Civil and Administrative Tribunal New South Wales Medium Neutral Citation: ZCA v NSW Trustee and Guardian [2016] NSWCATAP 192 Hearing dates: 30 June 2016 and 8 July 2016 Date of orders: 26 August 2016 Decision date: 26 August 2016 Jurisdiction: Appeal Panel Before: Hennessy LCM, Deputy President A Boxall, Senior Member B McPhee, Senior Member Decision: 1. The appeal from the decision to make a guardianship order in respect of ZCC for 12 months is allowed. 2. The decision in (1) above is set aside. 3. The application for a guardianship order is to be reconsidered by the Tribunal with further evidence. 4. The appeal from the decision that the estate of ZCC be subject to management under the NSW Trustee and Guardian Act 2009 is dismissed. 5. Leave is refused for the appellant to appeal on grounds other than a question of law. Catchwords: APPEAL – guardianship and financial management – mandatory considerations when deciding whether to make a guardianship order – views of the person -procedural fairness – reasonable opportunity to respond to evidence – no opportunity to cross examine witnesses – no offer of adjournment – admission of fresh and further evidence on appeal Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) s 38, s 45, s 65, s 80 Guardianship Act 1987 (NSW) ss4, 14 and 17 Mental Health Act 2007 (NSW) NSW Trustee and Guardian Act 2009 (NSW) Cases Cited: Building Professionals Board v Hans (GD) [2008] NSWADTAP 13 CKG v Public Guardian [2014] NSWCATAP 32 Commissioner of Police for New South Wales v Industrial Relations Commission of New South Wales & Raymond Sewell [2009] NSWCA 198 Gianoutsos v Glykis (2006) NSWCCA 137 IF v IG [2004] NSWADTAP 3 Italiano v Carbone and Ors [2005] NSWCA 177 Kioa v West [1985] HCA 81 Mahon v Air New Zealand Ltd [1983] UKPC 29; [1984] AC 808 Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 Pilbara Aboriginal Land Council Corporation Inc v Minister for Aboriginal and Torres Strait Islander Affairs [2000] FCA 1113; (2000) 103 FCR 539 Re Refugee Tribunal; ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 Re Toohey and Another; Ex parte Meneling Station Pty Ltd \ (1982) 44 ALR 62 Rowe v Australian Steam Navigation Co Ltd [1909] HCA 25; (1909) 9 CLR 1 Category: Principal judgment Parties: ZCA (Appellant) NSW Trustee and Guardian (1st Respondent) The Public Guardian (2nd Respondent) ZCB (3rd Respondent) ZCC (4th Respondent) Representation: Counsel M Neville (3rd Respondent) Solicitors Greater Western Legal (Appellant) Crown Solicitor's Office (3rd Respondent) Guardian ad litem S Stuart (4th Respondent) File Number(s): AP 16/16473 Publication restriction: It is an offence under s 65 of the Civil and Administrative Tribunal Act 2013 (NSW) for a person, except with the consent of the Tribunal, to publish or broadcast the name of any person who appears as a witness before the Tribunal in these proceedings, or who is mentioned or otherwise involved in these proceedings, whether before or after the proceedings are disposed of. Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Guardianship Division Date of Decision: 1 February 2016 Before: J Kearney, Senior Member (Legal)T Ovadia, Senior Member (Professional)E Pickering, General Member (Community) File Number(s): C/61436 REASON FOR DECISION Overview 1. ZCC is a 54 year old man with disabilities relating to cognition and mental health. He lived with his sister, the appellant, for 10 years in a home they owned together but it was recently compulsorily acquired by the NSW government. Following his admission to hospital under the Mental Health Act 2007 (NSW) late in 2015, a social worker (ZCB) applied to the Tribunal for a guardianship order and a financial management order. The application forms and reports from ZCC's medical team were critical of matters including the level of care the appellant had provided to ZCC, her lack of engagement with the treating team and the fact that she gave what they said was false information about ZCC's financial affairs. 2. The Tribunal made a 12 month guardianship order in relation to ZCC and appointed the Public Guardian to make decisions about his accommodation, health care, medical and dental treatment as well as other services. The Tribunal also made a financial management order and committed the management of ZCC's estate to the NSW Trustee and Guardian. The appellant has appealed to the Appeal Panel from the Tribunal's decisions. She is entitled to appeal on a question of law but requires the Appeal Panel's permission to appeal on other grounds: Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), s 80. 3. We have allowed the appeal from the decision to make a guardianship order in respect of ZCC for 12 months. In coming to that decision the Tribunal did not take into account ZCC's view that he did not want a guardian. The Tribunal was required to take that matter into account as a mandatory consideration: Guardianship Act 1987 (NSW), s 14(2). 4. We have dismissed the appeal from the decision that the estate of ZCC be subject to management under the NSW Trustee and Guardian Act 2009 (NSW). Apart from the grounds of appeal relating to procedural fairness, all of which we have rejected, none of the grounds of appeal relate to that decision. We have refused permission for the appellant to appeal on grounds other than a question of law. The appellant sought to adduce new evidence on appeal but we have not permitted her to do so because, as a general rule, she is bound by the way she conducted the proceedings before the Tribunal. None of the new evidence, had it been before the Tribunal, is likely to have produced a different result. Background 1. In 2006 when ZCC's mother died, he moved in with his sister, the appellant. Four years later he had a stroke. In September 2012, ZCC executed an enduring power of attorney appointing the appellant as his attorney. 2. In October 2015 ZCC was admitted to hospital with diarrhoea and dehydration. A month later, on 20 November, he was again admitted to hospital, this time as an involuntary patient under the Mental Health Act. He was living in a mental health facility at the time of the Appeal Panel hearing in July 2016. 3. On 24 November 2015 a social worker, ZCB, telephoned the appellant to let her know that her brother was ready to go home but that someone needed to come to the hospital to complete the formalities. The appellant said she would ring back but failed to do so. Nine days later the social worker telephoned again and the appellant told her that she would come in to visit soon. On 15 December 2015 the appellant attended the hospital with her solicitor. At that time ZCC signed an enduring guardianship instrument appointing the appellant as his guardian. The following day the social worker applied to the Tribunal for a guardianship order and a financial management order. 4. ZCC's treating team, led by consultant psychiatrist Dr Kealy-Bateman, attended the Tribunal hearing on 1 February 2016 by video link. Parties and representation 1. The Appeal Panel appointed a guardian ad litem (GAL), Mr Stuart, to represent ZCC's best interests. He submitted that ZCC needed to be discharged from hospital and engage with relevant services. The appellant was represented by Mr McDougall of Greater Western Legal. The second respondent was the social worker who applied for the guardianship and financial management orders. She was represented by the Crown Solicitor's Office and Ms Neville of counsel. Neither the NSW Trustee and Guardian nor the Public Guardian participated in the appeal. Grounds of appeal 1. The appellant's lawyer listed eight grounds of appeal in the Notice of Appeal but we understand that he is now relying on the seven grounds set out in further written submissions provided to the Tribunal on 8 July 2016. In further submissions provided after the hearing, the appellant withdrew ground 3 (failing to take into account a matter that the Act implicitly or explicitly requires the decision maker to take into account). The reason the appellant's lawyer withdrew that ground was that he acknowledged that in the written and oral submissions he had not correctly stated the law as to the significance of a person's views. Following the hearing, he requested that ground 3 of the appeal be withdrawn or disregarded on that basis. 2. There is no need for the appellant to withdraw this ground of appeal on the basis of a mistaken submission about the law. We will address it applying the correct legal principles. 3. We do however accept the appellant's clarification that the appeal is not made on the ground that the Tribunal breached procedural fairness by giving inadequate notice of the hearing or failing to give her a reasonable opportunity before the hearing to respond to adverse material. 4. Some of the remaining grounds do not identify a question of law and several overlap with other grounds or are repetitive. Rather than addressing the grounds as set out by the appellant, we have reformulated them as follows. 5. The Tribunal: 1. breached the rules of procedural fairness; (grounds 1, 2 and 7) 2. failed to take into account certain considerations; (grounds 4 and 5) and 3. provided inadequate reasons (ground 6). 1. The appellant applied for leave to appeal on a ground other than a question of law. That ground was that new evidence is now available and should be taken into account. Procedural fairness Principles 1. The Tribunal is required to comply with the rules of procedural fairness which are sometimes called the rules of natural justice: NCAT Act, s 38(2). Those rules require that a person be given a fair hearing before decisions are taken which affect their interests: Re Refugee Tribunal; ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 at [101]. This common law principle is articulated in s 38(5)(c) of the NCAT Act which requires the Tribunal to " ... take such measures as are reasonably practicable to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings". 2. In order to provide evidence and make submissions, a party must be aware of all the "credible, relevant and significant" material that will be considered: Kioa v West [1985] HCA 81 at [38]; (1985) 159 CLR 550 at 628-629. A person who might be affected by a finding should be given the opportunity to adduce evidence and make submissions rebutting the potential adverse finding: Mahon v Air New Zealand Ltd [1983] UKPC 29; [1984] AC 808 at 820-821. It may be sufficient in some circumstances to inform the party of the "gravamen or substance" of the issue, rather than provide complete copies of all the material: Pilbara Aboriginal Land Council Corporation Inc v Minister for Aboriginal and Torres Strait Islander Affairs [2000] FCA 1113; (2000) 103 FCR 539 at 557. Ways in which Tribunal is said to have breached procedural fairness 1. Our understanding of the appellant's grounds of appeal relating to breaches of procedural fairness are that the Tribunal: 1. relied on the oral evidence of Dr Veness when the appellant had no notice of that evidence; 2. failed to give the appellant a reasonable opportunity to be heard or otherwise have her submissions considered; 3. failed to allow the appellant to cross-examine witnesses; 4. failed to grant an adjournment or failed to offer the appellant an adjournment even though none was requested; and 5. accepted evidence which should have been rejected. Relying on the oral evidence of Dr Veness when the appellant had no notice of that evidence 1. Seven members of ZCC's medical team appeared by video link at the Tribunal hearing. The transcript attributes certain evidence to Dr Veness and the Tribunal records Dr Veness as having given that evidence in the reasons for decision. The appellant objects to the Tribunal taking any of this evidence into account because Dr Veness did not provide a report prior to the hearing and the appellant did not have notice of the evidence Dr Veness gave at the hearing. 2. We do not accept this submission for two reasons. First, it was Dr Kealy-Bateman who gave the evidence, not Dr Veness. Second, and more significantly, regardless of who gave the evidence, procedural fairness does not require a party to have received a report written by a particular witness before that witness can give evidence. 3. The social worker's counsel told the Appeal Panel that her client had told her that the evidence attributed to Dr Veness was actually given by Dr Kealy-Bateman. There was no direct evidence from the social worker to that effect and the sound recording was not tendered. Even so, there is enough evidence from which an inference can be drawn, that it was Dr Kealy-Bateman, not Dr Veness, who was speaking. 4. First, the oral evidence of the witness was consistent with the content of two medical reports, the "December 2015 report" signed by Dr You, the psychiatric registrar, on behalf of Dr Dus and the "January 2016 report" signed by Dr You on behalf of Dr Kealy-Bateman. Neither report was written by or on behalf of Dr Veness. In those circumstances, it is much more likely that Dr Kealy-Bateman would have been the one to give oral evidence elaborating on the content of those documents. Second, Dr Veness is a Residential Medical Officer (RMO) a junior and much less experienced member of the team than Dr Kealy-Bateman. It is more likely that the leader of the team would speak on behalf of the team. Third, the transcript records the witness as saying that he has been a doctor for 10 years. It is unlikely that an RMO would have been practising for that long. Finally, the person preparing the transcript may have had some difficulty identifying the speaker since seven members of the medical team appeared together via video link. 5. On the basis of these four matters, as well as the second hand evidence from the social worker's counsel, we draw the inference that the witness was Dr Kealy-Bateman and not Dr Veness. In those circumstances it cannot have been a breach of procedural fairness for the appellant not to have received a report from Dr Veness before the hearing. Even if the witness was Dr Veness, procedural fairness does not require a witness to provide a party with a copy of a report written by that person prior to the hearing. All that is required is that a party be informed of the substance or gravamen of any credible, relevant and significant material and be given a reasonable opportunity to respond to that material. We address that issue below. Reasonable opportunity to respond to adverse material at the hearing 1. In the applications for guardianship and financial management orders, the social worker provided a summary of the grounds on which the orders were sought. In the guardianship application she included the following adverse material about the appellant: "deterioration in home environment, highly vulnerable to exploitation, abusive home environment, carer stress, lack of engagement with medical team, no visits from the family for over three weeks and coercive signing of an application for guardianship". In the financial management application, the social worker included the following points: "[ZCC] currently has no access to his own funds, statement by [the appellant] that [ZCC] has no assets at all and coercive signing of financial documents". 2. The bundle of material the Tribunal forwarded to the appellant prior to the hearing included the December 2015 report signed by Dr You on behalf of ZCC's then consultant psychiatrist Dr Dus. That report contains the following adverse material about the appellant: 1. she did not visit ZCC during the first three weeks of his mental health admission despite many phone calls asking her to attend and to bring ZCC some money; 2. the day after the medical team told the appellant that they would be applying for guardianship, the appellant attended the ward with a solicitor and an application form for enduring guardianship; 3. the treating team told the appellant and her solicitor on that day that ZCC lacked capacity to make this decision and was mentally ill; 4. despite that information having been communicated, the appellant and her solicitor continued to urge ZCC to sign the application for enduring guardianship and he subsequently signed it; 5. the treating team has significance concerns about ZCC's vulnerability to exploitation; 6. the treating team believed that the appellant was deceitful in initially reporting to them that ZCC did not have any assets when in fact he owns a half share in the property where both he and his sister previously lived; and 7. ZCC's views depend on who is around him and who he needs to please. 1. The bundle of documents that the Tribunal forwarded to the appellant before the hearing did not include the January 2016 report signed by Dr You on behalf of Dr Kealy-Bateman. The social worker's lawyer submitted that because the Tribunal identified that report at the beginning of the hearing and the appellant did not indicate that she had not received it, she is taken to have had notice of it. We do not accept that submission. The appellant's failure to indicate that she did not have a particular report does not necessarily mean that she had notice of its contents. 2. However, we are satisfied that the January 2016 report did not contain any adverse material that had not already been communicated to the appellant in the December 2015 report. In the second report under the heading "Concerns Regarding Current Carer", Dr You reiterated the history of minimal engagement by the appellant, deterioration in the domestic situation, risk to ZCC's physical health, a reluctance to provide ZCC with money and the allegation that the appellant ignored advice as to ZCC's capacity to execute an enduring guardian document. The substance of these allegations had all been communicated to the appellant in the social worker's applications to the Tribunal and in the December 2015 report. 3. The Tribunal gave the appellant a reasonable opportunity to respond to the adverse material at the hearing. Towards the beginning of the hearing the appellant said, "I can answer all the questions and everything in all their -I've got answers for all their questions and everything disputed with me today" (Transcript, p 11.) When a Tribunal Member said to the appellant that the medical team had had trouble talking to her, the appellant responded explaining that the house is being resumed and that there was a breakdown in her relationship with her partner. (Transcript, p 12.) She added that her partner has not lived with her since ZCC has been in hospital. Further the appellant said that because the house had to be sold she was dealing with solicitors and valuations and "running into the city and also running to Parramatta to get the best price …" (Transcript, p 13.) She went on: I rang the hospital and I said – I spoke to [the social worker] and I said, 'Is he safe there? Is he safe?" And, I spoke to her about that. He's in good hands. I never questioned the medical or anything like that, but I do question what they've written about me. It's – I'm very upset about it, what's been written about me. (Words in brackets added.) 1. The appellant told the Tribunal that many of the stressors have now lifted and that, "I don't have a drama anymore". (Transcript, p 14.) She acknowledged that the medical team had done a great job with ZCC's medication. When asked directly whether she had failed to return calls from the case workers, the appellant said that that had only been the case recently, when the house was being compulsorily acquired. When given a final opportunity to respond to any of the adverse material, the appellant made the following comment in relation to the allegation that she and her solicitor had coerced ZCC into signing a power of attorney document: It's questioned here a few times, maybe three or four times, about how things have been coerced and dah-dee-dah-dee-dah. That's not true. It goes on. My solicitor spoke nicely and clearly to [ZCC]. He did understand on the day. I left the guardianship papers on the bed. (Transcript, p 35) 1. Towards the end of the hearing the following exchange occurred: Mr Kearney: just before we retire, [appellant] is there anything else you want to say to us? ZCA: I didn't know if I need to go - address some of these things to - I've actually put these in, so - but there's a thing stated here that my husband actually came to the hospital. My husband has never been in that hospital. He doesn't know where [ZCC] is – they've never spoken since the day of the 20th … Ms Ovadia: it's all right. I don't … ZCA: There's a lot of things written that aren't – that aren't true. I'd like to clear up a few of them up, but, I mean, I think, you know, a decision's already been made so … Mr Pickering: well, it hasn't, because we haven't discussed it yet. In a moment we'll take a break and we will discuss it. (Transcript, p 35) (Words in brackets added.) 1. Although the appellant says she was "cut off" and was not given a chance to say everything she wanted to say, it is apparent when reading the transcript as a whole that she was given a reasonable opportunity to be heard. 2. The only evidence given by Dr Kealy-Bateman (or Dr Veness) which was not included in either the December 2015 report or the January 2016 report was the observation that, in his ten years as a doctor he had never experienced such lack of engagement by a family as he had experienced in relation to ZCC's family. The witness said the appellant's lack of responsiveness was "perplexing" and "puzzling". The Tribunal referred to this comment in its reasons for decision. 3. This comment was an opinion or observation about the appellant's conduct based on the evidence the witness had given. The appellant was given a reasonable opportunity to give evidence either that she had not behaved in the way the witness had suggested or that there were justifiable reasons for her behaviour. In those circumstances the Tribunal has not breached procedural fairness. Failing to allow the appellant to cross-examine witnesses 1. "The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice": NCAT Act, s 38(1). The Tribunal is also "to act with as little formality as the circumstances of the case permit … ": NCAT Act, s 38(4). We understand the practice in the Guardianship Division of the Tribunal to be that parties are not sworn or affirmed and evidence is given in response to questions from the Tribunal. Formal cross-examination is rare and did not occur in these proceedings. 2. The fact that the appellant was not offered the opportunity to cross-examine any of the witnesses does not necessarily mean that she was denied procedural fairness. We are satisfied, on the basis of the transcript and the parties' submissions, that the appellant knew the substance of the allegations against her and was given the opportunity to adduce evidence and make submissions rebutting the adverse evidence. Refusing to grant an adjournment or failing to offer an adjournment 1. Refusing to grant a reasonable request for an adjournment can constitute procedural unfairness: Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at [40]. 2. The appellant submitted that she attempted to apply for an adjournment towards the end of the hearing when she said she didn't know if she needed to "go (and) -- address some of these things". (Transcript, p 35) 3. These words, which are set out in context at [30] above, do not constitute an application for an adjournment. The appellant was merely indicating that she did not know if she needed to address things that were incorrect such as that her husband had been at the hospital. Because the appellant did not apply for an adjournment at any stage of the hearing, the Tribunal cannot have breached the rules of procedural fairness by refusing to grant such an application. 4. Regardless of whether the appellant applied for an adjournment, the Tribunal is bound to offer a self-represented party an adjournment, if is appropriate to do so: Italiano v Carbone and Ors [2005] NSWCA 177 at [105]. The appellant submitted that because she told the Tribunal that she didn't know if she needed to "go (and) –address some of these things" the Tribunal was obliged to offer an adjournment so that she could respond to the adverse material. In support of that proposition, the appellant's lawyer quoted the following passage from CKG v Public Guardian [2014] NSWCATAP 32 at [23]: If a party complains of late receipt of material of significance they should be invited to explain why they regard themselves as prejudiced in responding to it in the course of the hearing now on foot. They should be asked why they need further time. They should have explained to them their right to apply for an adjournment or some other direction that might alleviate the prejudice they perceive. It does not follow that the Tribunal must accede to such an application, but the person affected should be given the opportunity in circumstances of the present kind to present their case for an adjournment. 1. Unlike the situation in CKG v Public Guardian there was no late receipt of material of significance in this case. As we explained above, the appellant says she did not receive the January 2016 report prior to the hearing. Even so, that report did not contain any additional adverse material that had not already been communicated to her in the December 2015 report and the social worker's applications. In those circumstances it was not a denial of procedural fairness to fail to offer the appellant an adjournment. Contrary to the appellant's submission CKG v Public Guardian does not stand for the proposition that the Tribunal is bound to offer an adjournment merely because a party perceives that she may have been prejudiced. 2. The appellant also submitted that the Tribunal should have offered her an adjournment because she did not have a lawyer. A party to proceedings before the Guardianship Division may only be represented by a lawyer with the leave of the Tribunal: NCAT Act, s 45. 3. The social worker's lawyer submitted that the appellant could have requested leave to be legally represented but chose not to do so. That submission was made on the basis that she had engaged a lawyer in December 2015 who accompanied her when ZCC signed an enduring guardianship document. The fact that the appellant was not represented by a lawyer does not mean that the Tribunal was obliged to offer her an adjournment. Accepting evidence which should have been rejected 1. The appellant referred to evidence given by a witness, Dr Kealy-Bateman (or Dr Veness) that ZCC had been making significant progress while in hospital in terms of integration into the community. The witness gave the example of ZCC leaving the hospital, going into the city and finding his way back to the hospital. He was hoping that ZCC could continue his admission for a few more weeks. The witness then said: If the Tribunal advises us that you can't make the – it can't be – we won't get all our – won't get an outcome from you, we will go back to the Mental Health Review Tribunal to continue his admission, because it is of immense benefit to him to be here for a bit longer. 1. The appellant's lawyer objected to the Tribunal accepting comments of this kind as evidence in the proceedings because he said the medical team was advocating on behalf of ZCC rather than presenting an objective view of his situation. 2. The appellant also submitted that the Tribunal did not tell her that she was entitled to object to the way her brother had been questioned by the medical team. 3. As we have said, the Tribunal is not bound by the rules of evidence and is to act as informally as the circumstances permit. The touchstone is that the Tribunal must afford the parties procedural fairness: NCAT Act, s 38(2). There is nothing procedurally unfair in the Tribunal failing to formally reject evidence about what the medical team intended to do if the Tribunal did not make a guardianship order. Similarly, there is nothing procedurally unfair in the circumstances of this case of the Tribunal failing to tell the appellant that she could object to certain evidence. Failed to take into account certain considerations Failure to take into account ZCC's and the appellant's views 1. When the Tribunal asked ZCC at the beginning of the hearing what his attitude was to the applications he said: … I don't really want a guardian. I just want my sister to be my guardian.(Transcript, p 5.) 1. He also said more than once that he wanted to continue to live with his sister (Transcript, pp 5, 6, 21 and 34.) 2. The appellant emphasised that ZCC had lived with her for 10 years and she had looked after him during that time. Her lawyer submitted that the Tribunal either failed to take into account her views and those of her brother or that it failed to give sufficient weight to those views. 3. We understand that submission to apply to the issue of whether to make a guardianship order as well as to the issue of who to appoint as guardian if an order was made. Deciding whether to make a guardianship order 1. Under the heading, "Should the Tribunal make a guardianship order and what order should be made?", the Tribunal set out s 14(2) of the Guardianship Act: (2) In considering whether or not to make a guardianship order in respect of a person, the Tribunal shall have regard to: (a) the views (if any) of: (i) the person, and (ii) the person's spouse, if any, if the relationship between the person and the spouse is close and continuing, and (iii) the person, if any, who has care of the person, (b) the importance of preserving the person's existing family relationships, (c) the importance of preserving the person's particular cultural and linguistic environments, and (d) the practicability of services being provided to the person without the need for the making of such an order. 1. The Tribunal noted at [15] that the matters listed in s 14 have no hierarchy or weighting. Rather, the Tribunal must undertake a balancing exercise taking into account the principles in s 4 of the Guardianship Act which are: 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. 1. When considering the issue of who to appoint as guardian, the Tribunal recorded at [24] that ZCC told the Tribunal that he wanted his sister to be his guardian. The Tribunal also recorded that when admitted under the Mental Health Act on 20 November 2015 ZCC told medical staff that he did not wish to return to live with his sister. They are the only references in the decision to ZCC's views. The Tribunal did not record anywhere in the decision that ZCC gave evidence that he did not really want a guardian. 2. The Tribunal then set out the following reasoning for making a guardianship order: [ZCB], the applicant, submitted that there was a need for a guardian because there were big decisions coming up for [ZCC], in particular his accommodation. He has a home that he owns with his sister (which they inherited from their mother. It has recently been sold … Further [ZCB] said a guardian would be needed with functions of accommodation, medical and dental consents and services. 1. The Tribunal did not refer to ZCC's views as part of this reasoning. Nor did it refer to other relevant matters in s 14(2) particularly the importance of preserving family relationships and the practicability of services being provided to the person without the need for the making of a guardianship order. 2. Despite the fact that the Tribunal correctly stated the law, it did not apply the law in its reasoning process. Each of the matters listed in s 14(2) must be taken into account when deciding whether to make a guardianship order. One of those matters is the views of the person and his or her carer. Those views must be given weight as fundamental elements in coming to a decision: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24; Re Toohey and Another; Ex parte Meneling Station Pty Ltd \ (1982) 44 ALR 62 at 67 (Gibbs CJ). An equivalent formulation is that mandatory considerations must be a "focal point" of the decision-making process: Commissioner of Police for New South Wales v Industrial Relations Commission of New South Wales & Raymond Sewell [2009] NSWCA 198 at [73]. 3. ZCC's view that he did not really want a guardian was not a focal point in the Tribunal's reasoning. The Tribunal did not take that view into account as a "fundamental element" in coming to its decision, nor did it undertake the "balancing exercise" that was required in this case: IF v IG [2004] NSWADTAP 3 at [28]. It was an error of law for the Tribunal to fail to do so and the decision to make a guardianship order should be set aside on that basis. 4. We will go on to consider the remaining grounds of appeal. Deciding who to appoint as guardian 1. If the Tribunal decides to make a guardianship order, it must also decide who to appoint as guardian. In doing so, it must be satisfied of the matters listed in s 17(1): When deciding who to appoint as a guardian, the Tribunal must be satisfied of the matters listed in s 17(1): (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. (2) Subsection (1) does not apply to the appointment of the Public Guardian as the guardian of a person under guardianship. 1. Addressing s 17(1)(c), the Tribunal noted at [25] that the appellant was willing to be appointed as guardian as she had cared for her brother and effectively been his guardian for many years. 2. But the Tribunal was not satisfied that there was "no undue conflict between the interests (particularly, the financial interests) of the proposed guardian and those of the person under guardianship": Guardianship Act, s 17(1)(b). The Tribunal found that there was a "real conflict of interest" on the basis that the appellant will have difficulty separating her own interests from her brother's interests when making a decision about where he should live. Having made that finding, the Tribunal was not able to appoint the appellant as ZCC's guardian regardless of the fact that it was his view that she should be appointed. For that reason the Tribunal did not fail to take into account a consideration that it was bound to take into account when deciding who to appoint as ZCC's guardian. Inadequate reasons 1. The basis for this ground of appeal was that the Tribunal mentioned ZCC's view that he wanted his sister to be his guardian only once in the decision. As we have decided to set aside the decision because the Tribunal did not take ZCC's views into account when deciding whether to make a guardianship order, there is no need to address this ground of appeal. Leave to appeal on grounds other than questions of law 1. The basis of the appellant's application for leave to appeal on grounds other than a question of law was that new evidence was available which supports the appellant's position. The Appeal Panel should re-hear the applications based on that evidence: NCAT Act, s 80(3). The new evidence included: 1. a medical report from Dr Lo Macolo dated 4 July 2016 summarising ZCC's past health and expressing the view that the appellant can act in ZCC's best interests; and 2. a letter from Previte & Associates, solicitors and attorneys, setting out the authors' version of what took place on 15 December 2015 when attending the hospital with the appellant. 1. In addition, the appellant sought to adduce the following evidence: her mother's will, a letter from Owen Hodge Lawyers dated 14 March 2016 confirming that the appellant had cancelled an appointment for 24 November 2015 for ZCC to sign an Appointment of Enduring Guardian and a medical report from the appellant's general practitioner dated 6 April 2016. 2. Parties are generally bound by the manner in which the proceedings were conducted at first instance: Rowe v Australian Steam Navigation Co Ltd [1909] HCA 25; (1909) 9 CLR 1 per Isaacs J at 24. 3. The Appeal Panel of the Administrative Decisions Tribunal summarised the relevant principles about adducing fresh or further evidence in Building Professionals Board v Hans (GD) [2008] NSWADTAP 13 (12 March 2008) at [52] to [57]. The second of those principles is the most relevant to this case: 54 Secondly, if the Appeal Panel is to exercise its discretion in favour of the party applying for leave, it must be 'affirmatively satisfied' that, having regard to the findings of the Tribunal at first instance, the further evidence , if tendered at the hearing conducted by the Tribunal was 'likely to have produced a different result'. This criterion appears in the paragraph just quoted from CDJ v VAJ. The applicant for leave does not have to show that if the evidence had been put before the Tribunal, an 'opposite result would have been produced' or it would have been 'unreasonable to suppose the contrary' (see the passage from Council of the City of Greater Wollongong v Cowan that the Appeal Panel in Young quoted at [21]). But it is not enough merely to show that the further evidence is 'useful', or that its admission would have given rise to a 'real chance' that the Tribunal would have reached a different decision (see CDJ v VAJ at [151]; Young at [31]). 1. The authorities make it clear that any such evidence must relate to the Tribunal's decision at first instance and must be evidence which was relevant at that time to that decision. The Court of Appeal reached the same conclusion in Gianoutsos v Glykis (2006) NSWCCA 137. 2. None of the evidence that the appellant sought to tender was 'likely to have produced a different result'. The Tribunal would still have had to exercise the discretion under s 14(2) and make relevant findings of fact under s 17 of the Guardianship Act. For that reason we refuse leave for the appeal to be made on grounds other than a question of law. 3. We have decided to set aside the Tribunal's decision to make a guardianship order and direct the Tribunal to reconsider that application. The re-consideration should take place with the benefit of further evidence because it is ZCC's best interests for the most comprehensive and up-to-date evidence to be available when considering the application. Orders 1. The appeal from the decision to make a guardianship order in respect of ZCC for 12 months is allowed. 2. The decision in (1) above is set aside. 3. The application for a guardianship order is to be reconsidered by the Tribunal with further evidence. 4. The appeal from the decision that the estate of ZCC be subject to management under the NSW Trustee and Guardian Act 2009 is dismissed. 5. Leave is refused for the appellant to appeal on grounds other than a question of law. ******** 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: 26 August 2016