Civil and Administrative Tribunal New South Wales Medium Neutral Citation: ZGW v ZGX [2018] NSWCATAP 297 Hearing dates: 16 August 2018 Date of orders: 12 December 2018 Decision date: 12 December 2018 Jurisdiction: Appeal Panel Before: A Britton, Principal Member J Moir, Senior Member J Le Breton, General Member Decision: (1) The time for lodging the appeal is extended to 29 May 2018. (2) Appeal allowed. (3) The orders made by the Tribunal on 16 November 2017 are set aside. (4) The matter is remitted to be reconsidered by the Tribunal with further evidence if permitted by the Tribunal. (5) Order 3 does not come into effect until the Tribunal re-determines the application. Catchwords: APPEAL — whether "no evidence" to support a finding of fact — whether challenged fact a jurisdictional fact ADMINISTRATIVE LAW — procedural fairness — whether Tribunal failed to take such measures as are reasonably practicable to ensure that each party had a reasonable opportunity to be heard STATUTORY INTERPRETATION — whether s 37 of the Civil and Administrative Tribunal Act 2013 requires the Tribunal to use a "resolution process" ADMINISTRATIVE LAW — mandatory consideration — whether Tribunal was required to have regard to views of subject person Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Guardianship Act 1987 (NSW) Interpretation Act 1987 (NSW) Cases Cited: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; [1990] HCA 33 Azzopardi v Tasman UBE Industries Pty Limited (1985) 4 NSWLR 139 L & B Linings Pty Limited v WorkCover Authority of NSW [2012] NSWCA 15 Frost v Kourouche (2014) 86 NSWLR 214; [2014] NSWCA 39 Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 Kostas v HIA Insurance Services Pty Limited [2010] HCA 32 P v NSW Trustee and Guardian [2015] NSWSC 579 Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6 Smith & Anor v Collings Homes Pty Ltd & Anor [2004] NSWCA 75 South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16 Stead v State Government Insurance Commission [1986] HCA 54; 161 CLR 141 ZBC v ZBD [2016] NSWCATAP 264 ZGW v ZGY [2018] NSWCATAP 132 Category: Principal judgment Parties: ZGW (Appellant) ZGX (First Respondent) ZGY (Second Respondent) Representation: ZGW (in person) ZGX (in person) ZGY (no appearance) File Number(s): AP 18/24899 Publication restriction: The publication of the name of any of the parties or other people referred to in this decision including the publication of any information picture or other material that identifies them or is likely to lead to their identification is prohibited. Decision under appeal Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Guardianship Division Date of Decision: 16 November 2017 Before: M Gardner, Senior Member (Legal)J McAuliffe, Senior Member (Professional)M McCalman, General Member File Number(s): 2017/00213183-008; 2017/00213183-001 REASONS FOR DECISION 1. 90-year-old ZGX has dementia. This is an appeal by one of ZGX's sons against a financial management order made by the Guardianship Division of the NSW Civil and Administrative Tribunal (NCAT), which committed the management of ZGX's estate to the NSW Trustee and Guardian. 2. For the reasons that follow, we have decided to allow the appeal. Publication of parties' names 1. The publication or broadcast of the name of any person mentioned or otherwise involved in an "internal appeal" against decisions made by the Guardianship Division of NCAT is prohibited: ss 65(1), 65(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act). Being an official report of the appeal proceedings, that prohibition does not apply to these reasons: s 65(3) of the NCAT Act. Nonetheless, because of the sensitive nature of the matters discussed in these reasons, we will not refer to the parties by name. 2. For the purpose of this appeal, the Registrar assigned pseudonyms to the parties: "ZGW" (the appellant), "ZGY" (the appellant's sister) and "ZGX" (the mother of ZGW and ZGY, and the person the subject of the initiating applications made to NCAT). For ease of reading, in these reasons we will not use pseudonyms but will refer to ZGW, ZGY and ZGX as "the Appellant", "the Sister" and "the Subject Person", respectively. Statutory framework 1. On the application of an "interested person", the Tribunal may decide to review the operation and effect of a "reviewable power of attorney", or to not carry out such a review: s 36(1) of the Powers of Attorney Act 2003 (NSW). In that Act, a "reviewable power of attorney" includes an "enduring power of attorney": ss 33(1), 33(2). An "enduring power of attorney" is an instrument, which among other things, is "expressed to be given with the intention that it will continue to be effective even if the principal lacks capacity through loss of mental capacity after execution of the instrument": s 19(1) of the Powers of Attorney Act. In that Act, an "interested person" is defined to include an attorney appointed under a reviewable power of attorney: s 35(1). 2. As a consequence of reviewing the operation and effect of a reviewable power of attorney, the Tribunal may decide whether or not to make an order under s 36 of the Powers of Attorney Act: s 36(1). If satisfied that it would be in the best interests of the principal to do so, or that it would better reflect the wishes of the principal, the Tribunal may make various orders under s 36(4) of the Powers of Attorney Act, which include removing a person from office as an attorney, appointing a substitute attorney to replace an attorney who has been removed, or, revoking all or part of the power of attorney. 3. Alternatively, if on review of the operation and effect of a reviewable power of attorney, the Tribunal decides not to make an order under s 36 of the Powers of Attorney Act, it may (if it considers it appropriate in all the circumstances to do so) decide to treat that application for review as an application for a financial management order under Part 3A of the Guardianship Act 1987 (NSW): s 37(1) of the Powers of Attorney Act; s 25F(d) of the Guardianship Act. Background to the decision under appeal 1. On 23 October 2012, the Subject Person executed an enduring power of attorney appointing two of her three children, the Appellant and the Sister, to act jointly and severally as her attorneys (the EPoA). On the same day, the Subject Person executed an instrument appointing the Appellant and the Sister to act jointly as her enduring guardians (the EGA). 2. In May 2017, the Subject Person was hospitalised following a fall. While she was in hospital, a dispute arose among her three children about whether the Subject Person should move to residential care on a permanent basis. The Appellant claimed the Subject Person fiercely opposed the move and wanted to return home. The Sister disagreed and asserted that the Subject Person recognised that she was unable to care for herself at home. 3. In May 2017, the Appellant moved from his home in Tamworth to live with the Subject Person on the NSW Central Coast. The Appellant claimed that he did so to care for the Subject Person and to enable her to remain living at home. The Sister claimed that the Appellant gained a financial advantage from that arrangement, pointing out that while living with the Subject Person, the Appellant was not paying rent and was drawing on the Subject Person's funds to pay for his living expenses. The Appellant in turn accused the Sister of, among other things, accepting a parcel of shares from the Subject Person, valued at about $70,000, at a time when the Subject Person lacked decision-making capacity. 4. On 13 July 2017, the Sister lodged applications with NCAT to review the EPoA and the EGA. The following month, the Appellant also lodged applications with NCAT seeking reviews of the EPoA and the EGA. 5. The four applications were listed for hearing on 12 September 2017. At that hearing, the Tribunal exercised its power under s 6K(3) of the Guardianship Act, to deal with the application to review the EGA as an application for a guardianship order under Part 3A of that Act. The Tribunal went on to make a guardianship order in respect of the Subject Person and to appoint the Public Guardian as the Subject Person's guardian for a period of 12 months. Because of a lack of time, the Tribunal adjourned the applications made by the Appellant and the Sister to review the EPoA. The Appellant unsuccessfully appealed the Tribunal's decision made on 12 September 2017 to make a guardianship order: ZGW v ZGY [2018] NSWCATAP 132. 6. At a hearing on 16 November 2017 to determine the application to review the EPoA, the Sister told the Tribunal that she wished to resign from her position as attorney and that, in her opinion, the Appellant was not a suitable person to act as the Subject Person's attorney. The Appellant disputed that he was not a suitable person to act as .attorney, and urged the Tribunal to remove the Sister as attorney and to permit him to act as sole attorney. The Tribunal exercised its power to deal with the application for review of the EPoA as an application under Part 3A of the Guardianship Act to make a financial management order. The Tribunal went on to make a financial management order in respect of the Subject Person and to commit the management of her estate to the NSW Trustee and Guardian. That decision is the subject of this appeal. Grounds of appeal 1. The Appellant has a right to appeal against the Tribunal's decision to make a financial management order, 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. The Appellant appeals on questions of law, and, in addition, seeks leave to appeal. 2. From the Notice of Appeal and supporting submissions, the questions of law constituting the grounds of appeal appear to be: 1. Whether the Tribunal, as required by the Guardianship Act, took into account the views of the Subject Person, in exercising its power to: 1. treat the application for the review of the EPoA as an application for a financial management order. 2. make a financial management order. 1. Whether the Tribunal failed to afford the Appellant a reasonable opportunity to present his case by: 1. refusing to permit him to tender further material on the day of the hearing; 2. permitting his brother to participate in the hearing. 1. Whether the Tribunal was obliged to use or attempt to use a "dispute resolution process". 2. Whether there was "no evidence" for the finding made by the Tribunal that the Appellant borrowed $10,000 from the Subject Person to repay his credit card debt. Ground 1: Did the Tribunal, as required by the Guardianship Act, take into account the views of the Subject Person? 1. The Appellant contends that the Tribunal was bound to have regard to the views of the Subject Person, but failed to so. Specifically, he contends that the Tribunal ignored the views of the Subject Person, in declining to exercise its power under the Powers of Attorney Act, to conduct a review of the EPoA and to proceed to make a financial management order. He contends that had the Tribunal taken into account the views of the Subject Person, as expressed at the time she made the EPoA, it would have exercised its power, under s 36(4) of the Powers of Attorney Act, to remove the Sister as the Subject Person's attorney and to permit the Appellant to act as sole attorney. 2. It is the duty of everyone exercising functions under the Guardianship Act, with respect to persons who have disabilities, to observe the principles listed in s 4 of that Act, which include: (a) the welfare and interests of such persons should be given paramount consideration … (d) the views of such persons in relation to the exercise of those functions should be taken into consideration … 1. The Subject Person is a "person who has a disability" within the meaning of s 3(2) of the Guardianship Act. 2. The opening words of s 4 of the Guardianship Act, "it is the duty of everyone exercising functions under this Act ... to observe the following principles" (emphasis added), makes plain that it is mandatory, not merely exhortatory, for a person exercising functions under the Act to take into account the principles listed in s 4. In P v NSW Trustee and Guardian [2015] NSWSC 579 at [53]-[58], Lindsay J pointed out that the obligation to have regard to those 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 also, ZBC v ZBD [2016] NSWCATAP 264 at [101], [105]. 3. There is no equivalent to s 4 of the Guardianship Act contained in the Powers of Attorney Act. When exercising its powers under the Powers of Attorney Act, while it is open to the Tribunal to have regard to the views of the Subject Person, the Tribunal is not bound to do so: ZBC v ZBD [2016] NSWCATAP 264 at [100]-[101]. 4. But in any event, the contention that the Tribunal failed to consider the views of the Subject Person, in exercising its power to decline to review the operation and effect of the EPoA and to make a financial management order, is not borne out by the Tribunal's reasons for its decision on 16 November 2017 (the reasons). 5. In its reasons, the Tribunal referred to the current and historic views expressed by the Subject Person about the management of her finances. With respect to the latter, the Tribunal acknowledged that when the Subject Person made the EPoA in 2012, she "wanted both [the Appellant] and [the Sister] to be her [the Subject Person's] attorneys, jointly and severally" in the event that the Subject Person became incapable of making decisions relating to her estate: at [51]. 6. With respect to the Subject Person's current views, the Tribunal recorded at [61]: [The Subject Person] told the Tribunal[,] when asked[,] that she didn't want any of her children managing her finances. She said "we are sitting in here spending the whole day talking about my money that I've earned." 1. The Tribunal gave these reasons for deciding not to conduct a review of the EPoA: 1. The significant conflict between the attorneys: at [15]. 2. The allegations made by each attorney about the other: at [16]. 3. The foreshadowed decision by the Sister to resign as attorney: at [17]. 4. Its finding that the EPoA is "not operating in the manner in which [the Subject Person] intended it to": at [23]. 5. Its finding that the Subject Person's estate would be utilised to advance the interest and quality of life of the Appellant and not the Subject Person, if the Appellant were to continue in the role of attorney: at [23]. 1. The Tribunal revisited these issues in the context of deciding whether the pre-conditions to the making of a financial management order had been satisfied, or more specifically, in deciding whether there was a need for another person to manage the Subject Person's affairs: [38]-[54]. The Tribunal concluded it was not appropriate for the Appellant to continue to manage the Subject Person's finances, and therefore, there was a need for another person to manage her affairs: at [51], [54]. 2. The views of the Subject Person were only one of the factors the Tribunal was required to take into account when exercising its functions under the Guardianship Act. Among other things, s 4 of that Act required the Tribunal to have regard to the principle that paramount consideration must be given to the welfare and interests of the Subject Person, and that she must be protected from neglect, abuse and exploitation. 3. It is implicit from its reasons that the decision made by the Tribunal to make a financial management order turned not on the current or historic views of the Subject Person, but on the conclusion reached by the Tribunal that the EPoA had become unworkable and that the Appellant was exercising his powers as attorney in a manner inconsistent with his fiduciary duties. Section 4 of the Guardianship Act does not mandate, as the Appellant appears to contend, that the Tribunal make a decision consistent with the views expressed by the Subject Person in 2012. Rather, the Tribunal was required to have regard to all relevant factors listed in s 4 and conduct a balancing exercise. The weight and relative importance given to each factor was a matter for the Tribunal to determine. It is implicit from its reasons that in deciding to exercise the power to make a financial management order, the Tribunal gave particular weight to the protectionist principles embodied in ss 4(a) and 4(d) of the Guardianship Act. 4. The contention that the Tribunal failed to have regard to the views of the Subject Person in exercising its powers under the Guardianship Act is rejected. Ground 2 (a): Did the Tribunal fail to give the Appellant a reasonable opportunity to present his case, by not permitting him to tender further evidence on the day of the hearing? 1. The Appellant contends that by refusing to permit him to tender additional material at the hearing on 16 November 2018, the Tribunal failed to give him a reasonable opportunity to present his case. The Sister disagrees. To put the submissions made by the parties in context, it is necessary to set out some background facts. 2. In a pro forma letter dated 13 July 2017, the NCAT Registrar instructed the Sister to give to the Tribunal and the other parties "any relevant material" within 14 days. The respondent parties were directed to give their material within 21 days. Three weeks later, on receipt of the Appellant's application seeking review of the EPoA and EGA, the Registrar issued a pro forma letter to the parties in similar terms. 3. In a notice dated 14 July 2017, the Registrar advised the parties that the applications made by the Sister for review of the EPoA and the EGA were listed for hearing on 12 September 2017. An information sheet attached to the notice stated that prior to the hearing, the parties would receive a hearing report prepared by NCAT, which "summarises what the case is about", and, in addition, a list of documents received by NCAT from the parties. 4. As noted earlier, the respective applications for review of the EPoA made by the Appellant and the Sister were listed for hearing on 12 September 2017. However, because of a lack of time, the Tribunal adjourned those applications to a date to be fixed by the Registrar. The Tribunal made no directions for the filing of additional documents. 5. In the appeal hearing, the Appellant tendered a transcript he prepared based on the sound recording of the hearing on 16 November 2017, which he had obtained from the Registrar. As the transcript is not paginated, in referring to it, we will use the time references used by the Appellant. 6. At the commencement of the hearing on 16 November 2017, the Tribunal sought to clarify with the parties which of the documents they had filed that were relevant to the determination of the applications to review the EPoA. The Tribunal noted that on 8 November 2017 the Sister had filed further written submissions. 7. The Appellant then stated that he wished to tender two additional documents, and gave this explanation for the late tender: I wasn't aware that we were allowed to provide more documents, I understood that that applied to the original Tribunal. … I didn't know that we could provide more stuff so I've been madly trying to provide some sort of evidence myself in the last couple of days, which partly explains why we're late today: T at 00:04:14. …. My siblings presented evidence on the day last time, so I just assumed it was ... I didn't know I was allowed to present more we were allowed to present more evidence, so I've been madly trying to get some together the last few days, I just assumed I was going to be able to: T at 00:11:01. 1. The presiding member ruled that because of "procedural fairness issues", the Tribunal would not accept any further documents from the Appellant, but they would "be considered in oral submissions": T at 00:12:44. The Appellant protested, arguing that the ruling was unfair because his siblings had "submitted documents on the day last time, and I assumed that …I didn't realise that we were allowed to submit more stuff between, so I assumed that we would just act off everything before the last hearing": T at 00:13:30. 2. The presiding member responded that, "there's no issue with you speaking to the Tribunal about what's contained in your documents there's no issue with [that] at all: T at 00:13:50. 3. In the appeal, the Appellant filed the material he claimed he had attempted to hand up on the day of the hearing. The material consisted of two documents. The first document, headed "My original note and evidence prepared for the Tribunal hearing 16/11/17", contained: (i) a response to the written submissions made by the Sister; (ii) a list prepared by the Appellant of his assets, income and liabilities; (iii) copies of emails exchanged between the Appellant and his siblings (but not in original form) in relation to the disputed matters involving the Subject Person. The second document, headed "Summary Financial Plan", contained a list of expenses the Appellant claims he incurred on behalf of the Subject Person, and an estimate of the cost of his labour in caring for his mother and undertaking repairs to her home and lost income. When pointed out that each document contained expenses claimed to have been incurred after the November hearing, the Appellant explained that the documents were "living documents". 4. During the hearing the Sister made a number of allegations, including that the Appellant: * withdrew a total of $10,000 from the Subject Person's account in July 2017 for a solicitor; * retained $500 from the proceeds of the sale of his mother's car; * transferred money from the Subject Person's account into his own account; * paid some of his personal expenses, including veterinarian fees, petrol and alcohol purchases, directly from the Subject Person's account. 1. During the hearing the Appellant gave an explanation for some of the expenses he claimed to have incurred on behalf of the Subject Person. The Appellant said he incurred most of the expenses in repairing and making alterations to the Subject Person's home to enable her to remain living there: T at 00:59:11. The Appellant claimed that he kept "every receipt [he'd] ever spent [sic]", but that he had not brought the receipts to the hearing: T at 01:00:05. He estimated those expenses to be a few thousand dollars: "I could add it up but I haven't got it with me today": T at 01:24:59. Consideration 1. The Tribunal was obliged to afford all parties procedural fairness: s 38(2) of the NCAT Act. Among other things, the Tribunal was required to take such measures as are reasonably practicable to ensure that each party had a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings: s 38(5)(c) of the NCAT Act. The Tribunal was required to seek to give effect to the "guiding principle", which is the facilitation of the just, quick and cheap resolution of the real issues in the proceedings, when exercising any power under the NCAT Act or interpreting the procedural rules: ss 36(1), 36(2). The guiding principle is reinforced by one of the objects of the NCAT Act, set out in s 3(d): to enable the Tribunal to resolve the real issues in proceedings justly, quickly, cheaply and with as little formality as possible. 2. The question of whether, by refusing to permit the Appellant to tender additional material at the hearing, the Tribunal breached s 38(5)(c) of the NCAT Act, requires consideration of the following contextual factors. 3. First, the Appellant had been on notice since July 2017 that any material he sought to rely on must be given to the Tribunal and the other parties before the hearing, or more correctly, within 14 days after lodging his application for review of the EPoA and within 21 days of being notified of his Sister's application for review. During the November hearing he acknowledged that he was aware of that requirement. 4. Second, there is no evidence, and nor is it asserted by the Appellant, that, because of some disabling factor he lacked the ability to understand or comply with the direction to provide his material before the hearing. The explanation he proffered for his failure to do so was lack of time. 5. Third, the Appellant's claim that his siblings had been permitted to hand up additional documents during the September 2017 hearing is unsupported and contradicted by the Sister. That claim was the basis for the Appellant's contention, made in the appeal, that he had a legitimate expectation that he would be permitted to hand up additional material at the 16 November 2017 hearing. 6. Fourth, the Tribunal was required to have regard to not only the likely prejudice the Appellant might suffer if his new material was not admitted, but also to the likely prejudice the other parties might suffer if the new material was admitted. The Tribunal concluded that, given the volume of the material, there was a risk that the respondent parties would be unable to properly consider it without an adjournment. 7. Fifth, the Tribunal gave the Appellant the opportunity to speak to the new material at the hearing. Relevantly, the material was, in effect, a combination of unsupported claims made by the Appellant and submissions he made about the conclusions to be drawn from those claims. 8. Sixth, the Appellant had a reasonable opportunity to consider and respond to the Sister's submissions, which he had received about nine days before the hearing. 9. The concept of procedural fairness is concerned with questions of practical justice: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6 at [37] (Gleeson CJ); Frost v Kourouche (2014) 86 NSWLR 214; [2014] NSWCA 39 at [41]. Given the nature of the material the Appellant sought to tender, together with the fact that he was given an opportunity to speak to it, we are not persuaded that he suffered any practical injustice as a result of the Tribunal's decision to refuse to permit him to tender that material. 10. Section 38(5)(c) of the NCAT Act required the Tribunal to give the Appellant a reasonable opportunity, not every requested opportunity, to be heard or otherwise have his submissions considered. We are not persuaded that, by refusing to permit the Appellant to hand up additional material at the hearing, the Appellant was denied a reasonable opportunity to be heard or otherwise have his submissions considered. 11. This ground of appeal is rejected. Ground 2 (b): Did the Tribunal fail to afford the Appellant a reasonable opportunity to present his case, by deciding to permit his brother participate in the hearing? 1. The Appellant asserts that he was refused a reasonable opportunity to present his case because the Tribunal refused to exclude his brother from the hearing. The Appellant contends that the Tribunal "reject[ed] his obvious distress" in the context of his brother's "violent intimidation, abuse and threats". 2. At the start of the hearing, the Appellant asked the Tribunal to exclude his brother from the hearing room, pointing out that his brother was not a party to the proceedings. The Appellant stated he was "not at all comfortable" being in his brother's presence, asserting that his brother had "been destructive and confounded these issues really seriously [sic]": T at 00:11:43. 3. The Tribunal refused to accede to that request. The Appellant then stated at T at 00:11:43: OK, but may I just say that he's been sending me threatening e-mails, quite sick and scary stuff, talking about murder suicide. He's going to, or they're going to exhaust me til they get their way, that sort of things. I don't feel comfortable with him in the room. 1. Hearings of the Tribunal are open to the public. The Tribunal may order that the hearing be conducted wholly or partly in private if it is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason: s 49(2) of the NCAT Act. 2. The Appellant and his brother had been in dispute for some time about many issues, including the manner in which the Appellant was managing the Subject Person's finances. Emails exchanged by the brothers shortly before the hearing, give an indication of the level of animosity between the two. In an email sent on 4 November 2017, the Appellant wrote, "You nasty little liar …you two [the Appellant's brother and the Sister] seriously breached the Act. I swear a solemn oath to exhaust you. Murder suicide". In an email sent on 7 November 2017, the Appellant's brother accused the Appellant of being "an evil manipulator who takes pleasure in setting people against each other … he has moved in with [the Subject Person] to get her money". 3. We will assume for current purposes that the Appellant felt uncomfortable with his brother being present in the hearing room and this caused him to experience feelings of distress. We will also assume that the Appellant perceived he was being "emotionally bullied" by his siblings. However, it does not follow that he was denied a reasonable opportunity to present his case. The transcript reveals that the Appellant participated fully in the hearing, responded at great length to questions asked by the Tribunal and made submissions addressing the issues the Tribunal identified as being relevant. 4. The contention that the Appellant was denied a reasonable opportunity to present his case, as a consequence of the Tribunal's decision to not exclude his brother from the hearing, is not established. 5. This ground of appeal is rejected. Ground 3: Was the Tribunal obliged to attempt to encourage the parties to come to an agreement, and if so, did the Tribunal fail to do so? 1. The Appellant contends that the Tribunal contravened the "underlying principles" of the NCAT Act by failing to "try to resolve issues via mediated resolution in the first instance, and to resort to formal hearing only if that fails". As the Appellant points out, the Tribunal neither used nor directed the parties to use a "resolution process". 2. Section 37 of the NCAT Act states: (1) The Tribunal may, where it considers it appropriate, use (or require parties to proceedings to use) any one or more resolution processes. … (2) A "resolution process" is any process (including, for example, alternative dispute resolution) in which parties to proceedings are assisted to resolve or narrow the issues between them in the proceedings. 1. Section 9 of the Interpretation Act 1987 (NSW) directs that in any Act, the word "may", if used to confer a power, indicates that the power may be exercised or not, at discretion. Neither the text, context, nor purpose of s 37(1) of the NCAT Act, indicates a contrary intention. While the Tribunal had the power to use a resolution process, or to direct the parties to use a resolution process, it was not bound to exercise that power. 2. This ground of appeal is misconceived. Ground 4: Was there "no evidence" to support the finding that the Appellant borrowed $10,000 to repay his credit card debt? 1. The Appellant contends that there was no evidence to support the finding at [44] of the reasons, that he borrowed $10,000 to repay his credit card debt (the challenged finding). He contends that the Tribunal misunderstood the evidence and that this infected its ultimate decision to make a financial management order. The challenged finding 1. It is necessary to place the challenged finding in context. 2. The Sister alleged that the Appellant was using the Subject Person's funds for his own benefit. In support of that claim, the Sister referred to, among other things, the Appellant's withdrawal of $10,000 from the Subject Person's bank account in July 2017. 3. In the course of the hearing, the Tribunal invited the Appellant to give an explanation for what the Sister dubbed as the "missing $10,000". He stated that in July 2017 he assisted the Subject Person withdraw $10,000 from an ATM in two instalments. The Appellant claimed he gave $6,000 to a solicitor and placed the balance of $4,000 "in cash under the bed, to pay for groceries": T at 01:37:53. The Appellant stated that the reason he gave $6,000 to the solicitor was because the Subject Person was being "forced against her will to stay in a place she didn't want to stay…pretty serious stuff. I have a responsibility to advocate": T at 1:40:01. The Appellant said he believed that, as attorney, he had a right, indeed "a duty", to take legal advice in circumstances where the Subject Person was "begging to get out of hospital" and return home: T at 1:34:26. As noted earlier, the Subject Person was hospitalised in May 2017 following a fall. 4. In answer to a question from the Tribunal, the Appellant stated that he had placed the $4,000 under a bed because his brother had threatened to "lock" his mother's account: T at 01:41:41. He reasoned that if his brother had acted on that threat, neither he nor the Subject Person would have been able to pay for food and other living expenses: T at 01:41:41. 5. The Appellant told the Tribunal that in August 2017 he borrowed $10,000 from his credit card provider and deposited the same amount into his mother's account: "So my intention were, I acted in absolute good faith, I wasn't at all keen on the original cash business [sic]": T at 01:39:30. In August 2017, the Appellant transferred $10,000 from his bank account to the account of the Subject Person. The scope of the challenged finding of fact 1. The reference to the challenged finding is contained in [44] of the reasons: [ZGW] told the Tribunal that he moved in to care for [ZGX] in May 2017. He said at the time he had been on leave or out of work and had not been in a good financial state and his mother had been in hospital. He said since moving in he had been relying on [ZGX's] good will. He agreed that he is not paying any rent and has used some of her money to support himself as well as [ZGX]. He said it has been costly trying to help her. He said he had borrowed $10,000 to pay his credit card because he was awaiting approval for the carer's pension. He said he now contributes to the shopping and petrol money. He said he has purchased a telephone for [ZGX], stating it was at his house in Tamworth or at [ZGX's] house. [ZGW] said he has fixed up the television to enable internet TV and he has also performed general maintenance, fixing or installing new air conditioning and installing safety equipment in her home. [ZGW] confirmed to the Tribunal that he made regular purchases of alcohol out of [ZGX's] finances stating that [ZGX] liked a drink and he also brought [sic] alcohol for himself. Regarding the $10,000 payment to the solicitor, [ZGW] said this was [ZGX] wanted this. [ZGW] said he had sold [ZGX's] car to a car dealer for $3000.. (Emphasis added.) 1. An issue of some significance to this ground of appeal is the scope of the challenged finding. The challenged finding could be interpreted in one of two ways. First, that the Appellant borrowed $10,000 to repay his credit card debt. Alternatively, that the Appellant borrowed $10,000 from the Subject Person. The distinction is significant. If the Tribunal interpreted the finding in the first way, then the Tribunal simply found or assumed that the Appellant repaid a $10,000 credit card debt. If the Tribunal interpreted the finding in the second way, then the Tribunal found or assumed that the Appellant had borrowed $10,000 from the Subject Person to repay a credit card debt. On the latter interpretation, the challenged finding takes on a more sinister character and is consistent with the allegation made by the Sister that the Appellant had abused his position as attorney and had taken money from the Subject Person, at a time when the Subject Person lacked decision-making capacity. 2. In our view, when read contextually, [44] of the reasons indicates that the Tribunal assumed or found not only that the Appellant had borrowed $10,000 to repay a credit card debt, but also that he had borrowed the money from the Subject Person. In reaching that conclusion we note that the focus of the paragraph is on the financial interaction between the Appellant and the Subject Person. The sentences immediately preceding the challenged finding refer to the Appellant's financial reliance on the Subject Person: relying on her good will, not paying her rent, using some of her money to support himself. The balance of the paragraph focusses on the claims made by the Appellant about contributing to the finances of the Subject Person, directly or in kind. His claim to have withdrawn $10,000 from his own credit card account to repay the $10,000 withdrawn from the Subject Person's account makes no sense, in the context of the paragraph, unless the Appellant had borrowed $10,000 from the Subject Person. The Appellant was impecunious and the Subject Person had money. The money was, according to the Appellant, being used for the Subject Person's benefit (solicitor's fees, household expenses). We are satisfied that the Tribunal found or assumed that the Appellant borrowed $10,000 from the Subject Person. Does the challenged finding amount to an error of law? 1. It is an error of law to make a finding of fact for which there is no evidence: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355-6; [1990] HCA 33; Kostas v HIA Insurance Services Pty Limited [2010] HCA 32 at [91]. A finding of fact which is supported by at least some evidence does not reveal an error of law, even if it was made by ignoring the probative force of the evidence which supports a different finding of fact: Azzopardi v Tasman UBE Industries Pty Limited (1985) 4 NSWLR 139 at 155-156 (Glass JA). Where judgment is formed on the basis of conflicting indicators, it will be difficult, if not impossible, to establish a "no evidence" ground of review: L & B Linings Pty Limited v WorkCover Authority of NSW [2012] NSWCA 15 at [34] (Basten JA). 2. Where, as in this case, the rules of evidence do not apply, to establish a "no evidence" error there must be an absence of material, whether strictly admissible according to the rules of evidence or not: Smith & Anor v Collings Homes Pty Ltd & Anor [2004] NSWCA 75 at [32]; South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16 at [129]. 3. The extracts from the transcript set out above reveal that the Appellant did not claim, nor did the Sister allege, that the Appellant borrowed $10,000 to pay his credit card, or borrowed that money from the Subject Person. Rather, the Appellant claimed that he withdrew $10,000 from his credit card account to repay the $10,000 that had been withdrawn from the Subject Person's account three weeks earlier. The inescapable conclusion is that the Tribunal misunderstood the evidence given by the Appellant. 4. This is not a case where there was some material to support the challenged finding, or from which that fact could be inferred. The proposition that the Appellant had borrowed money from the Subject Person to pay his credit card, was neither alleged, nor put to the Appellant in the proceedings. It was a finding for which there was no evidence and amounts to an error of law. Should the Tribunal exercise its power to extend the time to lodge the appeal? 1. Rule 25(4) of the Civil and Administrative Tribunal Rules 2014 (NSW) required the Appellant to file the Notice of Appeal, no later than 28 days after receiving written reasons for the decision under appeal. The Appellant received written reasons on 12 February 2018 and filed the Notice of Appeal on 29 May 2018, making it out of time. 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 time to lodge an appeal is exercised. That power must be exercised judicially having regard to the "guiding principle": s 36 of the NCAT Act; Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 ("Jackson") at [18]. 3. In Jackson at [22], the Appeal Panel identified factors generally relevant to the exercise of the power to extend the 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; 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 were to be granted. 4. The Appellant pointed out that he did not receive the reasons for the decision under appeal until three months after the decision was made. He asserts that the late receipt of reasons meant he was unable to meet the 28-day deadline. He claimed that a further reason for being unable to meet the deadline was because he was awaiting the decision of the Appeal Panel, in his appeal against the Tribunal's decision to make a guardianship order in September 2017. That appeal was heard in February 2018. The Appeal Panel's decision was not handed down until 30 May 2018: ZGW v ZGY [2018] NSWCATAP 132. Added to these difficulties, the Appellant claimed that he was unable to deal with the task of filing a Notice of Appeal because he was pre-occupied with personal difficulties. 5. For the following reasons, we have decided to exercise the discretionary power to extend the time for lodging the Notice of Appeal. 6. First, while the explanation proffered by the Appellant for the delay in lodging the Notice of Appeal was not compelling, it was nevertheless adequate. 7. Second, as discussed above, while most of the grounds of appeal were unmeritorious, one ground of appeal disclosed an error of law. 8. Third, while the Sister had been inconvenienced by the late filing of the appeal and is no doubt eager to put to an end the long running saga with the Appellant, in our view the prejudice she faced by the late filing of the appeal could not be characterised as substantial. Significantly, the Subject Person will not suffer any material prejudice by the late filing of the appeal. 9. 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 there is an adequate explanation for lodging an appeal out of time, and whether a respondent will suffer substantial prejudice, are resolved, the Tribunal must ask whether or not justice can be done to all parties if the matter proceeds to an appeal, having regard to the guiding principle. It is to that last question that the considerations outlined in Jackson are ultimately directed. While the considerations are finely balanced and the length of the delay is significant, we have decided nonetheless to extend the time for lodging the appeal. Determination of the appeal 1. Section 81(1) of the NCAT Act states that in determining an internal appeal, the Appeal Panel may make such orders as it considers appropriate in light of its decision on the appeal, including (but not limited to) orders that provide for any one or more of the following: 1. the appeal to be allowed or dismissed, 2. the decision under appeal to be confirmed, affirmed or varied, 3. the decision under appeal to be quashed or set aside, 4. the decision under appeal to be quashed or set aside and for another decision to be substituted for it, 5. the whole or any part of the case to be reconsidered by the Tribunal, either with or without further evidence, in accordance with the directions of the Appeal Panel. 1. The question of what orders are appropriate in light of our decision that the Tribunal made an error of law, requires consideration of whether the challenged finding was material to, or likely to have made a difference to, the outcome of the decision under appeal: Stead v State Government Insurance Commission [1986] HCA 54; 161 CLR 141 at 145. 2. The challenged finding was not a "jurisdictional fact", that is, the challenged finding was not a precondition to the exercise of the Tribunal's power to make a financial management order. The relevant jurisdictional fact was that the Tribunal had reached a state of satisfaction that there was a need for another person to manage the Subject Person's affairs on her behalf: s 25G(b) of the Guardianship Act. The power conferred by the Guardianship Act 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 subsections (a), (b) and (c) of s 25G of the Guardianship Act. They are: that the person is not capable of managing their affairs; there is a need for another person to manage those affairs on the Subject Person's behalf; it is in the Subject Person's best interests that the order be made. 3. The challenged finding is contained in the reasons at [38]-[54], where the Tribunal considered the question posed by s 25G(b) of the Guardianship Act. The conclusion reached by the Tribunal that there was a need for another person to manage the Subject Person's affairs, rested on the finding that it was "[in]appropriate for the Appellant to continue as attorney to manage [the Subject Person's] finances": at [51]. In turn, that primary finding was based on a number of intermediate findings, that: * If the Appellant were to continue in the role of the attorney, it is likely that the Appellant would use the estate of the Subject Person to advance his own interests and quality of life, rather than those of the Subject Person": at [25]. * The Appellant has "some financial conflicts in his current role as attorney in his management of [the Subject Person's] finances", including by his "own admission that [he was] in financial stress and relying on the goodwill of [the Subject Person]": at [51]. * The Appellant was "obtaining a personal benefit not specifically provided for in [the EPoA]": at [51]. * The Appellant was "not operating in a transparent and credible way…[and] did not provide any documentary evidence about [the Subject Person's] current financial status to the Tribunal": at [51]. * The Appellant's demeanour was not open and reliable: at [51]. 1. These intermediate findings, in particular that the Appellant had "some financial conflicts … in his management of [the Subject Person's] finances", and that the Appellant was "obtaining a personal benefit" from the Subject Person, were based on a number of findings of fact, of which the challenged finding was but one. From the reasons, it is not possible to determine the relative importance the Tribunal attached to the challenged finding, in making these intermediate findings. However, in our view the challenged finding could not be said to be peripheral or inconsequential to those intermediate findings. It was a material fact that formed part of the Tribunal's chain of reasoning, on which the intermediate findings, and the ultimate conclusion that there was a need for another person to manage the Subject Person's affairs, were based. The challenged finding might have made a difference to the Tribunal's ultimate decision that the pre-condition to the exercise of the power to make a financial management order, was satisfied. 2. Accordingly, we have decided to allow the appeal. The decision under appeal is remitted to the Guardianship Division of NCAT for reconsideration in accordance with these reasons. The decision under appeal is set aside but not until such time as it has been remade by the Guardianship Division of NCAT. Given the passage of time since the decision under appeal was made, it is appropriate that the Tribunal determine whether new evidence should be allowed, after hearing submissions from the parties. 3. In our view, there is no persuasive reason to remit the matter to a differently constituted Tribunal. The constitution of the Tribunal will require consideration of practical matters, including member availability. For that reason, in accordance with usual practice, the Head of the Guardianship Division of NCAT should decide the constitution of the Tribunal. Orders 1. The time for lodging the appeal is extended to 29 May 2018. 2. Appeal allowed. 3. The orders made by the Tribunal on 16 November 2017 are set aside. 4. The matter is remitted to be reconsidered by the Tribunal further evidence if permitted by the Tribunal. 5. Order 3 does not come into effect until the Tribunal re-determines the application. ********** ​ 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: 12 December 2018