Civil and Administrative Tribunal New South Wales Medium Neutral Citation: DHQ v DHR [2018] NSWCATAP 128 Hearing dates: 29 March 2018 Date of orders: 25 May 2018 Decision date: 25 May 2018 Jurisdiction: Appeal Panel Before: A Britton, Principal Member L Dive, Senior Member A Lowe, General Member Decision: 1. The time to lodge the notice of appeal is extended to 30 January 2018. 2. The appeal is dismissed. Catchwords: HUMAN RIGHTS — whether the Tribunal in reviewing a financial management order was properly constituted in accordance with cl 4 of Sch 6 to the Civil & Administrative Tribunal Act 2013 (NSW) PROCEDURAL FAIRNESS — bias — actual bias HUMAN RIGHTS — whether decision was unreasonable — whether decision lacked an intelligible justification Legislation Cited: Administrative Decisions Review Act 1997 (NSW) Civil & Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Guardianship Act 1987 (NSW) NSW Trustee and Guardian Act 2009 (NSW) Cases Cited: ABT v NSW Trustee and Guardian & ors [2011] Administrative Decisions Tribunal, 118003 (unreported, Hennessey, N, Goodchild, L, Field, B, 22 June 2011) Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1 GAR v Attorney General of New South Wales (No 2) [2017] NSWCA 314 Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 Jia v Minister for Immigration and Multicultural Affairs (1998) 84 FCR 87 Minister for Immigration & Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437 Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 Oswal v Commissioner of Taxation [2015] FCA 1439 P v NSW Trustee and Guardian [2015] NSWSC 579 South Western Sydney Area Health Services v Edmonds [2007] NSWCA 16 ZBC v ZBD [2016] NSWCATAP 264 ZGM v ZGN [2018] NSWCATAP 101 Texts Cited: M Aronson and M Groves, Judicial Review of Administrative Action, (Lawbook Co, 5th ed, 2013) M Aronson, M Groves and G Weeks, Judicial Review of Administrative Action and Government Liability (Thomson Reuters, 6th ed, 2017) Category: Principal judgment Parties: DHQ (Appellant) DHR (First Respondent) Public Guardian (Second Respondent) NSW Trustee and Guardian (Third Respondent) Representation: Appellant (In person) M Warren, solicitor, guardian ad litem (First Respondent) File Number(s): AP 18/05641 Publication restriction: Pursuant to s 65(1) of the Civil & Administrative Tribunal Act 2013 the publication or broadcast of the name of any person who is mentioned or is otherwise involved in this matter, is prohibited. Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Guardianship Division Citation: n/a Date of Decision: 25 August 2017 Before: J Anderson, Senior Member File Number(s): 2009/00475426 REASONS FOR DECISION 1. The appellant cares deeply for his 91 year-old sister, who is extremely unwell and resides in an aged care facility. He appeals from a decision made by the Guardianship Division of the NSW Civil and Administrative Tribunal (NCAT) in August 2017 confirming an order made five months earlier to commit the management of his sister's estate to the management of the NSW Trustee and Guardian (the Trustee). 2. For the reasons that follow, we have decided to dismiss the appeal. Publication of the names of the parties 1. The publication or broadcast of the name of any person who is mentioned or is otherwise involved in an "internal appeal" against decisions made by the Guardianship Division of NCAT, is prohibited: s 65(1) of the Civil & Administrative Tribunal Act 2013 (NSW) (NCAT Act). Being an official report of the appeal proceedings, that prohibition does not apply to these reasons for decision: s 65(3) of the NCAT Act. Nonetheless, because of the sensitive nature of the matters raised in these proceedings, we have decided not to publish in these reasons any details that may identify the parties. 2. In this appeal, the appellant and his sister, the subject of the financial management order, have been assigned pseudonyms, respectively, "DHQ" and "DHR". However, for ease of reading, in these Reasons we will refer to the appellant and his sister as "the appellant" and "the subject person", respectively. Background to the appeal 1. In December 2010, one of NCAT's predecessors, the Guardianship Tribunal of NSW, made a guardianship order in respect of the subject person, appointing the Public Guardian to make decisions about services. In addition, the Guardianship Tribunal made a reviewable financial management order committing the management of the subject person's estate to the NSW Trustee. Both orders were made for a period of six months. They were the first in a series of orders made under the Guardianship Act 1987 (NSW), by the Guardianship Tribunal and later NCAT in respect of the subject person. 2. The appellant successfully appealed from these decisions to the Administrative Decisions Tribunal of NSW (the ADT): ABT v NSW Trustee and Guardian & ors [2011] Administrative Decisions Tribunal, 118003 (unreported, Hennessey, N, Goodchild, L, Field, B, 22 June 2011). The ADT set aside each decision and remitted the initiating application to the Guardianship Tribunal for redetermination. 3. On remittal, in August 2011, the Guardianship Tribunal made a guardianship order in respect of the subject person, appointing the Public Guardian for a period of 12 months to make decisions about healthcare and services. The Tribunal dismissed the application for a financial management order. 4. In November 2012, the Guardianship Tribunal reviewed the guardianship order, as required by s 25(2) of the Guardianship Act, and decided to permit the order to lapse. 5. In January 2017, the subject person was admitted to Manly Hospital with a serious illness. The following month she was transferred to an aged care facility to receive respite care. On 3 April 2017, the appellant discharged his sister from hospital against medical advice. Ten days later, she was readmitted to hospital. In May 2017, against the strong opposition of the appellant, the subject person was transferred to an aged care facility, where she resides to this day (the Facility). 6. On 24 May 2017, following an application made by a care co-ordinator employed by Northern Beaches Community Care, the Guardianship Division of NCAT made a guardianship order in respect of the subject person appointing the Public Guardian and giving an accommodation function. In addition the Tribunal made a financial management order committing the management of the subject person's estate to the NSW Trustee. The Tribunal made both orders reviewable and for a term of three months. Neither the appellant nor the subject person attended the hearing when these orders were made. 7. In August 2017, following the end-of-term review of the guardianship and financial management orders made in May 2017, the Tribunal (constituted by Senior Member, J Anderson) confirmed the financial management order made in May 2017 (the decision under appeal). In addition, the Tribunal renewed and varied the May 2017 guardianship order, making a guardianship order for a term of nine months, appointing the Public Guardian and conferring an accommodation function. 8. The appellant opposed the renewal of the guardianship and financial management orders made in May 2017. Solicitor, Mark Warren, who acted as separate representative for the subject person, urged the Tribunal to renew the guardianship and financial management orders. Mr Warren also acted as separate representative for the subject person in this appeal. Ground of appeal 1. The appellant brought the appeal against the decision to confirm the financial management order made in May 2017 and the decision to renew and vary the guardianship order, which was made at the same time. He announced at the hearing of the appeal that in light of the recent deterioration of his sister's health, it was no longer feasible for her to be cared for at home, and therefore he had decided to withdraw the appeal against the decision to confirm the May 2017 guardianship order. Mr Warren supported the withdrawal of the appeal against the decision to confirm the guardianship order. Accordingly, we made orders under s 55(1)(a) of the NCAT Act dismissing the appeal against the decision to confirm the May 2017 guardianship order. 2. For convenience, in these reasons we will refer to the decision to confirm the financial management order made in August 2017 as the "decision under appeal". 3. The appellant has a right to appeal against the decision under appeal as of right on any question of law or, with the leave of the Appeal Panel, on any other ground: s 80(2)(b) of the NCAT Act. 4. The appellant provided lengthy written submissions detailing the grounds of appeal and arguments in support. He elaborated on those submissions in the hearing of the appeal. We understand the grounds of appeal to be: 1. The decision under appeal was ultra vires because the Tribunal was not properly constituted. 2. The decision under appeal was legally unreasonable in the sense discussed in Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 (Li). 3. The Tribunal member was biased against him. 1. In addition, the appellant criticises various actions taken by the NSW Trustee in respect of the management of his sister's estate, to which we shall return. Should the power to extend the time to lodge the appeal be exercised? 1. The appellant was required to lodge a notice of appeal by 7 October 2017 (28 days after the appellant received reasons for the decision under appeal). However, he did not lodge the notice until 30 January 2018: see r 25(4)(b) of the Civil and Administrative Tribunal Rules 2014 (NSW) (the NCAT Rules). 2. As the notice of appeal was not lodged until after the statutory deadline had passed, the appeal cannot proceed unless the power conferred by s 41 of the NCAT Act to extend the period of time to lodge an appeal is exercised. That power must be exercised judicially having regard to the "guiding principle" that the Tribunal is to facilitate the just, quick and cheap resolution of the real issues in the proceedings: s 36 of the NCAT Act; Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 (Jackson) at [18]. 3. In Jackson, the Appeal Panel identified at [22] factors generally relevant to the exercise of the discretion to extend time to lodge a Notice of Appeal. They include: the length of and reason for the delay; whether the appellant has a fairly arguable case; and the extent of any prejudice that might be suffered by the respondent(s) to the appeal if leave to extend time to lodge a Notice of Appeal is granted. Explanation for the delay 1. The appellant is 90 years of age. Since the making of the decision under appeal he has struggled with his own health problems. In August last year he was hospitalised. His recovery has been slow. The appellant claimed that the combination of ill health, lack of time caused by attending to his health problems and visiting and supporting his sister, meant that undertaking the "daunting and absolutely terrifying" task of preparing the notice of appeal made it impossible for him to meet the 28-day deadline to lodge the notice of appeal. Conclusion 1. Time limits are imposed to bring finality to the decision-making process. They are an important, but not an absolute, value. Once the threshold questions of whether a reasonable explanation for lodging an appeal out of time and whether a respondent will suffer substantial prejudice are resolved, the question must be asked whether or not justice can be done to all parties if the matter proceeds to an appeal having regard to the need to "facilitate the just, quick and cheap resolution of the real issue in the proceedings". It is to that question that the considerations outlined in Jackson are ultimately directed. 2. The appellant has provided an adequate explanation for his failure to lodge the notice of appeal in time. The available material suggests that once his health improved in late 2017 he was diligent in his efforts to prepare the paperwork necessary to lodge the notice of appeal. 3. There is no evidence, and nor is it suggested, that any party to the appeal is likely to be substantially prejudiced on account of the appeal being brought out of time. 4. While ultimately we decided to dismiss the appeal, on its face it is not so unmeritorious and hopeless that it would be inappropriate to exercise the discretion to extend time. 5. This is not a case of a person who has taken a cavalier approach to the observance of statutory deadlines or had an ulterior motive for lodging an appeal out of time. Rather, this is a case of a person who, on account of age and infirmity, found himself unable to comply with the statutory deadline. Although the appeal was out of time by a not insignificant period, it is our view the balance of considerations favour granting an extension to lodge the Notice of Appeal. 6. The time to lodge the notice of appeal is extended to 30 January 2018. Ground 1: The decision was ultra vires 1. The appellant contends that the decision under appeal is "null and void" because the Tribunal was not properly constituted. The Tribunal was constituted by a single member, an Australian lawyer assigned to the Guardianship Division: cl 2 of Sch 6 of the NCAT Act. The appellant asserts that the rules that govern practice and procedure in NCAT required the Tribunal to be constituted by three members. 2. The appellant is correct that the decision under appeal will be void or of no legal effect if the Tribunal was not properly constituted. However, for the reasons that follow the Tribunal which made the decision under appeal was properly constituted in accordance with the provisions of the NCAT Act. 3. When exercising its substantive functions under the Guardianship Act, the Tribunal must be constituted by three members unless the Tribunal is undertaking one of the functions under that Act listed in cl 4(2) of Sch 6 to the NCAT Act. These include reviews of guardianship and financial management orders: cll 4(2)(a), 4(2)(b) of Sch 6 to the NCAT Act. Cl 4 of Sch 6 to the NCAT Act reads: 4 CONSTITUTION OF TRIBUNAL (1) The Tribunal, when exercising its substantive Division functions, is to be constituted by 3 Division members as follows: (a) 1 member who is an Australian lawyer, (b) 1 member with a professional qualification, (c) 1 member with a community based qualification. (2) Despite subclause (1), the Tribunal may be constituted by 1 or 2 Division members in exercising its substantive Division functions for the purposes of the following provisions of the Guardianship Act 1987: (a) Division 4 (Assessment and review of guardianship orders) of Part 3, (b) Division 2 (Review and revocation of financial management orders) of Part 3A, (Emphasis added) 1. The decisions made by the Tribunal in August 2017 were made in the exercise of the power to review a guardianship order and the power to review a financial management order. Clause 4(2) of Sch 6 to the NCAT Act permits the Tribunal to be constituted by a single member when exercising those powers. 2. The appellant has been involved in numerous proceedings in both NCAT and the Guardianship Tribunal. In all, apart from the review proceedings, the subject of this appeal, the Tribunal was constituted by three members — an Australian lawyer, a member with a "professional qualification" and a member with a "community based qualification": see cl 1(2) of Sch 6 to the NCAT Act. Given this history, it is not surprising that the appellant assumed that the Tribunal which conducted the August 2017 review would be constituted in the same way. However, as explained above, he was mistaken in his belief that there was a statutory requirement that the Tribunal must be constituted by three members. 3. This ground of appeal is rejected. Ground 2: The decision under appeal was legally unreasonable 1. To succeed on this ground, the appellant must establish that the decision under appeal was one that could not reasonably have been reached. In Li, the High Court held that there was a legal presumption that the legislature intended that a statutory discretionary power would be exercised reasonably. 2. In Li the High Court extended the basis upon which the exercise of a discretionary power can be set aside on the ground of unreasonableness. The plurality (Hayne, Kiefel and Bell JJ) held at [68] that Wednesbury unreasonableness, that is, an irrational, if not bizarre decision – one that no reasonable person could have arrived at (per Lord Greene MR in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223) — is neither the starting nor the end point for the standard of unreasonableness. The plurality held that the concept of legal unreasonableness extends to a decision which lacks "an evident and intelligible justification" and one which involves an error in the exercise of a discretion, such as where the decision-maker acts on a wrong principle or takes irrelevant matters into consideration: [75], [76]. 3. In Judicial Review of Administrative Action and Government Liability by M Aronson, M Groves and G Weeks (Thomson Reuters, 6th ed, 2017) the authors commented (at [6.450]), that Li "invites a qualitative assessment of the impugned discretionary decision, but it does not allow an appeal to the judicial review judge's subjective sense of reasonableness". See also GAR v Attorney General of New South Wales (No 2) [2017] NSWCA 314 at [154]. 4. In Oswal v Commissioner of Taxation [2015] FCA 1439 at [48], Griffiths J usefully summarised the relevant principles concerning legal unreasonableness discussed by the Full Court of the Federal Court in Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437 (Singh): "Legal unreasonableness 'is invariably fact dependent' and requires a careful evaluation of the evidence. The outcome of any particular case in which it is claimed that there has been a legally unreasonable exercise of a statutory discretionary power will depend on the application of the principles from Li and the authorities discussed therein, rather than on an analysis of factual similarities or differences between individual cases, including Li": at [42]; "There is a presumption of law that the Parliament intends an exercise of statutory power to be reasonable": at [43]; "There are two species of legal unreasonableness, namely where the review court has identified an underlying jurisdictional error in the decision-making process and also where the concept of legal unreasonableness is 'outcome focused' and there is lacking 'an evident and intelligible justification': at [44] citing Li at [76] per Hayne, Kiefel and Bell JJ and at [105] per Gageler J; "Where there are reasons in support of an exercise of discretion, those reasons will provide the focus for an assessment as to whether the decision is unreasonable in the legal sense and, in such a case, it would be a rare where the reasons demonstrate a justification but the ultimate exercise of the power is seen to be legally unreasonable": [45]-[47]; and "The standard of legal unreasonableness applies across a wide range of statutory powers, but the indicia of legal unreasonableness will need to be found in a scope, subject and purpose of the particular statutory provisions in issue in any given case, as well as the fact dependent": at [48]. Statutory framework 1. Before addressing the appellant's arguments in support of this ground, we will examine the statutory framework which governed the exercise of the Tribunal's power to make the decision under appeal. 2. The power to make a financial management order can only be exercised if, after considering the person's capability to manage their affairs, the Tribunal is satisfied of the three matters listed in s 25G of the Guardianship Act, namely that: the person is not capable of managing their affairs, there is a need for another person to manage those affairs on the person's behalf, and it is in the person's best interests that the order be made. The Tribunal may order that a financial management order be reviewed within a specified time: s 25N of the Guardianship Act. 3. If the Tribunal makes a financial management order in respect of the estate (or part of the estate) of a person, the Tribunal may appoint a suitable person as manager of the estate. Alternatively, the Tribunal may commit the management of the estate to the NSW Trustee: s 25M of the Guardianship Act. 4. The orders available to the Tribunal on review of a financial management order are listed in s 25P of the Guardianship Act: (1) On reviewing a financial management order under section 25N, the Tribunal: (a) must vary, revoke or confirm the order, and (b) if it considers it appropriate to do so may take such action with respect to the appointment of the manager of the protected person's estate as the Tribunal could take on a review of such an appointment under Division 3. (2) The Tribunal may revoke a financial management order only if: (a) the Tribunal is satisfied that the protected person is capable of managing his or her affairs, or (b) the Tribunal considers that it is in the best interests of the protected person that the order be revoked (even though the Tribunal is not satisfied that the protected person is capable of managing his or her affairs). (3) In this section, "vary", in relation to a financial management order, includes to exclude (or remove an exclusion of) a specified part of the protected person's estate from the order. 1. In making an order under s 25P of the Guardianship Act, the Tribunal must observe the principles listed in s 4 of that Act: 4 GENERAL PRINCIPLES It is the duty of everyone exercising functions under this Act with respect to persons who have disabilities to observe the following principles: (a) the welfare and interests of such persons should be given paramount consideration, (b) the freedom of decision and freedom of action of such persons should be restricted as little as possible, (c) such persons should be encouraged, as far as possible, to live a normal life in the community, (d) the views of such persons in relation to the exercise of those functions should be taken into consideration, (e) the importance of preserving the family relationships and the cultural and linguistic environments of such persons should be recognised, (f) such persons should be encouraged, as far as possible, to be self-reliant in matters relating to their personal, domestic and financial affairs, (g) such persons should be protected from neglect, abuse and exploitation, (h) the community should be encouraged to apply and promote these principles. 1. The obligation to have regard to these principles is reinforced by cl 5(1) of sch 6 to the NCAT Act, which provides that when exercising its "Division functions for the purposes of the Guardianship Act 1987", the Tribunal is under a duty to observe the principles set out in s 4 of the Guardianship Act. (See Lindsay J pointed out at P v NSW Trustee and Guardian [2015] NSWSC 579 at [53]-[58], ZGM v ZGN [2018] NSWCATAP 101 at [39]; ZBC v ZBD [2016] NSWCATAP 264 at [101], [105]). Appellant's submissions 1. The appellant contends that the decision under appeal was "110% unreasonable" relying on the following arguments in support: 1. The Tribunal's purported failure to have regard to his suitability to manage his sister's estate. He claims that his suitability to act as manager is demonstrated by the history of prudent and careful management of his sister's estate over a long period, together with his impressive qualifications and experience in financial management, including 20 years as a high school teacher and role as a "corporate warrior", exposing corruption, fraud and mismanagement in publicly listed companies. 2. The alleged lack of transparency and accountability demonstrated by the NSW Trustee in its role as manager of his sister's estate. The appellant points to among other things, the alleged failure of the NSW Trustee to adequately report on his sister's estate throughout the period it has been under management and to make timely payment of accounts relating to the house owned by his sister. Consideration 1. We understand the appellant to argue that the decision was unreasonable in the sense that it lacked "an evident and intelligible justification": Li at [76]. 2. In the review proceedings, the appellant urged the Tribunal to revoke the financial management order. That order could only be made if the Tribunal was satisfied of one of two things: that the subject person was capable of managing her affairs, or, it is in the best interests of the subject person that the order be revoked: s 25P(2) of the Guardianship Act. None of the parties contend that the subject person was capable of managing her affairs. Rather, the issue in contest was whether it was in her best interests to revoke the financial management order. 3. In concluding that it would not be in the subject person's best interests to revoke the financial management order, the Tribunal had regard to three key considerations. 4. First, the appellant's opposition to his sister's continued residence at the Facility: DHS, NCAT, File no 2009/00475426 (unreported, Anderson, J, 25 August 2017) (Reasons) at [65]. The Tribunal noted that the appellant remained "steadfastly opposed" to his sister's continued residence at the Facility: Reasons at [43]. Noting that three months earlier the appellant had removed the subject person from the Facility against medical advice, the Tribunal found that there was a risk that he might do so again, "contrary to her wishes and medical advice": Reasons at [43]. 5. Second, the Tribunal concluded that the appellant's demonstrated hostility to the Director of the Facility, whom he referred to throughout the proceedings as "the plaintiff" and "a liar", meant it could not be satisfied that the appellant would "agree to and consistently maintain all payments for his sister's ongoing accommodation and care": Reasons at [65]. 6. Third, the absence of any plans made by the appellant for the management of his sister's estate "in the event he is not able (through illness or other factors) to manage her affairs in the future": at [66]. The Tribunal noted the appellant's "advanced age" and the absence of any involvement of family members in his life and that of the subject person: at [66]. 7. In its Reasons, the Tribunal noted the appellant's claim that he is a "very skilful bookkeeper" and had managed his sister's estate for many years (at [62]) but made no finding about those claims. The conclusion reached by the Tribunal, that it was not in the best interests of the subject person to revoke the financial management order, turned on the assessment that there was a risk, if the financial management order was revoked and the appellant assumed the role of de-facto financial manager, that he might attempt to undermine the Public Guardian's exercise of its accommodation function by withholding payment for his sister's accommodation and care. The Tribunal also concluded that the appellant's failure to develop a contingency plan, in the event he became unable to manage his sister's finances, posed a potential and unacceptable risk to her estate: at [66]. 8. The explanation given by the Tribunal for concluding that it was not in the subject person's best interests to revoke the financial management order was cogent and objectively reasonable. The Tribunal, in effect, undertook a risk assessment and concluded that the risk of revoking the financial management order outweighed any factors which might favour a reversion to the "informal arrangements" which had been in place before the making of the financial management order in May 2017. It is implicit from its reasons that in evaluating whether it was in the subject person's best interests to revoke the financial management order, the Tribunal had regard to its duty to give paramount consideration to the interest to the welfare and interests of the subject person: s 4(a) of the Guardianship Act. 9. The available material indicates that the Tribunal gave careful consideration to the question of whether it was in the subject person's best interests to revoke the May 2017 financial management order. It gave cogent reasons for its conclusion. We are unable to accept the contention that the decision not to exercise the power to revoke the financial management order lacked an evident and intelligible justification. This ground of appeal is rejected. Ground 3: the Tribunal was biased 1. The Tribunal was obliged to afford the appellant procedural fairness: s 38(2) of the NCAT Act. As part of that obligation, the Tribunal was required to determine the review and any issue that might arise in its determination, without bias or the appearance of bias. 2. The appellant alleges actual bias. He bears the onus of demonstrating actual bias. It is a heavy onus to discharge: per French J in Jia v Minister for Immigration and Multicultural Affairs (1998) 84 FCR 87 at 106, 107, cited with approval by Gleeson CJ and Gummow J in Minister for Immigration & Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 (Jia Legeng) at 520. An allegation of actual bias must be distinctly made, clearly proved and supported by cogent evidence. A finding of actual bias should not be made lightly: South Western Sydney Area Health Services v Edmonds [2007] NSWCA 16 at [97]. 3. In Jia Legeng, Hayne J explained at [183]: "Bias" is used to indicate some preponderating disposition or tendency, a "propensity; predisposition towards; predilection; prejudice". It may be occasioned by interest in the outcome, by affection or enmity, or, as was said to be the case here, by prejudgment. Whatever its cause, the result that is asserted or feared is a deviation from the true course of decision-making, for bias is "any thing which turns a man to a particular course, or gives the direction to his measures" [citations omitted]. 1. In submissions in support of this ground, the appellant described the Tribunal Member in colourful terms, asserting that she was "amoral" and had acted "maliciously, venously, spitefully, hatefully and unethically". However, he was unable to point to any material which might support a finding that he was treated unfairly in any procedural or substantive way, or that the Member was motivated by bias, malice or some other legally disabling factor. Nor was he able to point to any material to support his belief that for reasons of "bias" the Member determined the review other than on its merits. 2. In effect, the appellant contends that that the only rational explanation for the decision not to revoke the financial management order was that the Member was ill-disposed towards him. That contention appears to be another way of expressing the view that the decision was irrational and unreasonable. The appellant's subjective belief that the decision under appeal was irrational and unreasonable might be genuine, but of itself is insufficient to support a finding that the Member was biased. 3. The allegation of actual bias is not established. This ground of appeal must be rejected. Should the power to deal with the appeal by way of a new hearing be exercised? 1. Having found none of the grounds of appeal established, it would nonetheless be open to us to deal with the appeal by way of a new hearing and take into account fresh evidence, as permitted by s 80(3) of the NCAT Act. Relevant to the determination of whether that power should be exercised are the changed circumstances relating to the subject person, since the making of the decision under appeal. 2. The changed circumstances include first, the deterioration in the subject person's health. At the hearing of the appeal, her condition was reported to be critical. Second, as a result of her decline, the appellant now acknowledges that it is no longer feasible for his sister to return to live at home. His claim made during the hearing of the appeal that he no longer opposes the appointment of the Public Guardian or its decision that his sister remain at the Facility, is consistent with his decision to withdraw the appeal against the decision to renew the May 2017 Guardianship Order. Third, the material which suggests that the appellant and the Director of the Facility are now on reasonably good terms. It will be recalled that the appellant's "demonstrated hostility" towards the Director led the Tribunal to conclude that without a financial management order there was a risk that the appellant might withhold payment for his sister's accommodation and care, and, in turn, jeopardise her on-going care and accommodation: at [65]. 3. Two of the three reasons given by the Tribunal for concluding that it is not in the subject person's best interests to revoke the financial management order, appear to no longer apply. However, we have decided not to exercise the power conferred by s 80(3) to deal with the appeal by way of a new hearing for the following reasons. First, there is no evidence to address the third concern identified by the Tribunal, namely the failure of the appellant to put in place a contingency plan for managing his sister's finances in the event he found himself unable to do so. Second, the lack of evidence to support the appellant's self-report that he remains capable of dealing with his sister's affairs in a prudent and orderly fashion. Even if accepted that the appellant capably managed his sister's finances in the past, a claim which, while un-contradicted, is unsupported, it does not necessarily follow that he is, and is likely to remain able to do so, for the foreseeable future. 4. It is open to the appellant to seek review of the financial management order and provide evidence in support of his claim that he is a suitable person to manage his sister's estate on either a formal or informal basis. Given the availability of this option together with the lack of evidence about the appellant's current suitability to manage his sister's estate, we have decided not to proceed to conduct a new hearing, notwithstanding the change in circumstances since the decision under appeal was made. Actions taken by the NSW Trustee and Guardian 1. In the course of the appeal the appellant levelled a number of criticisms about the actions of the NSW Trustee in managing his sister's estate. He contends that the NSW Trustee is demonstrably incompetent. Among other things, he claims that in the 12 months since the financial management order was made, the NSW Trustee: 1. Issued only one statement setting out the position of his sister's finances. 2. Failed to attend to the payment of expenses relating to the upkeep of his sister's property. 3. "Stole" $6,000 from a joint bank account held by himself and his sister. 4. Failed to answer his reasonable enquiries about issues relating to the management of his sister's estate. 1. He argues that the Trustee has failed to exercise due care and diligence in managing his sister's estate. While not put in these terms, he argues in effect that the NSW Trustee has failed to comply with its duty to give primacy to the welfare and interests of his sister in the management of her estate: s 39 of the NSW Trustee and Guardian Act 2009 (NSW), specifically. 2. Our role in this appeal is limited to considering the decision under appeal. It does not extend to considering the merits of subsequent decisions made by the NSW Trustee. The appellant can apply to the Administrative and Equal Opportunity Division of NCAT for a review of the merits of any decision made by the NSW Trustee in connection with the exercise of its functions in relation to the management of his sister's estate: s 62 of the NSW Trustee and Guardian Act and s 55 of the Administrative Decisions Review Act 1997 (NSW). Summary 1. Each of the grounds of appeal is rejected. We have decided not to deal with the appeal by way of a new hearing. Order 1. The time to lodge the notice of appeal is extended to 30 January 2018. 2. The appeal is dismissed. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Principal Registrar ********** 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: 25 May 2018