Civil and Administrative Tribunal New South Wales Medium Neutral Citation: ZIN v ZIO [2018] NSWCATAP 149 Hearing dates: 5 June 2018 Date of orders: 08 June 2018 Decision date: 08 June 2018 Jurisdiction: Appeal Panel Before: Hennessy LCM, Deputy President J Kearney, Senior Member L Stewart, General Member Decision: 1. The appeal is dismissed. Catchwords: APPEAL - guardianship and financial management orders – no question of law identified Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), s 80(2) s 29(1)(a), s 38 Guardianship Act 1987 (NSW), s 14 , s 25I, s 38 Cases Cited: Kioa v West [1985] HCA 81; (1985) 159 CLR 550 Mahon v Air New Zealand Ltd [1983] UKPC 29; [1984] AC 808 Re Refugee Tribunal; ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 Category: Principal judgment Parties: ZIN (Appellant) ZIO (First Respondent) ZIP (Second Respondent) NSW Trustee and Guardian (Third Respondent) Public Guardian (Fourth Respondent) ZIQ (Fifth Respondent) Representation: ZIN (self-represented by phone) ZIP (self represented by phone) File Number(s): AP 18/14832 Publication restriction: Pursuant to s 65 of the Civil and Administrative Tribunal Act 2013 (NSW) publication of the names of the parties to the proceedings and witnesses in the Tribunal below is prohibited. Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Guardianship Division Date of Decision: 27 February 2018 Before: J Halbert, Senior MemberDr S L Thompson, Senior MemberE McAlpine, General Member File Number(s): 2018/00038268 REASON FOR DECISION 1. Following two applications from a social worker, the Tribunal made a guardianship order and a financial management order in relation to ZIO. The Tribunal appointed the Public Guardian as ZIO's guardian and the NSW Trustee and Guardian as her financial manager. ZIO's ex-spouse and carer, ZIN, has appealed to the Appeal Panel from both the guardianship orders and the financial management orders. He is entitled to appeal 'on a question of law' but must obtain the Tribunal's permission before appealing on other grounds: Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), s 80(2). 2. On the basis of what ZIN wrote in the Notice of Appeal and what he told us at the hearing, there appear to be two main grounds of appeal in relation to both decisions. The first is that much of the information contained in the application forms and the supporting documents was incorrect or incomplete. ZIN provided a list of the deficiencies including incorrect residential and email addresses. Other examples include an allegation that the Health Professional Report Form and other documents did not contain ZIO's full medical history. The guardianship application was not signed and both applications are, in his opinion, invalid. 3. ZIN agrees that ZIO is not capable of making her own decisions and that someone else needs to make decisions for her. The only issue on appeal is who that person should be. ZIN said that he should be ZIO's guardian and financial manager because he has been her carer for 10 years and has met her needs during that time. ZIN says that the social worker's application was based on "hearsay". He also said that his daughter, ZIQ, was under stress when she told the social worker that her father was no longer capable of caring for ZIO. 4. The Tribunal has power ('general jurisdiction') to conduct a hearing and make a guardianship order after receiving an application for a such an order: NCAT Act, s 29(1)(a); Guardianship Act 1987 (NSW), s 14. The Tribunal also has power ('general jurisdiction') to conduct a hearing and make a financial management order after receiving an application for such an order: NCAT Act, s 29(1)(a); Guardianship Act, s 25I. There is no requirement for an application for guardianship or financial management to be accurate, complete or signed before the Tribunal can conduct a hearing and make an order. 5. The Tribunal does not make its decision solely on the basis of the application and the supporting material. If that information is incorrect, incomplete or contested, a party can correct the information or provide further evidence to the Tribunal. Although ZIN said the Tribunal did not listen to him, he did not provide a transcript of the hearing to prove that allegation. Because an inaccurate, incomplete or unsigned application does not stop the Tribunal from conducting a hearing and making an order, ZIN has not made out the first ground of appeal. 6. The second main ground of appeal was that ZIN did not receive either of the applications or the supporting information until two days before the hearing. We have interpreted this ground of appeal as alleging a breach of procedural fairness. The Tribunal must give a party a fair hearing before decisions are taken which affect their interests: NCAT Act, s 38(2); Re Refugee Tribunal; ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 at [101]. This 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". 7. 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. 8. Two days is a relatively short time to consider the applications and the supporting material. However, ZIN had been on notice since 7 February 2018, 20 days before the hearing, that the applications were listed before the Tribunal. He knew that they were applications for guardianship and a financial management orders. He was given an opportunity to provide any evidence he wished to the Tribunal before the hearing. He did not say how he had been disadvantaged by receiving the applications themselves and the supporting material at short notice or what information he would have provided if he had been given more time. In our view, there has been no breach of procedural fairness. Order 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: 08 June 2018