Civil and Administrative Tribunal New South Wales Medium Neutral Citation: ZDP v ZDQ [2017] NSWCATAP 204 Hearing dates: 01 June 2017 Date of orders: 24 October 2017 Decision date: 24 October 2017 Jurisdiction: Appeal Panel Before: M Schyvens, Deputy President C Fougere, Principal Member G Jamieson, Senior Member Decision: (1) Appeal dismissed. Catchwords: APPEAL – Appeal from orders made by Guardianship Division – decision to dismiss application for financial management order – no denial of procedural fairness – decision not against weight of evidence – appeal dismissed. Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), cl 14(1)(b) of Sch 6, ss 36(1), 38(2), 38(5)(c), 80(2)(a)-(b) Guardianship Act 1987 (NSW), s 25G Cases Cited: BTD v NSW Trustee and Guardian [2015] NSWCATAP 87 Clements v Independent Indigenous Advisory Committee [2003] FCAFC 143 C v W [2015] NSWSC 1774 Coffey v Coffey (No. 2) [2015] NSWSC 338 Collins v Urban [2014] NSWCATAP 17 F v NSW Trustee and Guardian [2017] NSWSC 1319 H v H [2015] NSWSC 837 Italiano v Carbone [2005] NSWCA 177 John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Mifsud v Campbell (1991) 21 NSWLR 725 Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24 Murphy v Doman (2003) 58 NSWLR 51 Neill v Not [1994] HCA 23 P v NSW Trustee and Guardian [2015] NSWSC 579 SAB v SEM [2013] NSWSC 253 Scott v Scott [2012] NSWSC 1541 Texts Cited: Nil Category: Principal judgment Parties: ZDP (Appellant) ZDQ (First Respondent) ZDT (Second Respondent) ZDS (Third Respondent) NSW Trustee and Guardian (Fourth Respondent) Representation: N Danis (Separate representative) File Number(s): AP 17/02185 Publication restriction: Disclosure of the names of the appellant and the first, second and third respondents 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: NSW Civil and Administrative Tribunal Jurisdiction: Guardianship Division Citation: Not applicable Date of Decision: 1 December 2016 Before: A Suthers, Senior Member H Creasey, Senior Member L Porter, General Member File Number(s): C/61267 REASONS FOR DECISION Introduction 1. ZDP, the appellant in these proceedings, appeals against the decision made by the Guardianship Division of the NSW Civil and Administrative Tribunal (the Tribunal) on 1 December 2016 to dismiss the application for a financial management order made by him in relation to his father, ZDQ (the first respondent). 2. At the time of the appeal hearing, ZDQ was a 77-year-old man of Chinese background who has two children: ZDP and his eldest son, ZDT (the second respondent). 3. ZDQ's wife, ZDS (the third respondent), lives in a nursing home and as a result of injuries sustained in a car accident in 2014, was unable to take part in the proceedings before the Guardianship Division or in the appeal. 4. In these reasons, ZDP will be referred to as the "appellant". ZDT will be referred to as the "elder son". 5. For the reasons that follow, we have decided to dismiss the appeal. The proceedings at first instance 1. In October 2014, ZDQ was a passenger in a serious motor vehicle accident. Injured in the accident were ZDQ, his wife ZDS, and their elder son who was the driver of the vehicle. 2. ZDQ sustained serious physical injuries and a traumatic brain injury. 3. Prior to the accident, ZDQ and his wife lived primarily with the appellant and the appellant's family. 4. Since the accident, other than a period of hospitalisation, ZDQ has lived with his elder son and his elder son's family. 5. The application made by the appellant to have a financial management order made for his father first came before the Tribunal on 10 February 2016. At the conclusion of the hearing, the Tribunal made a three-month interim financial management order pending further consideration of ZDQ's capability to manage his own affairs. ZDQ's estate was committed to the management of the NSW Trustee and Guardian for the period of the interim order. At the same time, the Tribunal adjourned the underlying application for a financial management order for three months. 6. ZDQ and his elder son appealed the Tribunal's decision in the NSW Supreme Court. The appeal was mentioned on 22 August 2016 and a transcript of those proceedings was before us in the appeal. From the transcript the appeal was dismissed on the basis that the three-month interim order made by the Tribunal on 10 February 2016 had already expired and there was therefore no utility in proceeding with hearing the appeal. 7. Following directions made by the Tribunal on 22 September 2016, the adjourned financial management application was listed for hearing before a differently constituted Tribunal panel on 1 December 2016. 8. The Reasons for Decision for the hearing on 1 December 2016 outline the evidence provided by each of the parties including ZDQ who attended the hearing in person. The appellant and elder son also took part in the hearing. 9. A separate representative had been appointed for ZDQ and also participated. 10. Section 25G of the Guardianship Act 1987 (NSW) (the Act) sets out the circumstances in which the Tribunal may make a financial management order. 25G Grounds for making financial management order The Tribunal may make a financial management order in respect of a person only if the Tribunal has considered the person's capability to manage his or her own affairs and is satisfied that: (a) the person is not capable of managing those affairs, and (b) there is a need for another person to manage those affairs on the person's behalf, and (c) it is in the person's best interests that the order be made. 1. The Reasons for Decision indicate that the Tribunal focussed on the first limb of s 25G of the Act and determined that it was not satisfied on the evidence before it that ZDQ was incapable of managing his affairs. The Tribunal dismissed the application. Notice of appeal and interlocutory matters 1. The appellant filed a Notice of Appeal dated 15 January 2017 and sought orders that a financial management order should be made for his father appointing the NSW Trustee and Guardian. 2. The appeal was first listed for hearing on 4 May 2017. The appellant and the elder son appeared in person at the appeal but ZDQ did not. 3. On that occasion, the elder son provided the Appeal Panel with a letter stated to be from ZDQ advising that he would not be participating in the hearing as he was "tired, fatigued and depressed". 4. The Appeal Panel attempted to contact ZDQ by telephone but was unsuccessful. 5. The Appeal Panel decided to adjourn the hearing of the appeal for approximately one month and ordered that ZDQ be separately represented so that ZDQ could be assisted in his participation in the proceedings or to otherwise provide a mechanism for his views on the proceedings to be before the Appeal Panel. 6. A differently constituted Appeal Panel convened on 1 June 2017. A separate representative for ZDQ participated in the appeal as did the appellant. 7. Neither ZDQ nor his elder son attended the appeal hearing. 8. We were provided with a document purportedly from ZDQ written in Chinese dated 31 May 2017. The accredited interpreter who had been arranged by the Tribunal for the appeal hearing translated the contents of the document into English. We understood that the main points made by ZDQ in the document were that he did not intend to attend at the appeal proceedings, he wanted the appeal to be dismissed, he is able to manage his own affairs, that he did not wish to communicate with the separate representative and that there was no responsibility on him to do so. 9. The appellant told us that although he agreed that the document was in his father's handwriting, he believed that the content of the document was the result of the elder son's influence over ZDQ and that his father would not have written the letter of his own accord. 10. Nevertheless, the appellant did not seek another adjournment of the appeal hearing as he was of the view that his father would not appear in any Tribunal proceedings again. He submitted that we should proceed with the appeal. 11. The separate representative told us that she had been unable to make contact with ZDQ prior to the appeal hearing and attributed the difficulty in doing so to the actions of the elder son. However, she also submitted that the appeal should proceed in ZDQ's absence. 12. We decided not to take any further steps to contact ZDQ in light of what we understood of the 31 May 2017 material given to the Tribunal and having regard to the submission made by the separate representative that the appeal should proceed in ZDQ's absence. 13. We also had correspondence from the elder son indicating that he did not intend to take part in the hearing of the appeal on 1 June 2017. The elder son relied on the written material he had submitted in response to the Notice of Appeal. The elder son's position was that the appeal should be dismissed. 14. We were satisfied that the elder son had notice of the hearing date of the appeal but that he did not wish to participate in the hearing and did not wish to make oral submissions. We decided to proceed in his absence. 15. The NSW Trustee and Guardian did not take part in the appeal. Grounds of appeal 1. Under the heading "Grounds of appeal", the appellant provided 10 paragraphs. A number of these (paragraphs 5, 6, 7, 9 and 10) were in the nature of commentary and submissions rather than identifiable grounds of appeal. Paragraph 8 requested a stay of the decision below. The appellant's request for a stay was dealt with, and dismissed, by a differently constituted Appeal Panel on 17 January 2017. 2. It was difficult for us to discern from the remaining stated grounds the precise nature of the appellant's arguments. As the appellant was unrepresented, we assisted him to define his grounds of appeal following further clarification by him at the appeal (see Neill v Not [1994] HCA 23). As a result, we understood his appeal grounds to be as follows: 1. The conduct of hearing was procedurally unfair to the appellant (Ground 4) 2. The finding that ZDQ is not incapable of managing his affairs was against the weight of the evidence (Ground 1) 3. The Tribunal should have found that it was in ZDQ's best interests to have a financial management order because he was vulnerable to exploitation by his elder son (Ground 3) 4. Fresh medical evidence would support a finding that ZDQ is incapable of managing his affairs (Ground 2) 1. The ground set out at (d) in the preceding paragraph may be disposed of on the basis that there was no new or fresh assessment evidence before us concerning ZDQ's capacity. It seemed from the submissions made by the appellant that he wished to have this evidence brought into existence or believed that it may be at future date brought into existence as a result of the legal proceedings arising from his father's accident. This appeal was not, however, a vehicle for doing so and this ground was not established. 2. Other than the assertion of a denial of procedural fairness, we were unable to identify any other potential questions of law from the appellant's material (John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69, [13] to [18]). Scope and nature of appeal 1. A party's right to appeal against decisions and orders of the present kind is restricted to 'questions of law'. It may be extended to 'other grounds' with the leave of the Appeal Panel. See Civil and Administrative Tribunal Act 2013 (NSW) (the CAT Act), s 80(2)(b). 2. There are time limits within which a Notice of Appeal must be filed. We were satisfied that the Notice of Appeal in this matter was filed within the requisite time period. Submissions and consideration Denial of procedural fairness (Ground 4) 1. A denial of procedural fairness is a question of law: Italiano v Carbone [2005] NSWCA 177; Clements v Independent Indigenous Advisory Committee [2003] FCAFC 143 at [8]; John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [13(4)]. 2. Accordingly, if a denial of procedural fairness is established, the appellant has a right to appeal and leave to appeal is not required (CAT Act, s 80(2)(a)). 3. The first way that the Tribunal was said by the appellant to have denied him procedural fairness was by having a pre-determined view that ZDQ was capable of managing his finances. The appellant referred us to the following paragraphs of the Reasons for Decision to support his position: 31 Every person who is the subject of an application is presumed to have capacity to make their own decisions, until the Tribunal receives sufficient evidence to rebut that presumption. … 77 The Tribunal, though, must apply the presumption that [ZDQ] can manage his own financial affairs. There is no medical evidence prepared within the last fourteen months which contradicts the presumption that [ZDQ] can manage his own finances, or exercise free will. 1. Although not put in these precise terms, we understood the appellant to assert that having pre-determined the issue of ZDQ's capability, the Tribunal did not bring an impartial mind to the hearing and the appellant was therefore not given a fair hearing. 2. The second way that the Tribunal was said by the appellant to have denied him procedural fairness was by preventing him from presenting his case fully. This aspect of the ground of appeal was not made explicit in the Notice of Appeal or written submissions of the appellant, but was raised by the appellant in oral submissions at the appeal hearing. According to the appellant, the Tribunal members interrupted him to such an extent that he was unable to put all of his evidence forward as to his father's vulnerability and exploitation by the elder son and the elder son's wife. He was able to put some of this evidence before the Tribunal that made the interim financial management order on 10 February 2016 and the Reasons for Decision of that Tribunal panel made reference to this evidence, but he was not able to do so because of the unfair way that the Tribunal on 1 December 2016 conducted the hearing. 3. The written replies by ZDQ and the elder son did not specifically reply to this aspect of the ground of appeal. This is unsurprising given that this aspect of the ground of appeal was not explicitly raised in the Notice of Appeal or in the appellant's written submissions. Consideration 1. Section 38(2) of the CAT Act states: 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. 1. Section 38(5)(c) of the CAT Act states: The Tribunal is 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. 1. The obligation of the Tribunal to accord procedural fairness in relation to Guardianship Division proceedings is summarised in BTD v NSW Trustee and Guardian [2015] NSWCATAP 87 (at [14]–[15]) as follows: 14 The Guardianship Division is required to comply with the rules of procedural fairness, which are also known as the rules of natural justice: NCAT Act, s 38(2). Those rules require that a person be afforded a fair and unbiased hearing before decisions are taken which affect them: Aronson, Dyer and Groves, Judicial Review of Administrative Action, (5th ed 2013 LawBook Co) at 397. In particular the hearing rule, which is an element of procedural fairness, requires that a decision-maker hear a person before making a decision affecting their interests. McHugh J spoke generally of this rule in Re Refugee Tribunal; ex parte Aala [2000] HCA 57; (2000) 75 ALJR 52 at 73: … One of the fundamental rules of the fair hearing doctrine is that a decision-maker should not make an adverse finding relevant to a person's rights, interests or legitimate expectations unless the decision-maker has warned that person of the risk of that finding being made or unless the risk necessarily inheres in the issues to be decided. It is a corollary of the warning rule that a person who might be affected by the finding should also be given the opportunity to adduce evidence or make submissions rebutting the potential adverse finding (Mahon v Air New Zealand Ltd [1983] UKPC 29; [1984] AC 808 at 820-821.) 15 The content of the hearing rule must be "appropriate and adapted to the circumstances of the particular case": Kioa v West [1985] HCA 81; (1985) 159 CLR 550 per Mason J at 585. The Guardianship Division's jurisdiction is a protective one. One of its primary aims is to protect vulnerable people from neglect, abuse and exploitation: The Act 1987 (NSW), s 4(g). But that is not its only obligation. The Guardianship Division of the Tribunal is also obliged to ensure that people who are parties to applications receive a fair hearing from an impartial decision-maker. The Tribunal is obliged to disclose to parties who have an interest in the proceedings, the substance of any adverse or prejudicial information and give them a reasonable opportunity to respond: KV v Protective & Ors; KW & Ors v KV & Ors (No.2) [2004] NSWADTAP 48. 1. In determining whether the appellant was denied procedural fairness, we had to consider whether he received a "fair hearing from an impartial decision maker". We have concluded that he did receive such a hearing. 2. The common law presumption that a person of full age is capable of managing his or her affairs unless the presumption is rebutted is well established (Murphy v Doman (2003) 58 NSWLR 51, [34]–[36] (per Handley JA); Scott v Scott [2012] NSWSC 1541, [233]; Coffey v Coffey (No. 2) [2015] NSWSC 338, [15]-[19]). 3. Despite the appellant's arguments, we can see nothing in the written Reasons for Decision to support a view other than the Tribunal was commencing its consideration of the application of s 25G of the Act from the correct starting point, namely, that ZDQ is presumed to be capable of managing his affairs. 4. The first aspect of the appellant's assertion that he was denied procedural fairness is not made out. 5. In relation to the second way that the Tribunal was said by the appellant to have denied him procedural fairness, namely, that because of the manner in which it conducted the hearing it did not allow him to present evidence to the Tribunal of the way in which the elder son and the elder son's wife had exploited ZDQ and ZDQ's actual vulnerability, we note that at a callover on 14 February 2017, a direction was made that the appellant was to give to the Tribunal and the respondent by 28 February 2017 "the sound recording of the hearing at first instance, if what happened at the hearing is being relied on" (Direction 2(d)). 6. The appellant did not provide a transcript of the proceedings below or an audio recording of those proceedings and he could not explain why he had not done so in light of his argument on this ground of appeal. Towards the conclusion of the appeal hearing, the appellant sought an adjournment so that he could do so albeit that he also suggested that the separate representative could obtain the transcript. The separate representative declined to do so. 7. We decided not to adjourn the hearing as requested by the appellant given that he had been on notice since February 2017 of the relevant directions and he did not have an adequate explanation as to why he had not filed, at the very least, a sound recording of the hearing below. We also note that the other parties did not have notice of the appellant's assertions in this regard and it would not facilitate the "just, quick and cheap resolution of the real issues in the proceedings" if the adjournment were granted (CAT Act, s 36(1)). 8. There was nothing before us, other than the appellant's assertion, that the manner in which the Tribunal conducted the hearing below prevented him from presenting his case and that he was denied a fair hearing. The second aspect of the appellant's assertion that he was denied procedural fairness is not made out. 9. The ground of appeal relating to a denial of procedural fairness is not established. Other grounds of appeal 1. The appellant is entitled to appeal on grounds other than a question of law but must first obtain the Tribunal's permission or leave (CAT Act, s 80(2)(b)). 2. The principles which govern the granting of leave to appeal pursuant to s 80(2)(b) of the CAT Act are set out in Collins v Urban [2014] NSWCATAP 17 at [84]. The particular considerations relevant to the granting of leave in a protective jurisdiction are explained in a number of decisions (P v NSW Trustee and Guardian [2015] NSWSC 579, [190]–[198]; F v NSW Trustee and Guardian [2017] NSWSC 1319, [41]; SAB v SEM [2013] NSWSC 253, ([8]–[10]). 3. In SAB v SEM [2013] NSWSC 253, White J considered the principles which applied to an appeal to the Supreme Court from a decision of the then NSW Guardianship Tribunal: [8] Without intending to be exhaustive, the considerations governing a determination as to whether leave should be given will include whether or not a question raised involves a matter of administration or policy which might have general application, whether or not the Tribunal's decision has been arrived at after the Tribunal members have directed themselves properly and fairly on the facts and not gone wrong in law, whether there is an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand, and whether the factual error was unreasonably arrived at and clearly mistaken. (See K v K at [14] and Slinko v Guardian Administration Tribunal at [9]-[16]) [9] Underlying these constraints is the need to recognise that Parliament has entrusted to the Tribunal the primary function of making the factual determinations required for a guardianship order, and that the Court should not grant leave to appeal unless the Tribunal has gone about that fact finding process in a way which is so unorthodox as to be likely to produce an unfair result. It is not enough that a judge might consider that he or she would have reached a different conclusion on the facts from the conclusion reached by the Tribunal. [10] The grant or withholding of leave is to be exercised having regard to the general principles in s 4 of the Act, including the principle that the welfare and interests of the person with disabilities is to be given paramount consideration. But that is not to say that the gateway requiring leave to appeal can be emasculated by the Court's too readily engaging in a detailed review of the facts with a view to detecting possible error. 1. In C v W [2015] NSWSC 1774, when discussing the principles relating to the granting of leave by the Court under cl 14(1)(b) of Sch 6 to the CAT Act, Lindsay J (at [44]–[46]) stated, relevantly, that [44] Secondly, if leave is to be granted pursuant to clause 14(1)(b) for an appeal on a ground other than a question of law, the Court generally needs to be satisfied that there is a question of principle or policy, or a manifest error in the decision or decision-making process under review, which merits a grant of leave: Collins v Urban [2014] NSWCATAP 17 at [82]-[84], qualified, in cases involving an exercise of the Court's protective jurisdiction, by observations made in P v NSW Trustee and Guardian [2015] NSWSC 579 at [191]. Was the finding that ZDQ is not incapable of managing his affairs against the weight of the evidence? (Ground 1) 1. The appellant submitted, as we understood it, that the Tribunal relied on professional reports prepared for the purposes of ZDQ's claim in relation to the Lifetime Care and Support scheme in reaching the conclusion that ZDQ was not incapable of managing his affairs. According to the appellant, the Tribunal should not have done so as these were prepared for a different purpose to the matters under consideration before the Tribunal and did not accurately reflect ZDQ's true capacity. There was, according to the appellant, other evidence that the Tribunal should have placed greater weight on that establishes that ZDQ is incapable of managing his affairs. 2. The following documents formed part of the evidence referenced by the Tribunal in its written Reasons for Decision: * Report dated 16 January 2015 prepared by Dr Z, Neuropsychologist (Dr Z's report) * Report dated 11 February 2015 prepared by Dr Y, Director of Rehabilitation Medicine at a public hospital in NSW (Dr Y's report) * Report dated 25 March 2016 prepared by Dr X, Psychiatrist (Dr X's report) * Report dated 8 August 2016 prepared by Ms W, Occupational Therapist of an occupational therapy organisation (Ms W's report) * Report dated 30 August 2016 prepared by Dr V, Consultant Physician in Rehabilitation Medicine (Dr V's report) 1. Two of these reports (Ms W's report and Dr V's report), as we understood the evidence, were prepared as a result of a referral by an insurance company in relation to ZDQ's CTP claim. 2. In relation to Dr V's report, the appellant drew our attention to the following conclusion reached by Dr V, and which was quoted and relied upon by the Tribunal at [49] of its Reasons for Decision: [ZDQ] has sustained a severe traumatic brain injury based on the information provided however, he has made an excellent and surprisingly good recovery and the impairment related to this is zero percent whole person impairment. 1. Accordingly to the appellant, the conclusion reached in Dr V's report was made on a commercial basis (Attachment A to Notice of Appeal, paragraph 2.2) and the Tribunal should have accordingly given it limited weight. 2. The appellant was also critical of the report prepared by Ms W and the reliance the Tribunal placed on it (at [43]–[46]) and in particular the following conclusion quoted by the Tribunal at [47]: The report concludes that "overall the OT did not find any functional cognitive limitations that would impact on [ZDQ] managing his activities of daily living considering the injuries sustained from the motor vehicle accident". 1. Nevertheless, the appellant also highlighted, and agreed with, a comment made by the author in the same report that: [ZDQ] will be capable of managing his own ATM needs but the Occupational Therapist believes an independent, Mandarin speaking financial adviser needs to be appointed so [ZDQ] retains control over his finances. 1. This latter comment was not specifically referred to in the Tribunal's Reasons for Decision. As we understood the appellant's submission, the Tribunal should have taken this into account and formed the view that ZDQ was vulnerable and needed an independent manager. 2. The separate representative queried whether the Tribunal should have relied as much as it did on the assessments prepared in relation to the CTP claim given that they were assessments prepared for a different issue. The separate representative also noted that in raising this concern, she was not certain that it would warrant granting the relief that the appellant seeks in the appeal. Consideration 1. There are a number of difficulties with the conclusions that the appellant submitted we should reach concerning the manner in which the Tribunal dealt with the evidence contained in these reports. 2. There was no material put before us, for example by way of audio recording or transcript, to show that the appellant argued before the Tribunal below that limited weight should be given to the reports of Dr V and Ms W for the reasons outlined by the appellant. 3. However, even if it were to be accepted for the sake of argument that limited weight should have been given to the content of these two reports for the reasons given by the appellant, there was other evidence before the Tribunal concerning ZDQ's capability for decision making that the Tribunal made reference to in its written reasons and which was unrelated to the issue of ZDQ's entitlements, or otherwise, under the Lifetime Care and Support scheme. 4. This other evidence includes the evidence contained within the reports of Dr Z, Dr Y and Dr X. 5. The Tribunal below noted that Dr Z's report was prepared approximately two months after the motor vehicle accident in which ZDQ sustained his injuries, that ZDQ "had cognitive deficits because of the accident and [Dr Z] felt that this was consistent with his traumatic brain injury" (at [6]) and that "spontaneous cognitive recovery was 'likely to be slower from here on, although he may continue to improve over the next 12 months or so'" (at [7]). 6. The Tribunal also made reference to the content of the subsequent reports of Dr Y (at [38] of the written Reasons for Decision) and Dr X, Psychiatrist (at [40]-[42] of the written Reasons for Decision). 7. The Tribunal noted (at [41]) the opinion expressed in Dr X's report that "there was no available evidence to suggest that [ZDQ] has impaired financial management capacity" and (at [42]) that "[ZDQ] had no signs or symptoms indicative of cognitive impairment". In his submissions to us, the appellant suggested that the Tribunal below had "missed" a supplementary report authored by Dr X dated 24 May 2016 and that the view expressed by Dr X in the later report "overturned" the view he expressed in the earlier report. 8. We do not accept that this is a correct view of the evidence. In the later report Dr X seeks to clarify that a comment in his earlier report about ZDQ's ability to function independently since his accident was incorrect but makes the express point that his first report was not aimed at assessing ZDQ's physical daily functioning level and that if such an assessment was required, it should be conducted by a different health professional. Dr X did not retract any of the conclusions he reached in his earlier report concerning ZDQ's cognition. The Tribunal below was not in error by failing to make reference to Dr X's later report particularly as it did not report on the issue of ZDQ's cognition. 9. The views expressed in the reports of Dr Y and Dr X concerning ZDQ's cognitive capacity are consistent with the view expressed in the reports of Dr V and Ms W. 10. The appellant was also critical of the weight that the Tribunal placed on the views expressed in these reports on the basis that ZDQ underwent the assessments that formed the basis of those reports in the company of his elder son who had "influence and control" over ZDP (Attachment A to the Notice of Appeal). 11. The appellant drew our attention to Ms W's report in which the author noted that the elder son "yelled at his father twice during the assessment and called his father a liar". The appellant's submission was that ZDQ's performance on testing would have been affected by the control and influence exerted by his elder son. 12. We also note, however, that the report of Dr X dated 25 March 2016 specifically states that ZDQ "sat in the interview by himself and was comfortable". 13. The contents of the reports also indicate that Mandarin interpreters were present at the assessments conducted by Dr Z, Ms W, and Dr V. 14. The appellant clearly raised a similar concern in the Tribunal proceedings and the Tribunal addressed (at [58]-[60]) the concern as follows: 58 [The appellant] drew the Tribunal's attention to various references in the reports which indicate [the elder son] was present for and interjected in some investigations in relation to his father's cognition (including yelling at [ZDQ] when he did not provide information to the doctors) and the earlier reports of concern about [ZDQ's] cognitive capacity (as well as part of a more recent ophthalmic surgeon's report where they were referred to). He also referred to what was described as his father's "lethargy" as documented in earlier reports. 59 When asked, though, whether there was anything in the more recent reports which indicated from a medical perspective that [ZDQ] has impaired capacity for making financial decisions, there was nothing which [the appellant] pointed to in reports from the last fourteen months which the Tribunal was satisfied was indicative of [ZDQ] having any incapacity for managing his finances. 60 [The appellant] acknowledged that he had not had an opportunity to interact with his father, or observe how he manages his money for about a year. 1. The appellant also submitted that the Tribunal should have placed greater weight on evidence of actual exploitation of ZDQ by ZDQ's elder son and the elder son's wife which would have, on the appellant's case, established ZDQ's incapability. The evidence that the appellant relies on to establish this is detailed in Attachment B to the Notice of Appeal. According to the appellant, this evidence was accepted by the Tribunal who made the interim financial management order on 10 February 2016 and should have been given greater weight by the December 2016 Tribunal than the medical evidence that it relied on. 2. We note that the Tribunal who made the interim financial management order on 10 February 2016 stated in the Reasons for Decision (at [60]) that it "was unable to find any certain evidence that [ZDQ] has been exploited". We also note that the Tribunal whose decision is the subject of this appeal specifically addressed an allegation made by the appellant of actual exploitation of his father by the elder son (at [69]–[71]). It is not necessary for a decision maker to refer in detail to all evidence and indicate which of it is accepted or rejected. Rather, it is only necessary to record the evidence and findings thereon which are critical to an issue in a case (Mifsud v Campbell (1991) 21 NSWLR 725, 728 (Samuels JA, Clarke JA, and Hope AJA concurring). 3. Significantly, in our view, the Tribunal also had the benefit of hearing directly from ZDQ at the hearing on 1 December 2016 and ascertaining his views about the application. A summary of ZDQ's evidence is set out at [50]–[55] of the written Reasons for Decision. The Tribunal was clearly cognisant of what it described as the "issue of risk of undue influence which the Tribunal needed to consider" (at [65]). ZDQ was also specifically asked by the Tribunal for his views about the elder's son's role in assisting ZDQ to manage his affairs. ZDQ's response is set out at [66]. 4. On the basis of this evidence, the Tribunal concluded (at [77]–[80]) 76 There are issues of concern within the dynamic of this family for the Tribunal. [The elder son] has a forceful and potentially overbearing personality. Undoubtedly, then, [ZDQ] is potentially vulnerable to financial exploitation given his age, and the recent traumas in his life. 77 The Tribunal, though, must apply the presumption that [ZDQ] can manage his own financial affairs. There is no medical evidence prepared within the last fourteen months which contradicts the presumption that [ZDQ] can manage his own finances, or exercise free will. 78 [ZDQ's] own presentation was also indicative of him having the ability to manage his finances affairs, even if he decides to then largely delegate that issue to [the elder son]. 79 There are, of course, infinitely variable arrangements which families put in place in relation to their interpersonal affairs. It is not for the Tribunal to judge whether [the elder son] is a sound or appropriate person for [ZDQ] to place his trust in, if [ZDQ] can understand that decision, weigh his options and make that decision freely and voluntarily. 80 There is insufficient evidence before the Tribunal to satisfy it that is not the case. 81 The Tribunal was not satisfied that [ZDQ] is incapable of managing his financial affairs. On that basis, the application was dismissed. 1. The weight to be given to evidence is a question of fact. As Mason J explained in Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24 at [40]: It is generally for the decision-maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power. 1. We do not consider that the finding that ZDQ was not incapable of managing his affairs was against the weight of the evidence. This was a difficult matter particularly given the strongly and genuinely held views of the appellant. However, it is evident from the written Reasons for Decision that the Tribunal undertook a careful analysis of the evidence and not only had the benefit of the health professional evidence filed in the case and the views of family members, but also importantly, heard evidence directly from ZDQ. As noted in H v H [2015] NSWSC 837, [37] (Lindsay J): [i]f in doubt, there is no substitute for a direct, personal engagement with the person whose capacity for self-management is under consideration, and those closely associated with him or her in daily living. 1. We conclude that there was no question or principle or policy raised, or manifest error in the decision or decision making process under review, which merits a grant of leave (C v W [2015] NSWSC 1774, [44]; Collins v Urban [2014] NSWCATAP 17, [82]–[84]). 2. This ground of appeal is not established. Should the Tribunal have found that it was in ZDQ's best interests to have a financial management order because he was vulnerable to exploitation by his elder son? (Ground 3) 1. As previously noted, the Tribunal specifically considered the allegations made by the appellant as to his father's vulnerability to financial exploitation by the elder son. This evidence was considered in the context of considering ZDQ's capability to manage his own affairs and the Tribunal's findings as to this issue are set out in its Reasons for Decision (at [76]–[81]). 2. Given the conclusion that it reached in relation to the first limb of s 25G of the Act, the Tribunal was not required to proceed to consider whether it was in ZDQ's best interests that a financial management order is made. 3. There was no question or principle or policy raised, or manifest error in the decision or decision making process under review, by the Tribunal taking this course. 4. This ground of appeal is not established. Orders 1. The appeal is dismissed. ********** 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: 24 October 2017