] is to an appeal under s 49 of the TG Act. An appeal of that type is to be by way of a new hearing in which fresh evidence and further evidence may be given: s 49(2). 2. As the second respondent acknowledges, the availability of further evidence does not appear to have been a central issue in DGM, the focus of which was a question as to whether NCAT had jurisdiction at all (in circumstances slightly different from this case). DGM was considered in more detail and the relevant findings apparently adopted as correct by SM Ransome in Bungree Aboriginal Association Limited v NSW Registrar of Community Housing [2019] NSWCATAD 268: see particularly at [35] to [37]. 3. In any event, however, the second respondent acknowledges that the critical elements of the appellant's case may be established (if they are to be established) by reference only to the materials before the MHRT and the transcript. 4. The Appeal Panel in DGM and the Tribunal in Bungree determined that the external appeals under consideration by them were to be conducted as a rehearing, and not a new hearing. In each case, they referred to the lack of any reference in the referring legislation to the receipt of further evidence or power to conduct a "new" hearing as relevant to that determination. This was contrasted with other referring legislation where that power was explicit: see, for example, the Health Practitioner Regulation National Law (NSW) at s 159(3). To the extent that the decisions can be read as indicating that further evidence can never be allowed in an external appeal hearing which is a rehearing, in the absence of a specific power in the referring legislation, we respectfully disagree. 5. A common feature of an appeal by way of rehearing is the ability to receive further evidence: Engelbrecht v Director of Public Prosecutions (NSW) [2016] NSWCA 290 at [60]. Although an explicit power to admit further evidence is an indicia of a rehearing function (Engelbrecht at [61]), we do not accept that the lack of specific reference to allowing further evidence in s 79 of the NCAT Act, even in contrast to s 80 of that Act, results in a situation where the Appeal Panel has no ability to receive further evidence in an external appeal which is a rehearing. 6. Principles relevant to receiving further (or additional) evidence on appeal (where the appeal in the Tribunal is not being dealt with by way of "new hearing"), have been summarised in a number of Appeal Panel cases, including Ros v Commissioner of Police [2020] NSWCATAP 70 at [27] to [35], adopting Yuen v Thom [2016] NSWCATAP 243 at [14] – [22] and Lettau v Artwork Transport Pty Ltd [2017] NSWCATAP 14. While these Appeal Panel decisions were in the context of internal appeals under s 80 of the NCAT Act conducted as a rehearing, we think that the same reasoning applies in relation to external appeals under s 50 of the NSWTG Act. 7. There is a line of Appeal Panel cases which it has been stated that an internal appeal (which is not by way of new hearing) is akin to a rehearing, with the ability to receive further evidence if appropriate. Relevant considerations for receipt of further (or additional) evidence (noting that the terms "further" and "additional" are used interchangeably in this context) in appeals by way of rehearing include: whether the further evidence relates to the Tribunal's decision at first instance, and would have been relevant at the time of that decision; whether the further evidence would have produced a different result; whether admitting the further evidence could cause prejudice to the other party; and whether the further evidence would allow the Appeal Panel to consider, with the benefit of hindsight, whether serious injustice has resulted from the exercise of the Tribunal's discretion. 8. Although, we consider that the Appeal Panel has the power to receive further evidence, its powers on an appeal that is not a new hearing would ordinarily be construed on the basis that they are to be exercised for the correction of error: Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47. 9. In Yuen v Thom, the Appeal Panel said at [19] raising considerations we consider to be apposite here: "The question then arises as to the nature of an appeal that is not being determined by way of a new hearing. Having regard to s 36 of the [NCAT] Act and that the guiding principle of the Act is to facilitate "the just, quick and cheap resolution of the real issues in the proceedings" and that this principle is to be employed when construing any provision of the Act (s 36(2)(b) of the Act), we have concluded that an appeal in the strict sense would be unduly constraining on the Tribunal and not facilitate the guiding principle. Having regard to the guiding principle, an appeal under s 80(1) (that is not to be determined by way of a new hearing) is one that would facilitate an Appeal Panel to "[avoid] errors which cannot be otherwise remedied by the application of the conventional appellate procedures… This conclusion is supported by s 38(1) which provides that the Tribunal may determine its own procedure, where the procedural rules do not otherwise make provision." 1. The Appeal Panel in Yuen v Thom further stated that an appeal on a question of law would rarely warrant the receipt of new evidence but there may nonetheless be circumstances where the particular question of law warrants the receipt of additional evidence to prove the error. It was recognised there that one exception to the general proposition that the reception of new evidence on appeal on a question of law should be avoided is where the further evidence is necessary to prove the circumstances of breach of procedural fairness, citing Re Anasis; Ex parte Total Australia Ltd (1985) 11 FCR 127 at 129. 2. In addition, further evidence may be admitted in order to demonstrate that the appellant had been deprived of the possibility of a different outcome: Whall v Stamp [2019] NSWCA 163 at [11] per Basten JA. As we understand that to be the purpose of the affidavit of ZVQ, we will allow it into evidence. Appellant's submissions 1. As the appellant acknowledges, the appeal grounds can properly be grouped to be considered as follows: 1. the appellant was denied procedural fairness; 2. failure to comply with relevant legislation; 3. the quality of the evidence relied on by the MHRT. Was there a denial of procedural fairness? 1. Procedural unfairness raises a question of law and refers to "the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case. The statutory power must be exercised fairly i.e., in accordance with procedures that are fair to the individual considered in light of the statutory requirements, the interests of the individual and the interests and purposes, whether public or private, which the statute seeks to advance or protect or permits to be taken into account as legitimate considerations": Kioa v West (1985) 159 CLR 550 at 585. 2. It requires that a person whose interests are likely to be affected to be given an opportunity to deal with relevant matters adverse to those interests which the decision-maker proposes to take into account: Kioa v West (1985) 159 CLR 550 at 628 citing Kanda v Government of Malaya [1962] AC 322 at 337. 3. There is no issue that the second respondent failed to comply with its obligation under s 78 of the TG Act, and it is clearly established by the evidence. 4. Of course, the obligation was on the second respondent, not the MHRT. 5. However, in circumstances where the MHRT: 1. Proceeded to hear the application on an urgent basis, the day after it was lodged, and in the absence of ZVR (who reportedly declined to participate); 2. Asked no questions of the lawyer assigned to assist the appellant by the Mental Health Advocacy Service: transcript of MHRT hearing (transcript). It is also suggested that the lawyer had been unable to speak to ZVR but this is not established by evidence before us; 3. Did not invite, or hear submissions from the lawyer: transcript; 4. There is no record of ZVR's views (whether through her lawyer or otherwise) being put to the MHRT; 5. Proceeded without detailed evidence of ZVR's financial position. The Presiding Member noted that "I'm not really assisted by a lot of the material here uhm it's usual to have a report setting out what her sources of income are, what has been the experience over past years of her ability to control her financial affairs and what's required in the future. There is very, very little of that before me." As the Member recorded later, it was "not a well prepared application": transcript; 6. Had two separate reports before it (Mental Health Report dated 29 June 2021 and Social Work Report dated 28 June 2021), which made reference to ZVR's sister. The Mental Health Report refers to ZVR's sister as manager of ZVR's finances; the Social Work Report specifically refers to ZVR's two guardians (as at 29 June 2021), with ZVR's sister stated as the guardian for legal services; and 7. Failed to enquire whether notice of the FMO application had been given to other relevant parties, and whether s 78 of the MH Act had been complied with: transcript; we are satisfied there was a denial of procedural fairness. 1. Procedural fairness must be afforded to a person whose rights and interests may be affected by the decision. With respect, the parties' submissions to an extent focus on a lack of procedural fairness afforded to ZVQ, without identifying how her interests were affected. As a guardian appointed for ZVR with important obligations to make decisions about her legal services, it may be that ZVR's interests can be said to have been materially affected given the likely obligation for her to liaise with an appointed financial manager. 2. In any event, however, we are satisfied the issues we have identified, taken cumulatively, denied procedural unfairness to ZVR. In respect of the failure to notify ZVQ, the intent of s 78 of the MH Act appears to us to be clearly addressed to ensuring that a patient, who is in a position of particular vulnerability, has the opportunity to be assisted in the application to the MHRT by others involved, in a formal sense, with their care. Even if there is no formal right of those persons to appear and be heard at the MHRT hearing, they could still potentially assist the patient with the provision of information, or assistance facilitating legal representation. Should we set aside the decision? 1. Even where procedural unfairness is established, it is not inevitable that the affected decision must be set aside and a new hearing ordered. Whilst that is the usual outcome, we should not do so if satisfied that a properly conducted hearing could not have produced a different result: Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54. 2. The second respondent submits that it appears that there is no dispute that ZVR is incapable of managing her financial affairs, noting the appellant's solicitor has confirmed that is the case in correspondence and has further indicated that she intends to seek a further FMO naming ZVQ as financial manager. 3. It submits that the MHRT's ultimate statutory task under s 46 of the TG Act was to consider whether it was "satisfied [ZVR] is not capable of managing [her] affairs". If it was so satisfied, it was required to make a FMO. Given that it is not disputed that the conclusion that the MHRT reached in that regard was correct, there is a question as to whether any error attending the MHRT's processes was material to the outcome. 4. In the second respondent's submission, the position is the same for this Appeal Panel in the exercise of its external appeal jurisdiction under s 50 of the TG Act; that is, NCAT is similarly unable to appoint any person other than the NSW Trustee as financial manager (unlike the position in NCAT's first-instance jurisdiction under the Guardianship Act). Section 52 of the TG Act is not, in terms, limited to orders made by the MHRT; rather, it appears to apply to any order made under Pt 4.3 of the Act except a "special order of the Supreme Court". The identification, in s 52, of the appellate pathway to the Supreme Court under s 49, but not the appellate pathway to NCAT under s 50, along with the use of the word "special", suggests strongly that NCAT's appellate power is intended to be more limited than that of the Supreme Court. One reason why the Parliament may have created that distinction is because NCAT will often not be in a position, in an appeal to be determined on the materials before the MHRT, to exercise a power which was not available to the MHRT (and so was not the subject of evidence at first instance). That issue would not arise in a Supreme Court appeal under s 49 (which is by way of a new hearing) or in NCAT's first-instance Guardianship Act jurisdiction. 5. There is apparent merit in that submission, but we do not consider it necessary or appropriate to determine the issue in this appeal. That is because the fact that the MRHT, or indeed the possibility that this Appeal Panel in this context, may not appoint a financial manager other than the first respondent, does not preclude an alternative outcome which the appellant might achieve if the proceedings are remitted. 6. As the second respondent quite properly acknowledges, taking up a submission of the appellant, it is relevant to note that the power in s 46(1), TG Act is framed in terms which are in part permissive ("may... consider") and in part obligatory ("must order"). That suggests that s 46 intends to confer on the MHRT a discretion to refuse to consider an application made under s 46(2) in appropriate cases, but to require the MHRT to make an order appointing the first respondent if, having considered an application, it is satisfied that the person is not capable of managing his or her affairs. The case for that construction is stronger where, as here, the words "may" and "must" are used in the same provision, which suggests that they are intended to convey different meanings. Given the prescribed outcome if the MHRT proceeds to hear the application and finds a patient to be incapable of managing their affairs, the existence of a discretion to proceed or not would also seem to be consistent with the need for the MHRT to take into account further information that becomes available after the application is made. For example, if s 78 is complied with it may become known that there is already a FMO in place in New South Wales or elsewhere. 7. Again, we will not determine that issue here, but it does not seem to have been considered by the MHRT and the existence of an apparently valid and operable enduring power of attorney to provide for substitute management of ZVR's finances would seem to be relevant to the exercise of any discretion to hear the application the MHRT determines it may lawfully exercise. There remains the potential need to resolve factual issues about the suitability of the power to meet ZVR's need for substitute decision-making before any such discretion is exercised, so we are in no position to substitute our own decision for that of the MHRT in the circumstances. 8. We should set aside the decision of the MHRT on that basis. Given the possibility that the MHRT may decide that it has a discretion to exercise as to whether to conduct a hearing, we will make no order as to how the matter is to proceed in case it is seen as a fetter to the exercise of any such discretion. Should we consider the other grounds of appeal? 1. Authority dictates that we hear and determine a procedural unfairness challenge prior to any other challenges and that "whenever a matter is remitted for a retrial, it is preferable that the appellate court restrict its assessment of the evidence to matters necessary to the finding of error": Royal Guardian Mortgage Management Pty Ltd v Nguyen [2016] NSWCA 88 per Basten JA at [11] & [13], citing Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55. 2. Having regard to our decision to set aside the decision of the MHRT, we do not consider it necessary to deal with the other grounds. Costs 1. No order for costs was sought by the appellant in the notice of appeal. In preparing the appeal for hearing the Appeal Panel made directions which included the following notation: 2. If any party wishes to make an application for costs of the appeal, that party is to lodge with the Appeal Panel and give to the other party any submissions on costs same time of their submissions in relation to the appeal. 1. The appellant did not raise the possibility of an application for costs in her submissions. We will proceed on the basis costs are not sought. Orders 1. We make the following orders: 1. A hearing of the appeal is dispensed with, under s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW). 2. Time for lodgment of the Notice of Appeal is extended to the date of lodgment. 3. The appeal is allowed. 4. The decision of the Mental Health Review Tribunal on 1 July 2021 is set aside. 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: 09 November 2022