Civil and Administrative Tribunal New South Wales Medium Neutral Citation: ZHT v NSW Trustee and Guardian [2019] NSWCATAP 29 Hearing dates: 7 December 2018 Date of orders: 25 January 2019 Decision date: 25 January 2019 Jurisdiction: Appeal Panel Before: Hennessy LCM, Deputy President S Frost, Senior Member Decision: (1) Leave to appeal refused. (2) Appeal dismissed. Catchwords: APPEAL – no question of law identified – whether leave to appeal should be granted Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) NSW Trustee and Guardian Act 2009 (NSW) Cases Cited: Collins v Urban [2014] NSWCATAP 17 Category: Principal judgment Parties: ZHT (Appellant) NSW Trustee and Guardian (Respondent) Representation: Appellant (self-represented) K Kwan (Legal Officer, NSW Trustee and Guardian) (Respondent) File Number(s): AP18/38858 Publication restriction: The publication of the name of either the Appellant, the protected person or any member of the protected person's family, including the publication of any information, picture or other material that identifies any one of more of those people, or is likely to lead to their identification, is prohibited. Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Administrative and Equal Opportunity Division Citation: DKC v NSW Trustee & Guardian [2018] NSWCATAD 167 Date of Decision: 3 August 2018 Before: C Grant, Senior Member File Number(s): 2018/00083622 reasons for decision Introduction 1. ZHT, the appellant, has a close personal relationship with a person whose financial affairs are managed by the NSW Trustee and Guardian (NSWTG). We cannot name that person but we will refer to him as the 'protected person'. ZHT claims she incurred expenses on behalf of the protected person. She applied to NSWTG for reimbursement of those expenses but the claim was rejected. She sought review of that decision in the Administrative and Equal Opportunity Division (AEOD) of the Tribunal. 2. The amount of reimbursement that ZHT initially claimed was over $200,000. However, she abandoned parts of the claim during the AEOD hearing, either because she lacked evidence to support them or because she simply no longer wished to pursue them. Ultimately the Tribunal dealt with 13 separate reimbursement amounts totalling almost $90,000. 3. The Tribunal found the majority of ZHT's remaining claims either lacked supporting evidence or were expenses that the protected person was not liable for. It found that part of only one of the claims, amounting to $206.24, was supported by evidence. However, the Tribunal also found that ZHT was not a credible witness and had made numerous claims that were not supported by evidence. Therefore, and having regard to the relevant principles (NSW Trustee and Guardian Act 2009 (NSW)), including the duty to give paramount consideration to the welfare and interests of the protected person, the Tribunal declined to vary the decision under review. 4. ZHT now appeals to the Appeal Panel from the Tribunal's decision. Jurisdiction 1. Section 80 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) provides that an appeal against an internally appealable decision may be made to an Appeal Panel by a party to the proceedings in which the decision is made. An internal appeal may be made as of right on any question of law, but otherwise only with the leave of the Appeal Panel. The appeal 1. ZHT confines her appeal to claims 1 and 2 of the 13 claims considered by the Tribunal at first instance. Claim 1 is $45,500; claim 2 is for the $206.24 mentioned in [3] above. 2. ZHT's case is simply that the Tribunal's decision is wrong. In support of her case she provides a four-page document headed 'Grounds of Appeal' which contains references to various excerpts of the Tribunal's reasons and seeks to address some of the evidentiary shortcomings identified by the Tribunal. 3. She also provides the following reasons why the Appeal Panel should grant leave to appeal: * Additional information to show the source of funds in my bank account is now available. * English is not my first language and I did not understand that I would need this evidence. * I did not have an interpreter at the hearing. * The decision is not based on evidence, the decision is based on guessing. NSWTG's reply 1. NSWTG's reply to the grounds of appeal is to the effect that ZHT has not identified any error of law or error of judgment on the part of the Tribunal at first instance. 2. In reply to ZHT's application for leave to appeal, NSWTG says: * The Appellant has not identified an error of law. * The Appellant's lack of evidence for her pecuniary claims formed the basis of NSW Trustee and Guardian's original decision, Internal Review of Decision, and the appeal to NCAT. Therefore the Respondent rejects the Appellant's submission that she did not understand she required evidence of her claims. * At the hearing on 15 June 2018, the Appellant did not request a translator despite having the opportunity to do so. * The Appellant states that the original NCAT decision was based on 'guessing'. The Respondent objects to this and submits that each of the Appellant's claims [was] addressed in detail by the presiding Member. Consideration 1. ZHT does not identify any error of law in the Tribunal's decision. Therefore, leave to appeal is required from the Appeal Panel. 2. Ordinarily it is appropriate to grant leave to appeal only in matters that involve issues of principle; questions of public importance or matters of administration or policy which might have general application; an injustice which is reasonably clear; a factual error that was unreasonably arrived at and clearly mistaken; or the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed: Collins v Urban [2014] NSWCATAP 17 at [84]. 3. We have reviewed the Tribunal's decision at first instance and have given full consideration to the matters raised by ZHT in her application for leave to appeal. 4. Far from being based on guesswork, as ZHT claims, the Tribunal's decision was carefully undertaken, was clearly and fully explained, and was based soundly on the evidence before it. 5. None of the indicative factors identified in Collins v Urban are present here. There is no issue of principle involved, and there are no questions of public importance or matters of general application that need to be addressed or considered. The Tribunal's decision involved an entirely orthodox application of a standard reasoning process to the material before a decision-maker on administrative review. In fact, on the evidence considered by the Tribunal, we do not see how a reasonable decision-maker could have come to any different conclusion. 6. For completeness, we have examined the additional material ZHT provided to the Appeal Panel and it would not support a decision any more favourable to ZHT than the decision made by the Tribunal at first instance. Orders 1. In those circumstances 1. Leave to appeal refused. 2. Appeal 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: 25 January 2019