AW v WW (No 2)

In law, as in life, simple questions are not always simple to answer. This appeal from a decision of the Guardianship Division of the NSW Civil and Administrative Tribunal turns on a simple question: what is a question of law? However, “the expression “question(s) of law” and cognate expressions are not deployed uniformly in the statute books and … there is no universal meaning or understanding of what is a question of law”: Orr v Cobar Management Pty Ltd (2020) 103 NSWLR 36; [2020] NSWCCA 220 at [40], per Bathurst CJ and Bell P; Johnson, Garling and Lonergan JJ agreeing).

The plaintiff AW is the only child of the defendant (Mrs W), an 89 year old widow whose husband died in 2015.

By Reasons for Decision delivered on 28 November 2022, the Tribunal in its Guardianship Division, constituted by R H Booby, Senior Member (Legal), W E Blaxland, Senior Member (Professional) and A Healy, General Member (Community) dismissed a guardianship application and a financial management application brought by AW in respect of Mrs W.

In 2021, Mrs W had appointed “KB” (a retired solicitor and cousin by marriage) and ”KS” (a solicitor) as her guardians jointly and severally under the Guardianship Act 1987 (NSW) (GA). Earlier in that same year, Mrs W had revoked an appointment of AW as her enduring attorney and appointed an accountant, “JM”, as her new enduring attorney pursuant to the Powers of Attorney Act 2003 (NSW).

AW did not challenge the validity of those appointments. However, he contended before the Tribunal that it was in Mrs W’s best interests that those appointments be replaced by the appointment of a financial manager and the appointment of a guardian.

The Tribunal concluded that Mrs W was a person for whom it could make a guardianship order. However, by reference to her current guardianship arrangements, the Tribunal concluded there was no need for it to appoint a guardian. In relation to the application for a financial manager, the Tribunal was satisfied that Mrs W did not lack the capacity to manage her affairs as those affairs were presently constituted and was therefore not satisfied that they should make a financial management order.

Because the present appeal was purportedly brought as of right, there was no dispute that it could only be brought on a question of law. However there was a vigorous dispute as to whether the matters raised by AW in the amended summons constituted a question of law.

The Tribunal found that Mrs W did not suffer from dementia. The appeal was pressed on what Senior Counsel for AW described as a “narrow basis” (Tcpt, 26 October 2023, p 6(50)). This was that the Tribunal had failed to address relevant evidence and had failed to take into account relevant facts such that it had failed to consider the conditions of delirium, delusion, paranoia and confusion, all of which it was submitted were conclusions available on the evidence before the Tribunal. While these did not amount to dementia, they could affect cognitive function, such that they were still capable of making Mrs W vulnerable to the people whom she trusted, including the solicitor KS, in whom AW contended his elderly mother placed too much trust.

For the reasons which follow, the appeal will be dismissed. The reason, in summary, is that in the relevant provision of the GA a “question of law” means a pure question of law, and not a question of mixed fact and law (or anything else). The question advanced by AW is not a pure question of law because it requires the Court to investigate the facts before the Tribunal in an inquiry which is, first, less and other than the demanding inquiry undertaken to determine jurisdictional error for grounds such as ‘Wednesbury unreasonableness’ or constructive failure to exercise jurisdiction and, consequentially, is in reality an invitation to a merits review. [1] The assertion in the question posed that it raises a question of law is not self-fulfilling.

Mr C D Wood of Senior Counsel appeared for AW. Ms R L Seiden of Senior Counsel appeared with Mr N J Olson of Counsel for Mrs W.

The appeal was governed by clause 14(1)(b) of schedule 6, part 6 to the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act):

In AW v WW [2023] NSWSC 724, Lindsay J dismissed AW’s application in these proceedings for leave to appeal on grounds other than a question of law.

It was submitted for AW that a question of law was raised by these paragraphs of AW’s amended summons (being the only paragraphs that were pressed at the hearing of the appeal):

The hearing before the Tribunal extended over two days. AW and Mrs W were each represented by senior counsel. The Tribunal received evidence from eleven witnesses, including AW and Mrs W, other lay witnesses, and four experts with expertise variously in geriatrics, neuropsychology and psychology. There was cross-examination.

The Tribunal also had extensive documentary evidence before it. The material before the Tribunal was tendered in the appeal hearing before me and comprised 10 volumes totalling 3100 pages.

The Decision is 89 pages long in 206 paragraphs. It is, on its face, detailed and thorough. It includes:

After setting out the evidence and submissions at length, the Tribunal turned to the application for guardianship and identified the questions which the Tribunal had to decide:

There is no suggestion that the Tribunal addressed or asked itself the wrong questions. The primary focus of the Tribunal was, with respect correctly, whether Mrs W was “a person in need of a guardian” for the purposes of GA s 14, being “a person who because of a disability is totally or partially incapable of managing his or her person” (GA s 3(1)).

The Decision then identifies that the Tribunal had been provided with conflicting evidence regarding whether Mrs W could be considered to have dementia. Having considered that evidence, the Tribunal concluded (at [141]):

However, the Tribunal did go on to find, by reference to other medical and psychiatric evidence, that Mrs W had anxiety and depression. This lead to these findings:

Turning to that issue, the Tribunal noted that Mrs W had appointed KB and KS as her enduring guardians, in which capacity they were appointed to make decisions where necessary about her accommodation, access to services, health care and medical/dental treatment.

The Tribunal found:

The Tribunal went on to express the view that there was no evidence of a current need for a guardian to make medical decisions for Mrs W or that if such a need arose, the enduring guardians would fail to act in her best interests in relation to such matters.

The Decision reveals that the Tribunal then went on to consider expressly AW’s submission that her solicitor, KS, was “in a position to exert undue influence on her and that where there is a solicitor/client relationship, undue influence needs to be disproved”. The Decision discloses a reasoned basis for the Tribunal’s rejection of that submission.

In relation to the guardianship application, the Tribunal concluded

The Tribunal followed a similarly structured approach in considering AW’s financial management application, by reference to GA s 25G:

The Tribunal noted:

After considering the evidence, the Tribunal concluded:

The Decision goes on to record consideration of the allegation that KS had taken financial advantage of Mrs W. The Tribunal gave several reasons for rejecting that submission, including in relation to allegations about professional charges levied by KS. The Tribunal concluded:

Having reached that conclusion, while it was not necessary for the Tribunal to go on to consider the question of whether there was a need for a financial management order, the Tribunal did so, in its words “for greater certainty”. As to this, the Tribunal concluded:

Similarly, while it was not necessary to do so, again “for greater certainty” the Tribunal considered whether a financial management order would be in Mrs W’s best interests. The Tribunal concluded :

Mr Wood SC encapsulated his client’s case in this submission (Tcpt, 16 October 2023, p 6(50) – p 7(21)):

Mr Wood SC eschewed reliance on ‘Wednesbury unreasonableness’ or any other basis that went so far as to say that there had been an actual or constructive failure on the part of the Tribunal to exercise its statutory function. In exploring the submission being put on behalf of AW, this exchange took place between bar and bench (Tcpt, 16 October 2023, p 18(3)–(26)) (emphasis added):

The matters which it was submitted the Tribunal did not consider were specified in Mr AW’s written submissions:

Mr Wood SC accepted that the first of these matters was not particularly persuasive because this matter was expressly referred to by the Tribunal in its summary of medical evidence at [32] of the Decision.

Mr Wood SC further submitted that the failure to take into account a consideration that was made mandatory, or in his submission even necessary, by the relevant legislation could amount to an error of law. The failure to address relevant evidence going to a point that was necessary to decide was a subset of that error of law. Mr Wood accepted that it was not open to his client to contend that an error of law had occurred if the Tribunal reached a conclusion that was said to be against the weight of the evidence if it had weighed up competing evidence and accepted the evidence of one person over another. However, in his submission, provided that evidence went to what he called a necessary consideration, the ignoring of that evidence was an error of law. He also submitted that the Tribunal having decided that Mrs W was a person in respect of whom a guardianship order could be made, had overlooked the matters referred to in [34] above in its consideration of whether a guardianship order should be made.

Mr Wood SC laid considerable emphasis on written submissions in reply to the Tribunal dated 9 October 2022 prepared by a senior counsel then appearing for Mr AW. Those submissions attached a number of documents which it was submitted supported the orders which Mr AW sought from the Tribunal. These documents form the basis of the list set out in [34] above. The submissions referred to the evidence in relation to Mrs W being prescribed Quetiapine. They went on to refer to various parts of an expert report from Professor Rosenfeld (a highly experienced geriatrician whose evidence was ultimately not preferred by the Tribunal) which it was submitted identified “numerous and complex medical problems affecting Mrs W”. However, importantly for present purposes, that part of the submission then focuses on the issue of dementia by concluding “that failure [JS’s view that Mrs W did not require psychological assessment] is all the more significant if, as Professor Rosenfeld opines Mrs W is more likely than not to be suffering from still more serious conditions – namely, progressive neuropsychological impairments and the dementia syndrome associated with brain vascular diseases”.

Mr Wood SC placed particular emphasis on paragraphs 9 and 10 of those submissions in reply:

He submitted that the Tribunal did not take into account the matters referred to in those paragraphs. Furthermore, by reference to the clinical notes referred to, it was contended that there was “a clear basis for the Tribunal to reach a conclusion that [Mrs W] suffered from conditions that made her vulnerable and the Tribunal did not address that point” (Tcpt, 16 October 2023, p 29(37)-(40)). He submitted that by reference to the submissions in reply and those paragraphs in particular, it had been put to the Tribunal that Mrs W suffered from those ailments. The Tribunal, on AW’s case, ought to have directed itself to whether there was any condition other than anxiety or depression (which it did find Mrs W suffered) that was a lesser condition than dementia, which should have informed the exercise of its discretion as to what steps ought to have been taken to protect Mrs W’s interests.

It was also submitted that senior counsel then appearing, through these submissions, was inviting the Tribunal (which included a medical member) to consider the clinical notes and to assess the conditions which were referred to in them. That being said, however, Mr Wood SC accepted that nowhere in the submissions had the Tribunal been invited to make specific findings about, for example, delirium as a matter to be taken into account in determining the ultimate question of Mrs W’s capacity. Nevertheless, it was essential for the Tribunal to consider all conditions that might bear upon that question, whereas the contention was that they had only considered anxiety, depression and stress.

Having set out the emphasised paragraphs from the submissions in reply in [38] above, it convenient at this point to record the Court’s acceptance of Ms Seiden SC’s submission that it is apparent from the Decision that the Tribunal had not overlooked the matters to which those paragraphs had referred. So much appears from these parts of the Decision:

Finally, it was submitted that in declining to make a financial management order, the Tribunal had again failed to take into account precisely the other medical conditions of which there was evidence (other than anxiety and depression) which should have led to the finding that she was incapable of managing her financial affairs.

Ms Seiden SC’s submissions for Mrs W included close reference to a number of authorities. I shall return to some of these in [49] and following below. With no disrespect intended to what were very thorough submissions, they may be summarised in five essential propositions.

First, “the question of law” in the NCAT Act schedule 6 part 6 clause 14 (1)(b) is a “pure question of law”.

Second, that question of law must be apparent on the face of the question. That was not the case here. The claim disclosed by the amended summons (see [13] above) was that the Tribunal had failed to make certain findings of fact and that complaint raises a question of fact rather than a pure question of law.

Third, it was not open to AW to raise a question of fact by no more than the recitation of the formula that a question of law arose. What AW was really raising was an issue of sufficiency of evidence and what weight the Tribunal should have given to that evidence. That is not a question of law.

Fourth, there was no suggestion that the Tribunal had failed to take into account a mandatory consideration in the sense considered by the High Court in Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24.

Fifth, in any event, it was evident from the Decision that the Tribunal did consider whether Mrs W suffered from delirium, delusions, paranoia or confusion.

The first question for determination is what is the proper construction of “question of law” in clause 14(1) of part 6 schedule 6 of the NCAT Act. I set it out again here for convenience:

In Orr (at [40] per Bathurst CJ and Bell P; Johnson, Garling and Lonergan JJ agreeing) it was said of the expression “question of law” that:

While Orr concerned the meaning of “question of law” in the context of a referral to the Court of Criminal Appeal under section 5AE of the Criminal Appeal Act 1912 (NSW), the following passages from the judgment of the Chief Justice and President (as Bell CJ then was) are equally applicable to the case at bar:

Their Honour’s exclusion at [109] of “a question which may ultimately disclose an error of law depending on an analysis of the facts but where this cannot be known without scrutiny of the facts” is a reminder of one source of complication in this area of discourse, being that some questions of law, properly framed and understood as such, will require an examination of the facts. However, in my respectful opinion, this latter category is generally and necessarily confined to submissions of jurisdictional error on grounds such as ‘Wednesbury unreasonableness’ or constructive failure to exercise jurisdiction. This reflects the nature of such challenges which the High Court summarised in its recent judgment of Mounib Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2 (emphasis added):

The Court accepts Ms Seiden SC’s submission that in the context of the present appeal, a “question of law” means a pure question of law, that is to say not a mixed question of law and fact or anything else. This conclusion derives from the terms of clause 14(1) itself, fortified by the context that it concerns appeals from a specialist division of the Tribunal (schedule 6 being concerned with the Guardianship Division of the Tribunal). The language of clause 14(1) is consistent with a statutory purpose of recognising that specialisation by affording what might be termed an assumption (not presumption) of finality to the decisions of the Tribunal. This is done, first, by making appeals from interlocutory decisions of the Tribunal subject to a grant of leave. The clause then goes on to “any other kind of decision” (that is to say, any decision other than an interlocutory decision) by providing for an appeal as of right “on any question of law” as opposed to requiring the leave of the Court for an appeal “on any other grounds”. The overall scheme of clause 14 is clear from its terms that the path to an appeal to this Court is a narrow one, largely controlled by the requirement for leave, save for an appeal as of right on a question of law. This bespeaks the most confined construction of the words “question of law”, being a pure question of law. The repeated use of the word “any” does not derogate from that conclusion.

For the sake of completeness, I should record that one of the arguments advanced for Mrs W was that in construing what may be a “question of law” within a particular statute, the words usually carry the same meaning as they do when used elsewhere in the statute. I express no view on that proposition. This argument then led to the submission that this Court has already confined an appeal under GA s 83 Act (being appeals to this Court from, broadly, appeals internal to the Tribunal) with leave on a “question of law” to a pure question of law. While I accept that the two decisions relied upon for that proposition (Wilson v Chan & Naylor Parramatta Pty Ltd atf Chan & Naylor Parramatta Trust [2020] NSWCA 62 and Thomas and Naaz Pty Ltd v Chief Commissioner of State Revenue [2023] NSWCA 40 are consistent with that proposition, I do not think it strictly forms part of the ratio in either case. However, for present purposes nothing turns on that reservation.

The second and dispositive question is, therefore, whether the relevant parts of the amended summons (set out in [13] above) disclose a pure question of law. It is the question itself which is the subject matter of the appeal and the question of law must be identified with precision: Ferella v Chief Commissioner of State Revenue [2014] NSWCA 378 and [22] per White J (Barrett and Leeming JJA agreeing). In approaching this question, I express my respectful agreement with and apply these observations of Young J (as his Honour then was) in Re R [2000] NSWSC 886 (which concerned a predecessor of clause 14(1)):

For the reasons which follow, and applying the overview of principle provided by Young J in Re R at [25], the Court finds that the question posed in the amended summons does not disclose a question of law.

Authority to which I have already referred (see [51] above) makes clear that something which is not a question of law cannot be converted into one by the formulaic assertion that it is a question of law. While clause 1E of the amended summons asserts that “a question of law arises”, it cannot rise higher than “the premises” upon which it relies. Those premises, being paragraphs 1, 1A and 1B of the amended summons when read as a whole constitute, in my respectful opinion, a fact based challenge to the effect that there was other evidence before the Tribunal that could or should have led to the conclusions for which Mr AW had contended before the Tribunal. As such, no pure question of law is disclosed.

The difficulty for AW in the present case is that the appeal does not rely on any of the kinds of grounds such as those adverted to by the High Court in Ismail which it may be accepted would give rise to a question of law. Such grounds were expressly disavowed by Mr Wood SC in pressing the narrow basis for which he contended. That narrow basis requires an examination of the facts for something quite different from, and in a sense less demanding than, the “high threshold” referred to by the High Court in Ismail. As such, it cannot be described as a pure question of law. Properly understood, it invites a review of the merits. This is because the references in paragraph 1E of the question posed to failure “to give proper and realistic consideration” or failure “to take into account considerations relevant” suffer from the difficulty identified by Spigelman CJ in Bruce v Cole (1998) 45 NSWLR 163 at 186 (Mason P, Sheller and Powell JJA agreeing) about such expressions:

Mr Wood SC was correct to describe the challenge as being brought on a narrow basis. Having eschewed claims of the kind referred to in Ismail, it was necessary for AW to bring his challenge within the rubric of failure to take into account a material consideration. However, I accept Ms Seiden SC’s submission that, in reality, the challenge was closer to one based on a complaint about the sufficiency of evidence (which does not raise a question of law), or in this case to the effect that there was sufficient other evidence to have found that a new guardian should have been appointed and a financial management order made. It is the combination of an acceptance that the Tribunal had exercised its jurisdiction with the emphasis on an alternative factual analysis of the evidence that was before the Tribunal that leads to the conclusion that the matters advanced for AW, while put with skill and precision, really amounted to a submission that the Tribunal had come to the wrong conclusion on the facts.

One aspect of the difficulty with AW’s case was manifested by describing attention to the specified medical conditions as being “necessary”. That was a term apt to confuse, not least because of its similarity to “mandatory”. However, AW’s case was not that that the Tribunal had failed to take into account a consideration that was mandatory in the Peko-Wallsend sense. Mr Wood SC did not attempt to demonstrate that the specific medical conditions said not to have been taken into account were required to have been taken into consideration by reference to the subject matter, scope and purpose of the GA (see Peko-Wallsend per Mason J (as his Honour then was) at 40).

Finally, there are two other reasons why the Court is not satisfied that a question of law as either set out in the amended summons or as explicated by Mr Wood SC during the course of argument has been made out in the present case.

First, by reason of the matters set out in [14], [15], [16] and [41] above, the Court is not prepared to infer that the considerations identified on behalf of AW as not having been taken into account were in fact not taken into account. The Tribunal records those pieces of evidence specifically or as to their effect in the course of the Decision. In any event, a decisionmaker such as the Tribunal “is not bound to refer to every item of evidence in framing its reasons….The Tribunal is required to set out its findings about essential facts, to indicate the legal principles it is applying and the chain of reasoning it has adopted”: Castro v Minister for Immigration and Ethnic Affairs [1997] FCA 40 at p 8 per Wilcox J.

Second, and related to the preceding point, an assessment of whether a question of law is raised where this Court is required to examine the evidence before the Tribunal cannot be undertaken without considering how the case was run before the Tribunal. Mr Wood SC fairly accepted that his client’s case below was not run on the basis that the Tribunal should make findings as to specified medical conditions which alone or in combination would support the orders sought by AW. On the contrary, it is clear from the detailed exposition in the Decision of the evidence that was put before the Tribunal that Mrs W’s conditions were presented to it in an undifferentiated or cumulative way, with the expert evidence which suggested Mrs W may be suffering from dementia being deployed as the tip of the forensic spear. The Court will be slow to find that a tribunal has erred for failing to consider a specific circumstance or reach a specific conclusion which it does not appear clearly to have been invited to consider or reach when the tribunal’s reasons appear to be comprehensive.

The parties will be given an opportunity to address both as to the form of orders to give effect to these reasons and as to costs.

In relation to the orders it may be sufficient for the amended summons to be dismissed. However, clause 14(4) of the NCAT Act provides:

There may be some reason of which the Court is presently unaware that would warrant an order that the Tribunal’s decision should be “confirmed” or “affirmed”.

As to costs, it may be necessary for the Court to hear argument about more than just the hearing before me. I note that at [28] of his judgment in AW v WW [2023] NSWSC 724, Lindsay J reserved the costs of the application before him for further consideration upon determination of the appeal.