Julie (a pseudonym) v John (a pseudonym)

HIS HONOUR: The application before the Court is an appeal from the decision of the Guardianship Division of the New South Wales Civil and Administrative Tribunal (Tribunal) to make a financial management order in respect of the affairs of the third defendant, an elderly woman, pursuant to the provisions of the Guardianship Act 1987 (NSW) (Guardianship Act).

The terminology that is used to describe persons who are the subject of applications under the Guardianship Act include variously: “the person to whom the application relates” (s 3F(2)(b)); “such persons” (s 4); “a person” (e.g. ss 3 [1] and 25E(1)); “the person concerned” (e.g. s 25F(a)); “the person” (e.g. s 25F(c)); the “person who is the subject of the application” (e.g. ss 25H(2)(b), 25I(1)); and “the person the subject of the application” (e.g. s 25I(2)).

The Tribunal’s approved form for making a financial management application is the form titled “Financial management application” made available on the Tribunal’s website. [2] That form uses similar terminology in respect of an application for financial management, making reference to “the person” and “person this application is about”.

For the purposes of the Guardianship Act, the term “protected person” is only used in relation to a person whose estate (or part of whose estate) is subject to a financial management order that is in force: s 25D Guardianship Act. The “estate” of a person is given to mean “the property and affairs of the person”: s 3 Guardianship Act.

The nature of the jurisdiction is such that one might expect a more endearing descriptor for the person who is the subject of a financial management application, being something more reverential than the relatively detached and depersonalised terminology of “person” in its various forms.

To dignify the third defendant, but to preserve her anonymity, I will give her the name “Olivia” (a pseudonym). To preserve her family and her community’s anonymity, I will assign other pseudonyms to the family members.

I have determined to allow the appeal. The appeal was argued by reference to seven separate grounds. The first ground (as argued) was a question of standing. My findings on the standing issue are sufficient to allow the appeal and set aside the orders of the Tribunal. On one view, it would not be necessary to address the other grounds. However, if I be incorrect in respect of my findings on the standing issue or any of the other sequential grounds which I have upheld, I have dealt with and made findings on all of the grounds of appeal.

On the hearing of the application, Mr Jones of counsel appeared for the plaintiff (Julie) and Ms Poukchanski of counsel appeared for the first defendant (John).

The Court was considerably assisted by their advocacy, for which I am most grateful.

Counsel provided outlines of submissions and supplemented and elaborated upon those submissions during the course of the hearing. I will cite the materials in the proceedings by reference to the Court Book (CB), transcript pages and exhibit numbers, and cite the submissions by reference to Mr Jones’ opening written submissions dated 7 June 2024 (POS), Ms Poukchanski’s opening written submissions dated 10 June 2024 (D1OS) and transcript pages.

Olivia is aged in her mid 80s. She married Oscar. There are three children of their marriage: John, Julie and Jane. John and Julie are in their late 50s. Jane passed away in 2012. [3] Oscar passed away a year later in 2013. John is married to Kylie and they have a child, Susan. Julie has a child from her first marriage, James. Julie is married to Robert.

John is estranged from his mother, Julie and Robert: CB 46[8].

The family have corporate interests and there are various professionals who assist, or have assisted, the family in respect of those interests.

Relevantly, in respect of Olivia’s affairs, the evidence refers to her involvement in two companies, Company A and Company B.

Company A was established by Oscar in the late 1960s. Olivia was appointed as a director of Company A in 1973 and Julie was appointed as a director in 2015: CB 298. Julie was also appointed as secretary of Company A in 2010: CB 298. Olivia and Julie are the only two directors of Company A. Company A has two ordinary shares, both of which are owned by Company B non-beneficially: CB 298-299.

Company B is a corporate trustee for four discretionary trusts which are named after Olivia, John, Julie and Jane, respectively. Olivia was appointed as a director of Company B in 2008 and Julie was appointed as a director and secretary in 2015: CB 315. Olivia has also been a secretary of Company B since 1973. Olivia and Julie are the only two directors of Company B. Company B has four ordinary shares, all of which are owned by Olivia beneficially: CB 315-316.

According to Julie, Company A is a company that was founded to sell craft supplies. While the company is still engaged in the sale of craft supplies, it also manages a property portfolio and other investments: CB 145[4]. The value of that portfolio appears to be in the tens of millions of dollars. Julie’s evidence indicates, and the Tribunal appears to have acknowledged (CB 50[25], 52[28], 59[57], 61[64]), that the purpose of Company A is to “perform as an income generating asset for the beneficiaries of the [trusts]”: CB 153[72], see also CB 137[71], 149[37].

Other professionals associated with Olivia include:

The trust deeds for the four discretionary trusts were not in evidence on the hearing before me. Nonetheless, Ms Poukchanski submitted, and it does not appear to be disputed, that the beneficiaries for each of the trusts are the same four family members, and the trusts are used as vehicles to distribute money (income or capital) to the named individuals.

The hearing was conducted on the basis of the evidence that was before the Tribunal. The evidence before the Court and the submissions during the hearing made particular reference to Olivia being a director of Company A and Company B and holding the shares in Company B.

At the conclusion of the hearing, Mr Jones drew to my attention to the fact that Olivia had resigned from her directorships of the companies at the end of last year and the beginning of this year, and that the shares in Company B had been transferred to Julie: T 74.23-.40. His reason for doing so was connected to a matter that I had raised at the commencement of the hearing, namely that, in light of the fact that the appeal was being heard approximately 15 months after the Tribunal had made its decision, I had wondered whether there was anything material that had occurred since that time of which I needed to be aware. Mr Jones (understandably) did not wish the Court to be misled with an incorrect impression that nothing material had occurred. For her part, Ms Poukchanski indicated that there was no trouble (i.e. difficulty) with the Court being made aware of those facts, but submitted that the Court was not entitled to take them into account: T 74.50-75.18. [4]

Mr Jones submitted, and Ms Poukchanski did not dispute, that the appeal must be assessed by reference to the position (i.e. the circumstances prevailing) as at the date on which the decision was made: T 3.39-.41.

I have determined the appeal accordingly, without reference to the facts disclosed by Mr Jones.

On 8 October 2022, John signed an application seeking a financial management order in relation to Olivia (application). On 21 October 2022, the application was filed with the Tribunal: CB 70-108 (including attachments).

On 5 November 2022, Julie and Robert lodged a submission form with the Tribunal seeking an order that John’s application be dismissed on the basis that it was vexatious, spurious, lacking in substance and misconceived: CB 113-116. The submission was accompanied by two attachments, consisting of a letter from Olivia dated 5 November 2022 and a video recording of Olivia taken on 5 November 2022: CB 116.

On 24 November 2022, a Senior Member of the Tribunal made the following directions and orders (CB 17):

Two hearings were held in relation to the application.

The first hearing was held on 14 December 2022 (first hearing). On that day, the Tribunal made orders committing Olivia’s estate to management under the NSW Trustee and Guardian Act 2009 (NSW) (NSWTG Act) and appointing the NSW Trustee and Guardian (NSWTG) as financial manager under an interim financial management order for a period of six months (first orders): CB 20. The Tribunal provided reasons for the first orders on 19 January 2023 (first reasons): CB 22.

In addition to the first orders, on 14 December 2022 the Tribunal made the following procedural orders and directions:

The first hearing appears to have been listed on the basis that it would potentially be a final hearing of the application. However, while Julie had previously sought a summary dismissal of John’s application, at the commencement of the hearing she made an application for adjournment. The hearing in substance became a form of interlocutory hearing dealing with the issues that I note below. It is clear that the Tribunal formed the view that an adjournment of the application was appropriate: CB 30[23]. The Tribunal considered that there was sufficient evidence that Olivia may lack capacity to manage her own financial affairs, and that a financial manager may need to be appointed to manage them, to require “a full hearing of the application take place, rather than the application be summarily dismissed”: CB 33-34[38]. The evidence from Olivia, Julie and Robert disputing some of that evidence was considered not to be sufficient to displace the need for a contested hearing where “these matters” (seemingly a reference to Olivia’s capacity to manage her own affairs and whether a financial manager may need to be appointed) “are properly ventilated and assessed on the evidence at hearing”: CB 34[39].

The second hearing was held on 22 March 2023 (second hearing). On that day, the Tribunal made orders committing Olivia’s estate to management under the NSWTG Act and appointing the NSWTG as financial manager. The orders specifically excluded part of Olivia’s estate from the financial management order, consisting of two bank accounts and a credit card. While the orders had the appearance of being fresh orders, it is unnecessary to determine whether the orders made were in fact a continuation and extension of the first orders or a discharge of the first orders and the making of fresh orders. The Tribunal provided reasons for the second orders on 5 May 2023 (second reasons): CB 43.

The Tribunal stated that the first reasons and the second reasons should be read together: CB 47[13].

There was no formal listing of issues before the Tribunal. However, the Tribunal’s reasons give some indication of the issues raised.

In the first reasons, the following issues were identified (as indicated by the bold capitalised heading at CB 24, and the bold headings at CB 25, 31).

In the second reasons, the following issues were identified (CB 45[1]).

Issues (2) and (3) in the second reasons reflect the grounds for making a financial management order under s 25G of the Guardianship Act.

The statutory framework which principally governs the practice and procedures of the Tribunal is set out in the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act).

In hearing an application for a financial management order, the Tribunal is:

In that statutory context, “evidence”, a term used in civil litigation, means the whole of the material before the Tribunal: Rawson Finances Pty Ltd v Commissioner of Taxation [2013] FCAFC 26; (2013) 296 ALR 307 (Rawson Finances) at [83] per Jagot J (Nicholas J agreeing).

The evidence and submissions which were before the Tribunal on the first hearing were not expressly listed in its reasons. However, it is possible to discern from the first reasons some of the materials which the Tribunal had before it.

On the first hearing, the Tribunal noted that the following people attended by videoconference and/or telephone and gave evidence: Olivia, John, Julie, Robert, Mr H and Mr L: CB 35-36.

On that occasion, the Tribunal had the following evidence and submissions before it:

In its first reasons, the Tribunal stated that it had been notified by Mr L that he did not wish the information in the document dated 14 December 2022 to be relied upon as, in providing the information, he had not fully taken note of the fact that John had asked him to file the document, rather than the Tribunal, he had not cleared it with the directors first and the information was or may be out of date: CB 28[11]. The Tribunal indicated that, given its obligation to act “in the paramount best interests” of Olivia, it could not simply ignore the “significant information” provided by Mr L: CB 28[12].

On the second hearing, the Tribunal noted that Olivia, Julie and Robert attended the hearing and gave evidence. It was further noted that John and Kylie were contacted by the Tribunal during the course of the hearing and gave evidence by audio-visual link: CB 68.

On that occasion, the Tribunal had the following evidence and submissions before it:

In its second reasons, the Tribunal referred to the factual and procedural background to the application, including its refusal to grant an adjournment to John at the commencement of the second hearing. By reference to the issues identified by the Tribunal in its second reasons (referred to above), the findings of the Tribunal were, in summary, as follows.

Olivia’s “estate” consisted of two personal bank accounts with ANZ, a superannuation account, an ANZ credit card, a Mercedes Benz car, an interest in a home purchased to house John and Kylie, the right to reside at a retirement complex and “a set of assets and liabilities arising from a trust and company” (being a reference to Company B and Company A, respectively): CB 48-49[19].

While Olivia was able to manage her “day to day” needs, the Tribunal was not satisfied that she was capable of “weighing complex information regarding the very significant property and business portfolio in relation to which she has significant formal legal responsibilities”: CB 56[44], 57[48]. In so finding, the Tribunal considered that Olivia’s directorships of Company A and Company B “must be taken into account in considering whether or not she is able to manage her own finances in her own best interests”: CB 56[44], 57[47]. Olivia was found to rely on Julie “almost completely” in the management of the companies, with a significant role also being played by Robert: CB 56-57[45]. That conclusion was drawn from Olivia’s responses to questions from the Tribunal, as the medical certificate of Dr M (opining that Olivia “is still capable of living independently and able to handle her finances, with support of her daughter”: CB 326) was not given “much weight”: CB 54[36].

The Tribunal found that there was a need to appoint someone to manage Olivia’s affairs “to ensure that her resources are well managed and used for her welfare and benefit”: CB 60[60]. Reference was made to: certain payments from Olivia’s bank accounts to John and one of the companies, in respect of which it was said that Olivia would not be capable of fully assessing or understanding the implications of (CB 58[51]-[52]); the failure by the “estate” to respond to requests from the NSWTG as interim financial manager, “bespeaking of a lack of transparency” (CB 59[55]); and Company A’s generation of tax losses, which caused the Tribunal to doubt that the company was “necessarily being well managed and managed in the interests of [Olivia]” (CB 59[57]-[59]).

Drawing on those matters and the “imbalance in the present arrangements” (specifically, the apparent imbalance in the benefits paid from Company A and the trusts) which were said to greatly advantage Julie and Robert’s family “to the relative near exclusion” of John and his family (CB 64[75]), “contributing to or exacerbating family division” (CB 63-64[74]) and “adversely impacting upon family relationships” (CB 64[76]), the Tribunal was satisfied that it was in the bests interests of Olivia that a financial management order be made: CB 61[64]-65[80]. That was despite Olivia expressing her satisfaction with the prior arrangements, and the fact that Julie and Robert adequately assisted her at a personal “day to day” level: CB 60[63]. As noted above, Olivia’s two personal bank accounts and credit card were excluded from the order: CB 65[81]-[82].

This appeal was commenced on 2 June 2023 by a notice of appeal filed on behalf of Julie in the Court of Appeal. On 2 August 2023, the proceedings were transferred to the Protective List in the Equity Division.

Julie is the plaintiff and John is the first defendant. The NSWTG is the second defendant and Olivia is the third defendant. The active parties in the proceedings are Julie and John. The NSWTG has not filed any appearance in the proceedings and, according to Mr Jones, has never indicated any intention to participate on the hearing of the appeal: T 2.39-.41. Mr Schmidt-Liermann, solicitor, filed a submitting appearance on behalf of Olivia on 1 February 2024: CB 15.

On 28 June 2023, procedural orders were made by the Court of Appeal. A notation was made that, pursuant to the Court Suppression and Non-publication Orders Act 2010 (NSW) (CSNPO Act), the names of the parties be suppressed until the conclusion of the proceedings: CB 39. That appears to have been made as an interim order: s 10 CSNPO Act. There is no appropriate reason to continue to suppress the name of the NSWTG and I do not continue the order in that respect.

On 14 August 2023, other procedural orders were made by Registrar Walton.

On 4 September 2023, pursuant to leave given on 14 August 2023, Julie filed an amended summons. The amended summons seeks the following relief (CB 3):

Appended to the amended summons were points of claim which (omitting formal parts) set out seven grounds of appeal. The grounds of appeal are detailed and span over six pages: CB 7-12. I will summarise those grounds below.

Julie appeals pursuant to cl 14(1)(b) of Sch 6 to the NCAT Act from the decision of the Tribunal to make a financial management order in respect of the affairs of Olivia.

An appeal to this Court exists as of right on any question of law, or with leave of the Court, on any other grounds: cl 14(1)(b) Sch 6 NCAT Act.

In the case of a “final” decision (strictly speaking, any decision other than an ancillary or interlocutory decision), an appeal must be instituted within the period of 28 days after the day on which the written statement of reasons for the decision is given to the person seeking to appeal: cl 14(2)(b) Sch 6 NCAT Act.

This appeal was instituted on 2 June 2023. As noted above, the appeal was actually commenced in the Court of Appeal. However, that irregularity has been addressed and no defendant contends that the appeal has not been properly instituted.

In dealing with an appeal, the Court may decide to do so by way of a new hearing if it considers that the grounds for the appeal warrant a new hearing: cl 14(3)(a) Sch 6 NCAT Act. However, no party contended that the Court should do so in this case.

In outlining the nature of the jurisdiction, Mr Jones made particular reference to the decision of Lindsay J in P v NSW Trustee and Guardian [2015] NSWSC 579 (Re P) at [52]-[54].

Mr Jones emphasised the profound effects that a financial management order has on the person upon whom it is imposed, as it changes the status of that person, who was once regarded as being legally autonomous and able to choose how he or she manages his or her estate, to a ”protected person” and suspends by law his or her ability to deal with his or her own estate: T 15.27-16.5, citing Re P at [186].

An appeal to this Court operates to stay the decision under appeal: cl 14(5) Sch 6 NCAT Act. A “decision” includes the making of an order: s 5(1)(a) NCAT Act. Thus, in practical terms, Olivia’s estate had been subject to management by the NSWTG for a period of approximately 6.5 months, from 14 December 2022 until 2 June 2023. The stay suspended financial management by the NSWTG. Thus, since June 2023 (i.e. essentially for the previous year), Olivia has been managing her own estate (whether or not she has done so with assistance from others being a matter for her).

The materials relied upon on the hearing of the appeal were included in the Court Book. The Court Book was arranged to include:

Excluding the amended summons and submitting appearance, the materials in the Court Book were marked as Exhibit P1 on the basis that they were accepted as constituting evidence of the nature of the Tribunal’s decision that is under appeal, the “evidence” that was before the Tribunal and the reasons for the decision: T 1.

Julie contends that, in making the financial management order, the Tribunal erred in law because, in summary:

In his submissions, Mr Jones addressed the grounds of appeal in a slightly revised order which was said to reflect the order in which they logically arose. Thus, the genuine concern issue in relation to standing (Ground 7) was addressed first.

Mechanisms to assist people who are incapable of managing or looking after their own affairs are ancient in life and long established in law: see e.g. Lindsay J, “A Struggle for Perfection in an Imperfect World: Dignity of the Individual, Incapacity for Self-Management, Rights, Duties and Conflicts of Interest” (Paper), Society of Trust and Estate Practitioners Western Australia Incapacity Conference, 26 October 2018 at [73]-[77]. This Court has an inherent jurisdiction to address that concern by appointing someone to manage the person’s affairs; historically, such an order was designated as an appointment of a “committee of the estate”: Re P at [50]-[51]; C v W [2015] NSWSC 1774 (C v W) at [99] per Lindsay J.

In New South Wales, there is also a statutory jurisdiction given to the Tribunal which provides for the making of financial management orders principally under Pt 3A of the Guardianship Act and Ch 4 of the NSWTG Act.

The legislative framework within which the Guardianship Division of the Tribunal operates underpins a broader institutional framework that assigns complementary roles to: (a) the Tribunal itself; (b) this Court (though not limited to the Court’s inherent jurisdiction); (c) the Mental Health Review Tribunal; (d) the NSWTG; (e) the Public Guardian; (f) licensed trustee companies; and (g) appointees to the office of “enduring attorney” (governed by the Powers of Attorney Act 2003 (NSW)) and “enduring guardian” (governed by the Guardianship Act): see Lindsay J, “Roles in Protective Management of Person and Property” (2018) 92 AIAL Forum 36 at 39.

A “financial management order” is an order that the estate of a person be subject to management under the NSWTG Act: s 25D, read with s 25E(1), Guardianship Act. The order may relate to the whole or only part of the person’s estate: s 25E(2) Guardianship Act.

The principal effect of a financial management order is that the power of the protected person (alternatively defined in the NSWTG Act as the “managed person”: s 38 NSWTG Act) to deal with his or her estate is suspended in respect of so much of that estate as is subject to management under the NSWTG Act: s 71(1) NSWTG Act.

A financial management order may be made by the Tribunal on the application of the NSWTG or the person who is the subject of the application: ss 25I(1)(a)-(a1) Guardianship Act. Relevantly, an application for a financial management order may also be made by any person who, in the opinion of the Tribunal, has a genuine concern for the welfare of the person who is the subject of the application: s 25I(1)(b) Guardianship Act.

That power may be contrasted with the power of this Court to order the appointment of a “manager” (defined in s 38 of the NSWTG Act) of the estate of a person, if the Court is satisfied that the person is incapable of managing his or her affairs: s 41(1) NSWTG Act. This Court may make such an order on its own motion or on the application of any person having “a sufficient interest in the matter”: s 41(2) NSWTG Act.

The Mental Health Review Tribunal has a similar power (albeit a mandatory one) in that, if it orders that a person subject to a mental health inquiry be detained in a mental health facility, it must (a) consider whether the person is capable of managing his or her own affairs, and (b) if satisfied that the person is not capable of managing his or her own affairs, order that the estate of the person be subject to management under the NSWTG Act: s 44 NSWTG Act.

An application under s 25I(1) of the Guardianship Act must specify the grounds on which it is claimed that the person the subject of the application is not capable of managing his or her own affairs: s 25I(2) Guardianship Act.

An application made under s 25I enlivens a power in the Tribunal to make a financial management order: s 25F(c) Guardianship Act.

The Tribunal may make a financial management order in respect of a person only if the Tribunal has considered the person’s capability to manage his or her own affairs and is satisfied that: (a) the person is not capable of managing those affairs; (b) there is a need for another person to manage those affairs on the person’s behalf; and (c) it is in the person’s best interests that the order be made: s 25G Guardianship Act.

However, despite s 25G, the Tribunal may make an “interim financial management order” pending its further consideration of the person’s capability to manage his or her own affairs: s 25H Guardianship Act.

If the Tribunal makes a financial management order in respect of a person’s estate, it may commit the management of that estate to the NSWTG: s 25M(1)(b) Guardianship Act.

The Tribunal, when exercising its Division functions in relation to persons who have disabilities, is under a duty to observe the principles referred to in s 4 of the Guardianship Act: cl 5 Sch 6 NCAT Act.

Under s 3(2) of the Guardianship Act, a reference to a person who has a “disability” is a reference to a person:

The principles referred to in s 4 of the Guardianship Act apply to everyone exercising functions under the Guardianship Act with respect to persons who have disabilities, and are as follows:

Mr Jones referred to Re P in which Lindsay J noted at [311] that paragraphs (b), (c), (d) and (f) of s 4 place a “strong emphasis on a person’s autonomy and dignity”, submitting that the effect of a financial management order is to take away a person’s autonomy and freedom of action “by paternal action of the State”: T 17.7-.12.

In Re P, Lindsay J observed at [56] that the general principles set out in s 4 must inform an application for a financial management order, even if the Tribunal ultimately finds that the person is not, in fact, a “person who has a disability” within the meaning of s 3(2).

Precisely how the Tribunal might determine whether a person is “capable of managing his or her own affairs” was considered further by Lindsay J in CJ v AKJ [2015] NSWSC 498 (CJ v AKJ), where his Honour stated the following at [39]:

The extent of the judicial duty to give reasons will depend upon the circumstances of the case and the function to be served by the giving of reasons: Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 386A-B per Mahoney JA, affirmed sub nom Tatmar Pastoral Co Pty Ltd v Housing Commission of New South Wales (1984) 54 ALR 155 (Privy Council).

In respect of the judicial duty to gives reasons, I noted the following in Tarbes v Taleb [2023] NSWSC 565 at [68]-[70]:

Conversely, the Tribunal must, when deciding whether to make a financial management order, give a written statement of reasons which sets out: (a) the findings on material questions of fact, referring to the evidence or other material on which those findings were based; (b) the Tribunal’s understanding of the applicable law; and (c) the reasoning process that led the Tribunal to the conclusions it made: s 62(3) and cll 11(1), (3) Sch 6 NCAT Act.

As noted above, Julie’s appeal is confined to an appeal on any question of law or, with leave of the Court, on any other grounds. No such leave has been sought.

This begs the question: what is a “question of law” for the purposes of cl 14(1)(b) of Sch 6 to the NCAT Act?

Counsel for both parties made submissions in respect of what constituted a question of law.

Precisely what amounts to a question of law is particularly relevant to dealing with Grounds 3 and 6 of the appeal, which Mr Jones “housed” under the ground of legal unreasonableness, as well as Ground 5. In respect of Ground 6, submissions were also made relevant to the ground of “no evidence”: POS [77], D1OS [61].

On the issue of what constitutes a question of law, Ms Poukchanski submitted the following (D1OS [17]-[18], [37]):

For his part, Mr Jones submitted that it is sufficient to sustain an appeal on a question of law if it is demonstrated that the decision was affected by legal error: POS [3], citing C v W at [28] per Lindsay J, EB v Guardianship Tribunal [2011] NSWSC 767 at [181]-[189] per Hallen AsJ (as his Honour then was) and SAB v SEM [2013] NSWSC 253 at [4]-[7] per White J (as his Honour then was). Mr Jones submitted that an error of law in relation to a fact-finding exercise will arise if there is no evidence for a particular factual finding or if the factual reasoning process is legally unreasonable in the sense of lacking an “evident or intelligible” [14] justification, and such error occurred in this case: T 6.30-.33, 7.3-.6.

In Judicial Review of Administrative Action and Government Liability (7th ed, 2022, Lawbook Co), the learned authors made the following distinction between issues of fact and issues of law (at 208 [5.20]) (footnotes omitted):

Relevantly, the learned authors also noted that:

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 (as his Honour then was) (Johnson, Garling and Lonergan JJ agreeing).

In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 (Prendergast), the Appeal Panel of the Tribunal was concerned with an appeal in respect of a consumer claim under s 80(2) of the NCAT Act, which provides inter alia that an appeal from an internally appealable decision lies as of right on any question of law. The Appeal Panel set out at [13] a non-exclusive list of possible questions of law, which in summary (and omitting citations) were whether the Tribunal:

In an appeal in respect of orders of the Guardianship Division of the Tribunal under s 80(2) of the NCAT Act, the Appeal Panel in ZXA v ZXB [2022] NSWCATAP 97 (ZXA v ZXB) referred at [13] to the Prendergast non-exhaustive list, in outlining the relevant legal principles, with apparent approval or at least without criticism.

More recently, in AW v WW (No 2) [2024] NSWSC 146 (AW), Kunc J considered the question of what constitutes a “question of law” for the purposes of an appeal under cl 14(1)(b) of Sch 6 to the NCAT Act from a decision of the Guardianship Division of the Tribunal. As noted by Ms Poukchanski, his Honour held that a “question of law” means a pure question of law, and not a question of mixed fact and law or anything else: AW at [9], [53]. In AW, the plaintiff contended that the Tribunal had failed to address relevant evidence and had failed to take into account relevant facts in dismissing the applications for guardianship and a financial management order: AW at [8]. Relevantly, his Honour made the following observations at [9] and [52] (referring to Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] 2 All ER 680):

In Rawson Finances, Jagot J (Nicholas J agreeing) explained at [83]-[84] the range of questions of law which may (or may not) arise from factual findings as follows:

“No evidence” in the above sense goes to the question of the capacity of material to be legally probative of a fact, rather than its weight. In Wang v Australian Securities and Investments Commission [2019] FCA 1178, Bromwich J made the following observations relevant to the “no evidence” ground at [68]:

The nature of the “no evidence” ground was most recently considered by Bell CJ and Meagher JA in Berejiklian v Independent Commission Against Corruption [2024] NSWCA 177 at [100]-[102].

Given that Grounds 3 and 6 of the appeal were based upon legal unreasonableness, both counsel gave detailed submissions as to the precise nature of the test for that ground of review, and its application.

Mr Jones submitted that (POS [42]-[43]):

In his oral submissions, Mr Jones noted that when one is in the realm of legal unreasonableness, one is engaged in an evaluative process by reference to the particular facts of the case, and it is thus necessary to delve into those facts in some detail: T 6.38-.41. The fact that one is doing so does not mean that one is embarking on merits review; one is still embarking on a question of law: T 6.42-.45.

For her part, Ms Poukchanski submitted as follows (D1OS [43]-[44]):

In oral submissions, Ms Poukchanski made particular reference (at T 58.16-.46) to the judgment of Gageler J (as the Chief Justice then was) in Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30 (SZVFW) at [51]-[52], where his Honour stated the following (omitting footnotes):

Ms Poukchanski’s purpose in referring to this part of Gageler J’s judgment in SZVFW was to identify the nature and extent of an error of law. She submitted that the weight that is ascribed to evidence and the exercise of evaluating that evidence cannot amount to an error of law unless it meets the requisite standard of unreasonableness or illogicality. Specifically, she submitted that it is not an error of law if, on appeal, the reviewing court takes a different view of the evidence than that which the decision-maker has taken or would have drawn different or other conclusions: T 58.48-59.4.

To emphasise this point, Ms Poukchanski then referred to the subsequent comments of Gageler J at [58] in SZVFW (omitting footnotes):

Ms Poukchanski stressed that the scope of legal unreasonableness is “extremely confined”: T 59.6-.15.

Ms Poukchanski also took issue with Mr Jones’ submission that asking whether no reasonable person could ever have come to the conclusion reached by the decision-maker or whether there is an evident and intelligible justification for the decision are two ways of looking at legal unreasonableness: T 60.40-.45. By reference to the judgment of Hayne, Kiefel and Bell JJ in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 (Li) at [76], she submitted that the language of a lack of an evident and intelligible justification does not create any lower threshold for unreasonableness, rather it is another way of phrasing the same (still very high) threshold whereby it is not possible for the Court to comprehend how the decision was arrived at: T 65.34-66.22. That being said, for my part, I did not understand Mr Jones to have contended for some lower threshold by reference to the question of whether there is an evident and intelligible justification arising from the Tribunal’s reasons.

Ms Poukchanski submitted that even though there may be gaps or unsatisfactory reasoning in the Tribunal’s reasons, it was still possible to understand how it arrived at its conclusions and, in that sense, the Tribunal had discharged its legal duty and its reasoning cannot be described as an error of law: T 66.24-.29, 67.4-.7. In particular, she submitted that the Tribunal arrived at its conclusions by accepting, or giving greater weight to, some evidence over other evidence, and that its findings, including those at CB 62[67] and 65[79], need to be contextualised so that the decision is read as a whole: T 68.8-17.

Ms Poukchanski emphasised that the fact that the Tribunal is not bound by the rules of evidence necessarily means that sworn evidence does not in and of itself carry any greater significance than unsworn evidence before the Tribunal, and the Tribunal is required to weigh evidence according to its probative force: T 69.41-.48.

The debate on this issue gave rise to a tension between Ms Poukchanski’s submissions that the Tribunal was simply weighing the material before it, which involves questions of fact that are not reviewable by this Court, and Mr Jones’ submissions that the Tribunal came to conclusions in a manner which was legally unreasonable, amounting to jurisdictional error.

In Commissioner of Victims Rights v Dobbie [2019] NSWCA 183 (Dobbie), Basten JA (as his Honour then was) (Leeming JA agreeing) stated at [39] that “legal unreasonableness is a shorthand for the proposition that a statute conferring a discretionary power on an administrative officer impliedly imposes a constraint on the exercise of the power, namely that it be exercised fairly, rationally and reasonably”.

The submissions of counsel outlined above give sufficient guidance to the applicable principles. I merely note that, as Basten JA observed in Dobbie at [40], a standard of reasonableness often raises questions as to the weight given to particular material by a decision-maker. That aspect of the principle was said to have been explained by Mason J (as his Honour then was) in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 41; [1986] HCA 40 (Peko-Wallsend) as follows (footnotes omitted):

The parties’ written outlines of submissions exchanged prior to the hearing did not address the issue of whether Julie must demonstrate that the alleged errors of the Tribunal amounted to jurisdictional errors which were material to its decision.

However, in the course of submissions on the hearing, Ms Poukchanski made submissions regarding the requirement for materiality of an error (in particular, in respect of Ground 7). Ms Poukchanski’s position, as I understand it, was that Julie must demonstrate any alleged error of the Tribunal was material so as to constitute jurisdictional error. She submitted that, if the Tribunal made any error in this case, it was not a material error: T 42.7-43.22.

Ms Poukchanski referred to the judgment of Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 98 ALJR 610 (LPDT) at [9] and [14]-[16], which was said to bear upon the question of materiality.

It is convenient to set out in full [6]-[16] of their Honours’ judgment in LPDT as follows (omitting footnotes):

For his part, Mr Jones contended that, whilst some of the errors complained of are jurisdictional errors (referring to Ground 7 as an example), others (such as Ground 2) are errors of law in respect of which one need not determine whether they are jurisdictional: T 44.1-.7. In any case, Mr Jones submitted that the requirement of materiality is an undemanding standard (at T 43.40-.46), citing Nathanson v Minister for Home Affairs (2022) 276 CLR 80; [2022] HCA 26 at [33] per Kiefel CJ, Keane and Gleeson JJ.

Mr Jones submitted that the question of whether John had a genuine concern for the welfare of Olivia was in issue in the hearings before the Tribunal, yet the Tribunal did not list it as an issue, refer to it or make any findings on it. As such, the Tribunal failed to address, and arrive at an opinion in relation to, whether John had a genuine concern for the welfare of Olivia such that ss 25F(c) and 25I(1)(b) of the Guardianship Act were not satisfied, constituting an error of law: POS [3(a)], [11], [15].

Mr Jones submitted that what was an issue before the Tribunal may be identified in a number of ways, including by reference to the submissions of the parties: T 25.41-26.1.

The basis for Mr Jones’ submission that John’s “standing” under s 25I(1)(b) was in issue before the Tribunal was expressed as follows (POS [8]; see also T 26.18-.48):

Mr Jones went on to submit the following (POS [9]-[10], [13]-[14]):

On the hearing, Mr Jones submitted that the Tribunal must form an opinion on the matter and that opinion is a necessary condition to the Tribunal’s exercise of its powers. Put another way, the opinion is a subjective jurisdictional fact that must exist before the Tribunal has the power to make the orders: T 23.7-.11. Mr Jones contended that the question under “genuine concern” is addressed by asking whether the applicant is, in substance, advancing his or her own interest or whether he or she is truly seeking to protect the person the subject of the application: T 23.1-.5. In framing the Tribunal’s task that way, Mr Jones acknowledged that there is not necessarily a strict dichotomy. It was submitted that the Tribunal forms an opinion on the fact by looking at the evidence before it, including by assessing the person who has brought the application and his or her reasons for doing so: T 23.46-.50.

Mr Jones also submitted that whilst the Court can and should examine relevant documentary evidence before it on the appeal, together with any transcript of the hearings in the Tribunal, the purpose of doing so is to ensure that the Tribunal’s reasons are read in their proper context; the transcript cannot be employed to supplement and expand the stated reasons of the Tribunal: T 29.3-.20, referring to AYX17 v Minister for Immigration and Border Protection (2018) 262 FCR 317; [2018] FCAFC 103 (AYX17) at [57]-[59] per Tracey and Mortimer (as her Honour then was) JJ. Where the Tribunal does not refer to or set out a finding on some question of fact, the Court can infer that the Tribunal did not make a finding on that matter, and so it was not a matter activating the Tribunal when it exercised its power: T 29.20-.49, referring to AYX17 at [61].

Meanwhile, Ms Poukchanski submitted as follows (D1OS [62]-[65]):

Ms Poukchanski elaborated upon those written submissions on the hearing.

First, she submitted that the issue of “a genuine concern” was not the subject of substantive argument before the Tribunal and, accordingly, was not an issue in respect of which the Tribunal was required to set out reasons: T 30.9-.38, 36.4-.15, 39.1-.9. In this regard, Ms Poukchanski distinguished between issues that arise from a substantial and clearly articulated argument or claim and those that do not, citing Minister for Home Affairs v Omar (2019) 272 FCR 589; [2019] FCAFC 188 (Omar) at [41] and Navoto v Minister for Home Affairs [2019] FCAFC 135 (Navoto) at [85]: T 39.15-.25, 42.1-.5.

In seeking to demonstrate that there was no clearly articulated argument about “genuine concern” before the Tribunal, Ms Poukchanski contrasted the representations of the respondent in Omar (set out at [10] of that judgment) with those evident from the transcript of the hearings before the Tribunal in this case. Specifically, she observed that Julie’s legal representative did not labour the point of “genuine concern”: T 39.25-.47. Initially, Ms Poukchanski referred to a submission recorded in the transcript which was actually made by Olivia’s legal representative (CB 458), though she did subsequently refer to the submission on behalf of Julie’s legal representative: T 40.1-.12. Ms Poukchanski expressly did not go so far as to assert that the issue of “genuine concern” had been conceded by Olivia or Julie. However, she did submit that the issue was not presented to the Tribunal in the form of a “substantial, clearly articulated argument”: T 39.39-40.7.

Briefly in response to this point, Mr Jones submitted that Omar and Navoto are authorities to be seen in their particular statutory context, being s 501CA of the Migration Act 1958 (Cth), and the reason why the language of “substantial, clearly articulated argument” is used in those authorities is that, while representations made under that provision as a whole constitute a mandatory relevant consideration, not every argument made within those representations is necessarily a mandatory relevant consideration. Rather, it is only a mandatory relevant consideration if it is substantial or clearly articulated: T 45.15-.21. In any case, Mr Jones submitted that the issue of “genuine concern” was raised as a substantial, clearly articulated argument before the Tribunal: T 45.13-.15.

In relation to Olivia’s written submissions which contended that John did not have genuine concern for her welfare (CB 126[9]-[13]), Ms Poukchanski raised two matters.

In respect of the first matter, she contended that those submissions did not “reference any particular evidentiary matter that needs resolution”, and in that sense, were “matters of assertion” as opposed to “clearly articulated substantial arguments needing resolution separately and of their own”: T 40.24-.27.

In respect of the second matter, Ms Poukchanski submitted that the way in which Olivia’s arguments are presented are in terms of an attack on the merits of John’s application, and they suggest the way that the Tribunal should be satisfied that John did not have a genuine concern for Olivia is that the merits of his application are poor. In that regard, she submitted that it is not surprising that the Tribunal “then deals with this issue as wrapped up in the merits of the actual application”: T 40.27-.39.

Ms Poukchanski noted that Olivia’s written submissions referred to her affidavit evidence that she was very upset about, and did not agree with, what John had written in his application: CB 126[11]. Ms Poukchanski submitted that the Tribunal effectively dealt with those matters by finding on the merits that there was a reasonable basis on which to impose a financial management order: T 40.49-41.14. She also referred to Olivia’s contention in her written submissions, by reference to extracts of the hearing report of her interview with a registry officer of the Tribunal on 28 November 2022, that she had not spoken to John about his application and that she felt in control of her affairs: CB 127[12]. Ms Poukchanski submitted that the purpose of that submission essentially was to demonstrate that Olivia felt in control of her affairs and therefore the application made was somehow motivated by something other than her best interests, and so when the Tribunal dealt with Olivia’s ability to control or understand her affairs it also dealt with that submission: T 41.16-.23.

In a context in which Ms Poukchanski submitted that there was no clearly articulated argument before the Tribunal as to “genuine concern”, she submitted that the Tribunal is not required to refer to every argument made before it nor to every piece of evidence put before it. In this regard, she referred to two authorities which were noted in her written submissions under Ground 6, namely Castro v Minister for Immigration and Ethnic Affairs [1997] FCA 40 at 8 per Wilcox J and Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593; [2003] FCAFC 184 (WAEE) at [46]-[47] per French, Sackville and Hely JJ: T 36.24-39.9.

Secondly, whilst Ms Poukchanski did not suggest that the Tribunal explicitly made any finding in relation to whether John had a “general concern” (T 35.1-.2), she submitted that the Tribunal’s findings as to John’s genuine concern are “inherent” in its reasons: T 30.40-31.23.

As noted above, Ms Poukchanski directed my attention in particular to the passage in WAEE at [46]-[47], in which their Honours stated as follows:

In respect of the submission that a finding may be inherent in the Tribunal’s reasons, Ms Poukchanski referred (T 38.19-.33) to the above passage at [47] and, in particular, the words:

In explaining this submission, Ms Poukchanski set out two matters as relevant to the question of standing: (a) did John have standing so as to enliven the Tribunal’s power; and (b) did the Tribunal fail to set out its findings of fact in relation to standing and, if so, was that an error of law: T 31.42-.46.

Ms Poukchanski submitted that the fact-finding of “genuine concern” was inherent in the Tribunal’s reasons because the Tribunal found that a financial management order ought to be made, broadly speaking, on the grounds on which John was seeking it: T 32.6-.27, 32.36-.41, 34.35-.39. Nonetheless, Ms Poukchanski accepted, in response to a query from me, that a finding that a financial management order ought to be made does not necessarily proceed on the basis that the applicant has the relevant “general concern”: T 32.11-.34.

Finally, Ms Poukchanski submitted that any omission of the Tribunal to expressly state an opinion as to John’s “genuine concern” was not a material error, as the inclusion of words in its reasons such as “we find that [John] had a genuine concern for [Olivia’s] welfare” would simply express something that, in her submission, is already evident in the reasons: T 41.35-.47. If such words would “cure” the omission, she argued that the omission itself is a “mere technicality”. It was in this context in which Ms Poukchanski submitted, by reference to LPDT, that any error of law by the Tribunal in this case must be material.

In reply, Mr Jones submitted that an error as to whether the applicant has standing is a jurisdictional error: T 44.1-.7. In any case, he accepted that materiality applies to the question of whether the Tribunal formed the opinion that there was a genuine concern, referring to the judgments of Leeming JA in DRJ v Commissioner of Victims Rights (No 2) (2020) 103 NSWLR 692; [2020] NSWCA 242 at [89] and Edelman J in Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34 at [65] in support of the proposition that, ordinarily, one would not set aside a decision if the error was immaterial: T 44.7-.14.

Mr Jones submitted that the error made by the Tribunal on this ground was that it failed to consider the relevant question, being whether John had a genuine concern for Olivia’s welfare. Then, looking at the counterfactual analysis of what would have happened had that error not been made, he submitted that the outcome realistically could have been different because one does not know what the Tribunal would have decided. Thus, he submitted that the error was a material error, bearing in mind the undemanding nature of that test: T 44.16-.40.

In reply to Ms Poukchanski’s observation that Olivia’s legal representative, Mr Schmidt-Liermann, did not labour the point of “genuine concern” on the second hearing before the Tribunal, Mr Jones noted that, in the context in which the Tribunal had previously noted that “substantial written submissions have been made” and that it was “an opportunity to highlight things” (CB 457), Mr Schmidt-Liermann took “the nudge” from the Tribunal that it did not want him to repeat everything that had already been submitted in writing (as opposed to making any sort of concession): T 44.48-45.11.

Section 25I(1) of the Guardianship Act has been referred to as containing the locus standii required for the making of a financial management order: C v W at [98] per Lindsay J. It provides

The provisions of s 25I(1) provide similar criteria for the applicant for a financial management order as the provisions of s 9(1) require for an applicant in relation to a guardianship application, with the exception that in respect of financial management orders the reference to the “Public Guardian” is replaced with the “NSW Trustee”.

Section 25I(1) is said to reflect the general law, in which even a stranger may apply for the appointment of a protected estate manager, historically designated a “committee of the estate”: C v W at [99]. The question of standing “ultimately turns upon the rationale for the protective jurisdiction: the need for an accessible remedy for the protection of a person who, unable to manage his or her own affairs, is in need of protection”: C v W at [99], citing Re W and L (Parameters of Protected Estate Management Orders) [2014] NSWSC 1106 at [90]-[94].

In recent years the Tribunal has had to consider issues of standing to bring an application for a financial management order in the case of particular applicants, including a local health district (e.g. MZU [2020] NSWCATGD 14 and MZI [2020] NSWCATGD 75) and the Ageing and Disability Commissioner (e.g. EYN [2020] NSWCATGD 10). In those cases where the question has been raised, the Tribunal has specifically addressed the issue and provided some (albeit not always elaborate) reasons.

What suffices to constitute a “genuine concern” for the purposes of the Guardianship Act does not appear to have been considered in detail in this Court.

The Macquarie Dictionary defines the noun “concern” in a number of ways. One of the definitions is “a matter that engages one’s attention, interest, or care, or that affects one’s welfare or happiness: [e.g.] it’s no concern of mine”: Macquarie Dictionary, online ed. The Oxford English Dictionary defines the noun “concern” as “[s]olicitous regard, anxiety, worry; a state of mind arising from this …”: Oxford English Dictionary, online ed.

The adjective “genuine” essentially conveys by its ordinary meaning the notion of “being truly such; real; authentic”. It includes the notion of being “sincere” and “free from pretence or affectation”: Macquarie Dictionary, online ed. When used in respect of a person such as the phrase “the genuine article”, the ordinary meaning conveys that the person “is truly what they purport to be”: Macquarie Dictionary, online ed.

The noun “welfare” is not defined in any more specific way in the Guardianship Act. The noun is one of those words which dictionary editors define by reference to its own etymological terms. The Macquarie Dictionary defines it as being “the state of faring well; wellbeing: one’s welfare; the physical or moral welfare of society”: Macquarie Dictionary, online ed. The Oxford English Dictionary defines it as being: “[t]he state or condition of doing or being well; well-being, prosperity, success; the health, happiness, and fortunes of a person or group”: Oxford English Dictionary, online ed. Both sources make it clear that the noun is derived from the etymons “well” and “fare”.

A test for what constitutes a “genuine concern for the welfare” of the person has been formulated and frequently applied by the former Guardianship Tribunal. In ACJ [2007] NSWGT 15 (ACJ), the Tribunal stated the following at [59]-[63]:

This test has been restated by the former Guardianship Tribunal (e.g. QAG [2007] NSWGT 12 at [37]-[41]) and also, since 1 January 2014, by the Tribunal in a number of cases: e.g. BFT [2014] NSWCATGD 51 (BFT) at [29]-[31]; MCQ [2014] NSWCATGD 29 (MCQ) at [11]; OKK [2015] NSWCATGD 42 at [42]-[43]; ICW [2017] NSWCATGD 43 at [55].

It has also been said that the word “welfare” is used broadly in the Guardianship Act to include financial as well as personal welfare: e.g. KTC [2011] NSWGT 23 at [56]; BFT at [30]; MCQ at [12].

Sections 9(1)(d) and 25I(1)(b) indicate that the Tribunal is called upon to form an opinion regarding whether the applicant “has a genuine concern for the welfare of the person”.

Prima facie, without reference to any caselaw, it requires the Tribunal to make an assessment as to whether the applicant has (i.e. at the time of making the application) a concern (i.e. as a state of mind or belief) and whether that concern is “genuine”.

In some circumstances in law, state of mind is equated with motive. However, the two are not necessarily coterminous.

“Motive” in law frequently involves exploring and ascertaining a reason as to why someone has done something. In this respect, the noun ties in with its ordinary meaning of “something that prompts a person to act in a certain way or that determines volition; an incentive”, from the Latin motivum “a moving cause”: Macquarie Dictionary, online ed.

“State of mind” is a phrase particularly susceptible to shades of meaning depending on context. In the context of financial management orders in the Guardianship Act, I consider that the requirement that the applicant “has a genuine concern” refers more particularly to the applicant’s state of mind rather than the applicant’s motive in holding that state of mind. The enquiry as to the applicant’s “concern” seems to me to be an enquiry as to the state of mind of the applicant. The qualification that the concern be “genuine” requires an enquiry as to the character or nature of that state of mind.

I consider that the matters set out in ACJ provide some helpful guidance in considering the issue of standing. However, there is one respect in which I consider that the “test” set out in ACJ potentially misstates what is required. Specifically, the statement in [59(3)] that the Tribunal sees a “genuine concern for the welfare” of the person as requiring the application to be “motivated by a desire to advance the welfare of the person” arguably elevates the statutory requirement beyond what the text provides.

Whilst to some it might seem a slight distinction, an applicant might hold a genuine concern for a person’s welfare but not be “motivated by a desire to advance the welfare of the person”. My view in that regard is consistent with the comments of Lindsay J in C v W at [100], where his Honour expressed an applicant’s standing as being contingent upon, and “no more extensive than”, a demonstrable, genuine concern for the welfare of the person the subject of the application.

Finally, s 25I(1)(b) expressly states that the Tribunal must form an opinion that the applicant has a genuine concern for the “welfare of the person the subject of the application”. The power to make a financial management order under s 25F(c) is thus expressly conditioned upon the formation of that opinion by the Tribunal. As such, the existence of that opinion itself constitutes a jurisdictional fact: see Plaintiff M70/2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144; [2011] HCA 32 at [57] per French CJ; Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21 at [130] per Gummow J; “V V” v District Court of New South Wales [2013] NSWCA 469 (“V V”) at [13] per Barrett JA (as his Honour then was) (Ward (as her Honour then was) and Leeming JJA agreeing). Thus, where the specified state of satisfaction or opinion has not been achieved before jurisdiction is exercised, the necessary precondition to the exercise of that power (or jurisdictional fact) does not exist and the purported exercise of the power is unauthorised: “V V” at [13].

What was required of the Tribunal was for it to form an opinion as to whether John held a state of mind or belief of “concern” in relation to the “welfare” of Olivia the nature of which was “genuine”.

Dealing with the submissions of the parties, I find as follows.

An overly technical approach should not be taken to determining whether an issue arises in proceedings.

The issues before the Tribunal were listed in its reasons, as I have outlined above. Standing per se was not listed as an issue. However, I am satisfied that the issue of standing was raised as an issue before the Tribunal.

In her written submissions, Ms Poukchanski stated that the Tribunal was entitled to take into account the impression made by an applicant in giving evidence and whether the “complaint” was made in respect of an incapacitated person and had some substance, citing the decision of Palmer J in Bovaird v Guardianship Tribunal [2009] NSWSC 452 (Bovaird) at [31].

Ms Poukchanski developed the argument on the hearing in the way I have described above, by reference to the decisions in Omar and Navoto.

There are various answers to those submissions.

One is that the Tribunal did not state anything about its impression of John in giving evidence.

Next, as I will note below, Palmer J’s decision dealt with costs and does not, properly construed, suggest that a finding of incapacity or that there is some substance to the complaint can somehow substitute for a finding of standing.

Finally, despite Ms Poukchanski’s carefully crafted and detailed submission that Olivia’s submissions before the Tribunal were not truly directed to the issue of genuine concern but to the general merits of the application, I reject the notion that Olivia’s submissions were directed otherwise than to the issue of genuine concern. It is principally refuted by reference to the subheading immediately above those submissions (CB 126), which expressly states: “The Applicant does not have genuine concern for the welfare of [Olivia]”. Immediately underneath the subheading, there is express reference to s 25I(1) of the Guardianship Act (CB 126[9]) and the words “genuine concern” are further referenced (CB 126[10]).

Given that the issue of standing had been raised by Olivia’s solicitor, it is no answer to the standing issue to say (as Ms Poukchanski did) that Olivia’s solicitor did not reference any particular evidentiary matter that needed resolution or that her arguments were presented as an attack on the merits of John’s application as opposed to the issue of standing.

Ms Poukchanski submitted that the standing issue was not “the subject of substantive argument”. In this regard, she referred (T 30.19-.39) to Mr Schmidt-Liermann’s submission on the second hearing as follows (CB 458 lines 545-554):

Ms Poukchanski also made reference to the submission of Mr Clear on behalf of Julie (CB 463 line 739-741):

To the extent that Ms Poukchanski submitted that Olivia’s solicitor had not pressed the issue of standing on the hearings before the Tribunal, I reject that submission. There is no formal abandonment by Mr Schmidt-Liermann of the issue, nor any indication that it was not pressed.

I accept Mr Jones’ submission that on the hearing the Tribunal had indicated to Mr Schmidt-Liermann that, in light of the fact that substantial written submissions had been made and substantial documentation provided, the making of oral submissions was in essence “an opportunity to highlight things” and “point to any particular documents”: CB 457 lines 519-525.

Once the standing issue had been raised as an issue before the Tribunal, I am satisfied that the Tribunal was obliged to address the matter and make a finding on it: s 62(3) NCAT Act. Indeed, it is the gateway to the Tribunal having power to make a financial management order.

I reject Ms Poukchanski’s submission that the Tribunal was not required to make a finding on the issue. To my mind, the passages in WAEE at [46]-[47] do not support the proposition that, where a respondent expressly raises an issue in submissions regarding an applicant’s standing, the Tribunal is at liberty not to address that matter.

Indeed, the passage in WAEE at [47] indicates that an inference that a Tribunal has failed to deal with an issue should not be too readily drawn, provided that the issue “has at least been identified at some point”. In this case, there was no identification of the “genuine concern” issue nor any express reference to s 25I.

It may be understandable that in the (potentially many) cases before the Tribunal in which no issue as to standing has been raised, it is not unusual for the matter of standing not to be explicitly referred to in the Tribunal’s reasons for its decision.

By way of example, in ZXA v ZXB the applicant was a care manager of an aged care facility at which the person the subject of the application was a resident. On appeal from the Tribunal’s decision to make a financial management order, the Appeal Panel addressed a submission that the applicant did not have standing to make the application on the basis that the applicant’s interest in the application was purely financial and solely concerned with the fees owed by the person to the aged care facility. It was contended that the Tribunal applied the wrong principle or asked itself the wrong question, thus making an error of law: ZXA v ZXB at [19].

The Tribunal had not directly addressed the question of standing to make the application, seemingly because no issue appeared to have been raised at the Tribunal stage. In that context, the Appeal Panel stated that it is not unusual for the matter of standing not be expressly referred to in the Tribunal’s reasons for decision: ZXA v ZXB at [20].

The Appeal Panel noted that it was “implicit” in the Tribunal’s reasoning that the Tribunal accepted the applicant had standing, and did not consider that there was any error in the Tribunal’s approach in not directly addressing the issue in its decision: ZXA v ZXB at [20].

However, in the circumstances of this case where the issue of standing or “genuine concern” under s 25I(1)(b) had been raised expressly as an issue before the Tribunal, I consider that the Tribunal was obliged to address the matter and make a finding on it.

I have outlined above the list of issues identified by the Tribunal. There is no suggestion that the Tribunal expressly addressed standing as an issue, and I did not understand Ms Poukchanski to submit otherwise. The Tribunal did not expressly refer to s 25I of the Guardianship Act. That would not be a difficulty per se if it was evident from the Tribunal’s reasons that the issue of “genuine concern” was referred to or expressly addressed by it. However, there is no reference to “genuine concern” in either sets of reasons of the Tribunal.

I reject Ms Poukchanski’s submission that the Tribunal made a finding that John had standing which was “inherent” in its reasons, or that it was subsumed in findings of greater generality. To some extent, this submission draws upon other submissions on this ground which I deal with below. I do not accept that the fact that the Tribunal proceeded to hear and decide the application in John’s favour (D1OS [64]) provided confirmation that the Tribunal held the view that John had standing. Further, I do not accept that the Tribunal’s findings in relation to capacity, the need for another manager and Olivia’s best interests necessarily proceeded on the basis that it had formed an opinion that John had a sufficient genuine concern such as to constitute standing.

Whilst Ms Poukchanski did not argue that, by rejecting the summary dismissal application, the Tribunal had dealt with the standing issue as part of its findings in the first reasons, for completeness I will make some observations on that potential argument.

In dealing with and dismissing the summary dismissal application in its first reasons, the Tribunal made reference to the fact that Julie and Robert argued that John’s application was “vexatious” and “clearly misconceived as the facts presented in the application are untrue…”: see CB 32-33[34]. The Tribunal noted John’s allegations that Robert “takes full control of” Company A, Olivia “does not know how much [Robert’s] salary is” and Olivia “has no idea of how the business is”: CB 32[33].

If the Tribunal purported to deal with the issue of standing by virtue of its rejection of the summary dismissal application, I consider that that would amount to an error of law, as to have done so involved either asking the wrong question or proceeding on the wrong principle of law. The questions of whether an applicant has standing and whether an application ought to be summarily dismissed are different questions, and require the application of different principles of law.

Lest it be thought that the Tribunal’s reference to Julie and Robert’s arguments as to John’s application being “vexatious” was the Tribunal’s means of impliedly or otherwise was expressing an opinion as to John’s “genuine concern”, Mr Jones submitted that that was not the case: T 27.29-.42.

He referred to the decision of Palmer J in Bovaird, in which his Honour dismissed an appeal from certain costs orders made by the Tribunal. The Tribunal had dismissed an application for a financial management order because it was not satisfied that the applicant (Mrs Fallon) had “a genuine concern”, as required by s 25I(1)(b): Bovaird at [4]. Mr Jones submitted that there is a clear distinction to be made between a finding as to whether there is standing to bring an application (on the basis that the Tribunal has formed the opinion that the applicant has a “genuine concern” for the person the object of the order) and a finding as to whether the proceedings should be dismissed as being frivolous or vexatious. Put simply, the two concepts are not coterminous: T 27.42-28.20. As indicated above, I accept that submission. In fact, whilst finding that Mrs Fallon lacked standing, the Tribunal in Bovaird had declined to make an express finding that her application was vexatious and an abuse of process: Bovaird at [32].

I consider that the combined effect of ss 25F(c) and 25I(1)(b) of the Guardianship Act incorporates a requirement of materiality. However, I accept the submission of Mr Jones that the threshold is not demanding or onerous: LPDT at [14]. Consequent upon my conclusion that a finding on standing was not “inherent” in the Tribunal’s reasons, I reject Ms Poukchanski’s submission that the Tribunal’s omission of an opinion as to John’s “genuine concern” was not a material error. I accept Mr Jones’ submission that, had the Tribunal considered the question of John’s standing, the decision that was in fact made could realistically have been different.

Ground 1 concerns the Tribunal’s treatment of evidence from Dr M in relation to Olivia’s capability to manage her own affairs. As noted above, before the Tribunal was a medical certificate from Dr M dated 17 November 2022: CB 326. The relevant contents of the certificate are as follows:

Below Dr M’s signature on the certificate was an explanation of the St Louis University Mental Status (“SLUMS”) assessment as follows:

The Tribunal’s treatment of that evidence was set out in [34]-[37] of its second reasons as follows (CB 54-55[34]-[37]):

Mr Jones submitted that the Tribunal erred in law in failing to afford the plaintiff procedural fairness in rejecting the evidence of Dr M as to Olivia’s capacity on the basis of concerns arising under Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305 (Makita): POS [3(b)], [16], [17], [30], [36].

Specifically, he submitted as follows (POS [31]-[35]):

Mr Jones submitted that procedural fairness requires that a person affected by a decision be informed of the critical issues on which the decision is likely to turn: POS [37], citing Snedden v Minister for Justice for the Commonwealth of Australia [2014] FCAFC 156; (2014) 315 ALR 352 at [175] per Middleton and Wigney JJ, Stowers v Minister for Immigration and Border Protection (2018) 265 FCR 177; [2018] FCAFC 174 at [38] per Flick, Griffiths and Derrington JJ, Huynh v Minister for Immigration and Border Protection (2020) 280 FCR 451; [2020] FCAFC 153 at [15] per Reeves, Bromwich and Anderson JJ, and Briggs v Aboriginal Heritage Council [2019] VSC 25 at [25] per Bell J.

In the above circumstances and where the Tribunal is not bound by the rules of evidence, and is to act with as little formality as the circumstances of the case permit, Mr Jones submitted that the Tribunal was obliged to raise the issue with the parties and give Julie an opportunity to make submissions on the issue, rather than “dismiss the evidence” on the basis of the principles in Makita: POS [38]-[40].

Mr Jones supplemented his written submissions orally: T 50.10-54.3.

He observed that the utility of Dr M’s report depended upon what the Tribunal’s reasoning was for determining that Olivia was incapable of weighing information: T 52.50-53.2.

Mr Jones noted that the Tribunal’s reasons indicated that it was not clear whether Dr M understood the expression “[Olivia’s] finances” to involve “simple small day-to-day expenditure” or whether Dr M was “given instructions as to the scope of the business interests of [Olivia] and her formal, pivotal role in managing those finances, as a Director of [Company B] and Director of [Company A]”: CB 54[36]. He submitted that, as a matter of procedural fairness in a context in which there was no other medical evidence before the Tribunal, it was a simple matter for the Tribunal to ask either Julie (who was at all of the appointments) or Olivia what they had told Dr M in relation to Olivia’s finances rather than reject the evidence of Dr M on the basis of there being a “paucity of evidence”: T 53.29-.37.

On the other hand, Ms Poukchanski submitted as follows (D1OS [34]-[38]):

In her oral submissions, Ms Poukchanski emphasised that the particular complaint made regarding Dr M’s report is not that it was not taken into account for the reasons given in Makita, but rather that the parties were not put on notice that the Tribunal proposed to give it the weight that it did: T 70.25-.41.

Procedural fairness is concerned with avoiding practical injustice: Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6 at [37] per Gleeson CJ. I accept, as Ms Poukchanski submitted, that procedural fairness does not require the Tribunal to give the parties a “running commentary” upon what it thinks about the evidence that is given: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63 (SZBEL) at [48] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ. Whilst no objection was taken to Dr M’s report by reason of Makita during the hearings before the Tribunal (cf Chand v Azurra Pty Ltd (in liq) [2011] NSWCA 227 at [22]-[34] per Macfarlan JA (Hodgson JA (as his Honour then was) agreeing)), I do not consider that the Tribunal was obliged to inform or notify the parties as to its assessment of the evidence. As was stated by Northrop, Miles and French JJ in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 (Alphaone) at 591, “[a] person likely to be affected by an administrative decision to which requirements of procedural fairness apply can support his or her case by appropriate information but cannot complain if it is not accepted”.

I do not accept Ms Poukchanski’s submission (at D1OS [38]) that the fact that Dr M’s report was tendered on behalf of Olivia, and not on behalf of Julie, precluded any obligation of procedural fairness to Julie in respect of the evidence. Once evidence is admitted, unless it has been admitted on a qualified basis, in a sense it becomes evidence for all purposes. Its effect cannot be quarantined to a specific party. Indeed, the fact that evidence is adduced by another party is very often a reason why a court or tribunal would wish to raise the effect of the evidence with another party.

Whilst I consider that there is some force in Mr Jones’ submissions that the questions raised by the Tribunal in its reasons (at CB 54[36]) could readily have been addressed with Olivia, Julie and Robert, on balance, I am not satisfied that there was a denial of procedural fairness in the Tribunal ultimately assessing what weight it would give to the report of Dr M.

The Tribunal set out the relevant principles for determining a person’s capability to manage his or her affairs under s 25G(a) of the Guardianship Act at [38]-[43] of its second reasons, as follows (CB 55-56[38]-[43]):

The Tribunal considered that, while Olivia is able to manage her “day to day” needs, “her formal role as Director of two companies and substantial assets must be taken into account in considering whether or not she is able to manage her own finances in her own best interests”: CB 56[44]. It found that she does not actively participate in the management of those companies and relies “almost completely” on Julie and, to some extent, Robert: CB 57[45]. Relevantly, the Tribunal concluded that (CB 57[47]-[48]):

In relation to the question as to whether Olivia is capable of managing her own affairs, Mr Jones contended that the Tribunal failed to apply the correct legal test: POS [3(b)], [16]-[18].

Mr Jones’ written submissions were as follows (POS [19]-[29]):

In speaking to Ground 2 in oral submissions, Mr Jones emphasised that in assessing the question of whether someone is incapable of managing their affairs, it is vital to appreciate that the mere fact that the person does not themselves have skills or experience to do something, or may be dependent on others to do something, does not mean that they lack capacity: T 45.31-.35.

In elaborating on this, Mr Jones referred to three decisions: T 45-49.

The first was the decision of Lindsay J in Re P, and specifically at [308], [309] and [355] where his Honour stated the following:

The second was the decision of Chen J in Sowmi v Master Electrical Services Pty Ltd [2024] NSWSC 176, which concerned an application to remove a tutor on the basis that the plaintiff was no longer a person under legal incapacity (which, under r 7.13 of the Uniform Civil Procedure Rules 2005 (NSW), includes “a person who is incapable of managing his or her affairs”). Mr Jones relied on the decision as authority for the proposition that a lack of experience in making decisions or giving instructions about complicated financial matters is not of itself a basis to say that someone is incapable of managing their affairs (T 47.20-48.7), referring in particular to [52] where his Honour stated:

The third was the decision of Lindsay J in CJ v AKJ, which concerned a young adult whose capacity for self-management was dependent on the availability of active support from his parents. By reference to his Honour’s conclusion at [54] (extracted in the POS above), Mr Jones submitted that, in assessing capability, one has to assess the support available to the person: T 48.8-.29.

Addressing this ground, Ms Poukchanski referenced two aspects of the grounds articulated under Ground 2 in the points of claim annexed to the amended summons: CB 7-8[9(b), (c)]. She addressed the propositions that (a) for the purposes of s 25G a person need not be able to deal personally with complicated transactions to be capable of managing their own affairs, and (b) the Tribunal wrongly construed s 25G as precluding a person from relying “on others with greater expertise in financial matters”: D1OS [39].

Her written submissions were as follows (D1OS [40]-[41]):

Mr Jones emphasised that whilst the Tribunal appears to have proceeded on the basis that “directorship” is part of Olivia’s estate (CB 57[47]) and refers to her having “significant formal legal responsibilities”, the Tribunal never explained precisely what those were for the purposes of its finding that it was “not satisfied that [Olivia] is capable of weighing complex information regarding the very significant property and business portfolio in relation to which she has significant formal legal responsibilities”: T 10.33-.38.

Mr Jones submitted that I did not need to determine what Olivia’s “legal responsibilities” are for the purposes of the appeal: T 10.40-.42.

Ms Poukchanski is correct that the Tribunal made reference to authorities setting out the applicable test.

However, in its findings the particular matter to which the Tribunal referred was that it was not satisfied that Olivia “is capable of weighing complex information regarding the very significant property and business portfolio in relation to which she has significant formal legal responsibilities” and, because of that, the Tribunal made a positive finding that she is not now capable of managing her own finances in her own best interests.

It seems to me that there is some force in Mr Jones’ submissions that the Tribunal applied the incorrect test.

I digress to note that, on the hearing of the appeal, there was some discussion (initiated by me) as to the nature of directorship in the context of financial management orders.

One might imagine that there are many cases in which persons who are incapable of managing their affairs are directors of companies. Precisely how financial management orders might affect a directorship is not entirely clear and, in any event, will depend on the facts of each case. There are often provisions in the constitutions of corporations which deal with the situation in which a director suffers from incapacity. There are also statutory provisions which bear upon the matter, for example s 201F(2)(b) of the Corporations Act 2001 (Cth).

Absent such provisions, there is an interesting question as to whether (and, if so, how) a person’s directorship of a company (or multiple companies) is to be taken into account as part of that person’s “affairs” for the purposes of s 25G(a). While the precise nature of one’s affairs will differ from person to person, the term has previously been broken down into the broad categories of “person and property, capital and income”: see CJ v AKJ at [38(a)]; Re P at [308]. A directorship does not easily fit into any of those categories.

Further, there is a question of principle that arises as to whether a person appointed to manage an incapable person’s affairs should act as the director of the person’s companies or whether he or she should appoint a third person or agent as director. The paucity of detailed guidance on that issue was noted by Young J (as his Honour then was) in Re T and the Protected Estates Act [2000] NSWSC 1022.

That being said, the above matters were not the subject of detailed debate on the appeal and I need not make any final determination on whether (and, if so, how) a person’s directorship of a company (or multiple companies) is to be taken into account as part of that person’s “affairs” for the purposes of s 25G(a).

Even if Olivia’s directorships were correctly taken into account as part of her affairs, the Tribunal nonetheless applied a test more onerous than what s 25G(a) requires. It must be remembered that the Tribunal found that Olivia is able to manage her “day to day” needs and indeed excluded her two personal bank accounts and credit card from the financial management order “to the intent that [Olivia] will be able to use moneys she is accustomed to drawing on”: CB 56[44], 65[81].

The Tribunal referred to the significance of two matters: first, the property and business portfolio; and second, “formal legal responsibilities”.

At no stage did the Tribunal clearly identify the type of decisions that Olivia was called upon to make, nor identify the so-called “complex information” that she was purportedly required to weigh.

Within the corporate world, it is well understood that there are different types of directors, including: executive directors, non-executive directors, independent directors, lead directors, managing directors, chairs, nominee directors, shadow directors, alternate directors and de facto directors. [60]

The unchallenged evidence before the Tribunal was that Olivia’s role in the companies, both historically and currently, is that of a director without an active involvement in decision-making. It is akin to a non-executive nominal directorship role. Indeed, this appears to have been appreciated by the Tribunal, as it noted that Olivia “does not actively participate in the management of” Company A and Company B: CB 56[45].

Conceptually, in any given case, the weighing of complex information might be a consideration in determining whether a person is capable of managing his or her own affairs. However, that essentially begs the question as to what it is that Olivia needed to decide.

The unchallenged evidence before the Tribunal was that, for the last nine years, Julie has managed and continues to manage all company functions and is responsible for all company decisions: CB 147[24(f)]. The last significant decision in which Olivia had any involvement was six years ago in 2018, being the decision to terminate John’s employment.

Within the realm of what Olivia had to decide, a test of “weighing complex information” seems to me to have applied an inappropriately high threshold to the statement of the test in terms of whether Olivia is “reasonably able” to manage her own affairs “in a reasonably competent fashion”, in particular having regard to the support systems available to her: Re P at [307], [309]; CJ v AKJ at [38].

In so finding, I do not accept Ms Poukchanski’s submission that this ground ignores the fact that the Tribunal had found that Olivia could not rely, as a matter of fact, on the people on whom she had and was proposing to continue to rely (namely, Julie and Robert), “because their management of her assets had benefitted them disproportionately”: D10S [41]. In the part of its reasons which dealt with Olivia’s capability to manage her affairs (CB 53[31]-57[48]), whilst referring to Olivia’s heavy dependence upon Julie, the Tribunal does not actually make any findings, in respect of Olivia’s capability, which take into account the support system that is available to her, or the adequacy of that support.

In relation to the question as to whether Olivia is capable of managing her own affairs, Mr Jones contended that the Tribunal’s reasoning process was legally unreasonable, constituting an error of law: POS [3(b)], [16]-[17], [41], [56].

In Mr Jones’ written submissions, he submitted that the Tribunal’s approach was flawed in the following respects (POS [45]-[55]):

In his oral submissions, Mr Jones emphasised that the Tribunal did not address the evidence from Julie and Robert regarding the operations of Company A and their involvement with the company. He contended that the Tribunal could not properly draw conclusions about Olivia’s capability without focusing upon exactly what she was (supposedly) not capable of doing: T 47.14-.18. Further, he contended that the Tribunal’s failure to do so (as is apparent from CB 57[48]) meant that the reasons were “incoherent on their face” because they do not actually identify, in any comprehensible way, what it is that Olivia could or could not do in relation to particular things: T 49.38-.43.

Elaborating on this, Mr Jones made reference to the Tribunal’s comments in the second reasons at CB 53[31]-54[33], in which the Tribunal observed, by reason of Olivia’s answers to the Tribunal’s questions and video interview, that she is heavily dependent on Julie “to make decisions on her behalf in financial matters”. In relation to the affairs of the companies, Mr Jones accepted that Olivia was heavily reliant upon Julie to make decisions on her behalf: T 48.29-49.6.

Referring in particular to the second reasons at CB 56[44]-57[48], Mr Jones stated that the reasons demonstrate an error of law because the Tribunal appears to proceed upon the basis that Olivia’s dependence upon Julie in decision-making demonstrated her incapability, rather than (as CJ v AKJ shows) that being a matter relevant to assessing what capability was required in her particular circumstances: T 49.1-.28. Specifically, he submitted that Olivia’s reliance upon others (namely Julie) was not because of her advanced age but rather because that is how it had always been, even when she was in her 30s (at which time she relied on her husband, Oscar): T 49.30-.34.

Mr Jones observed that the standard of legal unreasonableness is sometimes expressed in a number of different ways. I note that in SZVFW, Gageler J stated at [53] (omitting footnotes):

On this ground, Ms Poukchanski submitted as follows (D1OS [45]-[47]):

Ms Poukchanski submitted that there was a relatively simple logic to the ordering of the Tribunal’s reasons, namely the Tribunal:

Ms Poukchanski submitted that Olivia’s interests are those that arise out of what would be the subject of, or affected by, the financial management order, and all of the matters that flow from that, including the financial success or growth of her assets: T 71.24-.27.

Cognisant as I am of the authorities in relation to legal unreasonableness, I consider that the Tribunal’s finding that Olivia was not capable of managing her own affairs lacks an evident and intelligible justification: Li at [76].

At the commencement of its reasons on this question, the Tribunal set out what it considered to be relevant aspects of Olivia’s evidence as follows (CB 53[31]-54[33]):

According to the Tribunal, those responses indicated that Olivia does not actively participate in the management of the companies and relies on Julie almost completely: CB 57[45].

It is not evident how or why the Tribunal reached its conclusion as to Olivia’s capability of weighing complex information (CB 57[48]) from the responses of Olivia to which the Tribunal referred. As the Tribunal indicated that it would not give much weight to Dr M’s opinion, there was apparently no other evidence (at least in the nature of medical evidence: CB 54[35]) before the Tribunal as to Olivia’s capability to manage her affairs. Indeed, the Tribunal found that Olivia is able to manage her “day to day” needs such as going to the local shops and having lunch with friends: CB 56[44]. It appears that the Tribunal has equated Olivia’s apparent lack of knowledge of certain matters relating to her finances and the companies as a lack of capability on her part to understand and deal with such matters. However, as a matter of logic, there is no such equivalence. That fact is all the more acute when one recalls that for the last 50 years or so almost all decisions in relation to Company A have been made by people other than Olivia, being Oscar initially and then Julie, and she has had little involvement in running the business: CB 24[147], 158[26], which evidence the Tribunal appeared to substantially accept.

Further, it seems to me that there was a failure of the Tribunal to identify the kinds of decisions that Olivia was called upon to make. I accept Mr Jones’ submission that the Tribunal could not properly draw conclusions about Olivia’s capability without focusing upon exactly what she was (supposedly) not capable of doing.

Ms Poukchanski at one point submitted that the Tribunal found that Olivia plays no part whatsoever in the financial affairs of Company A: T 63.24-.26. Yet the Tribunal also stated that, as a director, Olivia had a “formal, pivotal role” in managing the companies’ finances: CB 54[36]. The Tribunal appears to have made several unstated assumptions as to the nature of the requirements of Olivia’s directorship of Company A and Company B, including her “significant formal legal responsibilities”. Those unstated assumptions, in turn, appear to have informed its reference to the “complex information” which Olivia was said to be incapable of weighing: CB 57[48].

On the question of whether there was a need for another person to manage Olivia’s affairs, Mr Jones submitted that the Tribunal failed to afford the plaintiff procedural fairness, constituting an error of law. In particular, he submitted that there were two matters relied upon by the Tribunal that had not been raised for consideration by the parties at any stage of the proceedings. Mr Jones submitted that this issue affected the Tribunal’s findings under s 25G(b): POS [3(c)], [57], [58], [63], [65].

The two matters identified by Mr Jones appear at [51]-[52] of the Tribunal’s second reasons. For context, the Tribunal’s reasons at CB 58[50]-[52] were as follows:

I will refer to these two matters as the “lack of personal involvement and understanding reason” and the “complexity reason”.

Mr Jones submitted that (POS [64]):

In his oral submissions, Mr Jones submitted that there is no basis for the Tribunal’s finding that it “is not satisfied that [Olivia] would have made such a decision personally or with a full understanding of the full implications, including any tax implications, of such a decision”. He added that when read together with the findings regarding the ANZ bank account in [52] of the Tribunal’s reasons, it is simply a matter that is “plucked from relative obscurity by the Tribunal in circumstances where none of this was ever raised at all during various hearings”: T 12.7-.21.

Mr Jones emphasised the fact that the Tribunal’s comments regarding the payment of John’s comparative wage benefits and the sum of $125,000 from Olivia’s bank accounts in CB 58[51]-[52] came “completely out of the blue” in the Tribunal’s reasons and were never raised as issues with or put to Olivia and Julie, or anyone else: T 54.5-.13, 62.23-.30.

Ms Poukchanski’s written submissions on this ground were as follows (D1OS [49]-[50]):

In oral submissions, Ms Poukchanski contended that, in [51]-[52] of its second reasons, the Tribunal was referring to financial information that was provided by Julie under cover of an affidavit in which she spoke about demonstrating that there were no untoward financial flows in the company: T 63.7-.10. In that part of its reasons, the Tribunal was “simply demonstrating that there are transactions happening in the company which are not clear on their face”: T 63.10-.12.

The Tribunal dealt with the question of whether there was a need for a financial management order at [49]-[60] of its second reasons: CB 57[49]-60[60].

In concluding that there was a need to appoint someone to manage Olivia’s affairs “to ensure that her resources are well managed and used for her welfare and benefit” (CB 60[60]), the matters identified by the Tribunal were, in summary, as follows:

It was only the first two matters which were challenged by Julie on the ground of procedural fairness.

Ultimately, I do not consider that there was a failure to accord Julie procedural fairness in the Tribunal reaching the conclusions that it did in relation to the payments made by Olivia referred to in CB 58[51]-[52]. Whether or not there is an evident and intelligible justification for those conclusions is another matter which does not strictly arise under this ground.

In a statement which was accepted by the High Court in SZBEL at [29], the Court in Alphaone said at 592 that the requirement for procedural fairness:

There is not necessarily a dichotomy between a conclusion which “would not obviously be open on the known material” and one which was no more than a part of the “mental processes” by which the Tribunal arrived at its decision: SZBEL at [31]. Whilst the observations in SZBEL must be understood in the particular statutory context of that case, the High Court nonetheless emphasised that, in order to determine whether an adverse conclusion reached by a decision-maker was not obviously open on the known material, it is important to identify the relevant issue(s): see e.g. BAK15 v Minister for Home Affairs [2018] FCA 1173 at [49] per Griffiths J. Much turns on the level of generality or particularity at which the issue is identified: SZRAE v Minister for Immigration and Citizenship [2012] FCA 916 at [44] per Robertson J.

As Ms Poukchanski noted, the evidence of the payments on which the lack of personal involvement and understanding reason and the complexity reason were based came from Julie’s own evidence which she put before the Tribunal as an annexure to her affidavit, as well as financial statements of Olivia which Julie produced pursuant to an order from the Tribunal: CB 148[28], 174, 218, 325A. That order required the parties to provide “copies of relevant financial records including [Olivia’s] assets and liabilities and bank records, for the last 12 months”: CB 17.

Julie’s affidavit went to great length in explaining and giving context to Olivia’s lack of personal involvement in the companies’ operations and justifying the propriety of her and Robert’s management of Company A, as well as the financial flows between the various companies, trusts and family members: see CB 146[20]-148[33], 149[37]-150[41], 152[69]-154[75]. I largely accept Ms Poukchanski’s submission that Julie was plainly aware that these matters were in issue in the Tribunal needing to determine whether Olivia was capable of managing her affairs and whether there was a need for another person to manage them. To say that the Tribunal’s reasons at CB 58[51]-[52] raised new issues would, in my opinion, be identifying them with too much particularity. As noted above, procedural fairness is concerned with avoiding practical injustice.

In respect of the issues raised under s 25G(c) of the Guardianship Act regarding Olivia’s best interests, I propose to deal with the reasonableness issue before the restriction of freedom issue.

Mr Jones submitted that the Tribunal’s conclusion that it was in Olivia’s best interests for a financial management order to be made was legally unreasonable and demonstrated an error of law: POS [3(e)], [72], [83].

Specifically, he submitted the Tribunal’s approach was flawed in the following respects (POS [74]-[82]):

In his oral submissions, Mr Jones emphasised three particular aspects of the Tribunal’s conclusions which were said to demonstrate unreasonableness.

First, he referred to the finding of the Tribunal that “the present arrangements appear to be contributing to or exacerbating family division” (CB 63-64[74]), and submitted that the idea that a financial management order would result in improvement was “absurd”: T 56.4-.7.

Secondly, Mr Jones referred to the Tribunal’s conclusions as to the purported “imbalance or unfairness” of the payments that had been made to John on the one hand and Julie and Robert on the other, submitting that such conclusions lacked an evident and intelligible justification because (a) one does not see any reasoning for them in the decision and (b) they do not “grapple” with the critical evidence on that matter which indicated that any “discrepancy” was justified by the work those people were doing for Company A: T 9.10-.29, 56.27-.31.

Thirdly, Mr Jones referred to the Tribunal’s findings as to the company tax returns being left unfiled, questions about finances from the NSWTG being left unanswered and the tax losses of Company A, and submitted that there is “no proper basis” for any of those findings justifying the Tribunal’s view that it was not in Olivia’s best interests for the present arrangements to remain in place: T 58.6-.12.

Ms Poukchanski’s response focused on the alleged legal unreasonableness in respect of: (a) the failure to address the logical explanation for greater payments to Robert and Julie; (b) a lack of evidence before the Tribunal that appointing a financial manager would improve Olivia’s family relationships; and (c) the failure to have regard to evidence that explained why Olivia’s accountant failed to provide tax returns: D1OS [57].

In this respect, her written submissions were as follows (D1OS [58]-[61]):

Under the heading “Is it in [Olivia’s] best interest that a financial management order be made?”, the Tribunal contrasted Olivia’s personal day-to-day financial affairs with her other affairs in the following respect (CB 60-61[63]):

The Tribunal then stated (CB 61[64]):

The Tribunal made reference to evidence of Kylie, including assertions of alleged unfair treatment: CB 61[65].

The Tribunal then referred to John’s evidence in the following terms (CB 62[66]):

The Tribunal then concluded (CB 62[67]):

I accept the submission of Mr Jones that the Tribunal appears to have unduly focused on John’s assertions as to the “pattern of distributions” and other payments to family members providing “significantly greater financial benefits” to Julie’s family than to his own.

I accept Mr Jones’ submission that the Tribunal’s findings on this issue about the so-called “imbalance of payments” to John lacked an evident and intelligible justification.

The unchallenged evidence of the reason for Robert’s employment by Olivia and Julie was stated by Julie as follows (CB 146[18]):

The Tribunal did not refer to any of the detailed evidence that gave an entirely rational explanation for the imbalance of payments. The rational explanation, taken from the evidence, is that Julie had long been heavily involved in Company A’s operations and Robert (the person of whom John primarily complained) had come to be employed by Company A in 2015, in a context in which he had for the better part of two decades held senior managerial positions in large state government and multinational organisations. John, on the other hand, had been dismissed from his employment in Company A in about 2018 and appears to have been paid a very substantial amount of money (though not as much as Robert) while no longer having any involvement in the company’s operations: T 56.33-.40.

Robert gave detailed evidence as to the improvements he had overseen to the operations and overall financial position of Company A since he joined, which included: having fees for his consulting services to clients redirected to be paid to Company A; providing the analysis and drive for a property investment which provided Company A with $425,000 in capital profit, in addition to an annual return of almost four per cent; organising and negotiating the proposed sale of certain properties valued in the tens of millions of dollars; ensuring that Company A meets its regulatory requirements; and establishing the company’s online business operations: CB 163[14]-164[22]. Through implementing better tax planning processes, he has also reduced the costs incurred by Company B by $70,000 per annum, as well as reduced the total tax burdens of Olivia, Julie and John by over $200,000 in 2020 to 2022.

In 2022, being the year in which he made the application to the Tribunal, John was paid over $70,000 for undertaking no work at all, and Kylie was paid over $80,000 for work which approximated to 2-3 hours of sewing per week: CB 152[65]-[66].

In that context, it would not be unusual for there to be a disparity in payments to each of Robert and John. Indeed, it would be unusual if they were paid a comparable amount. Mr Jones emphasised the point by the fact that, when one looked at the wage benefits and additional distributions made to John and Kylie, they were receiving significantly more than Julie, who was the working director of both companies: T 57.34-.44.

John had no actual insight as to the nature and demands of Robert’s employment. The unchallenged evidence of Julie regarding Robert’s involvement was as follows (CB 148[32]-[33]):

There was no reasonable basis for the Tribunal to conclude that the “imbalance of payments” had itself contributed to the “estrangement and isolation” of John and his family from other family members, as distinct from John’s own personal views of perceived injustice and his conduct towards other family members (including aggressive behaviour which led to an apprehended domestic violence order being taken out against him by Robert and James: CB 292-294). Kylie’s contentions (made orally as pure assertions before the Tribunal) that John has had less and less involvement in the family business since Robert has been involved did not take the matter any further. While it might be said that it is not in Olivia’s best interests that her family is “fractured” and “at loggerheads in relation to financial matters”, the imbalance of payments to family members was not the cause of those issues.

I also accept Mr Jones’ submission that there is no basis in the evidence for the Tribunal’s conclusion that John’s side of the family has had benefits to which they were accustomed “significantly reduced”, which “adversely impacted upon family relationships”: CB 64[76]. The Tribunal did not refer to any evidence in drawing this conclusion. Indeed, on my review, the only evidence of benefits received by the family members from the business and trusts over time was the “[Company A] Family Benefits & Summary 2018-2022” to which Julie referred in her affidavit: CB 325A. Rather than show that the benefits to John and his family have “significantly reduced”, that summary shows that the total benefits received by John and Kylie over that period increased in some years and decreased in others.

Finally, I consider that, for the reasons given by Mr Jones in his written submissions (POS [81]), the Tribunal’s reliance on the accountant’s failure to file tax returns, the unanswered requests of the NSWTG and the tax losses of Company A (CB 65[79]) was misplaced. The Tribunal’s reasoning from those matters to its conclusion that it is not for the benefit of Olivia for the present arrangements to remain in place is not evident.

The Tribunal found that, at a personal “day to day” level, Julie and Robert “look after [Olivia] well, attending to take her to medical appointments and ensuring that she has money in her personal accounts, with all matters of a more serious complex nature in the financial area handled by [Julie] and [Robert]”: CB 60-61[63]. In light of the above, and my findings in relation to Ground 3, it is not at all evident how the Tribunal could have reasonably concluded then that “this arrangement leaves [Olivia] open to possible financial abuse, exploitation and/or reputational damage, as she does not have the capacity to participate actively in decisions being made in [Company B] and [Company A]”: see also CB 65[80].

I reject the submission that the Tribunal’s findings in relation to Olivia’s best interests were within a range of “decisional freedom” where reasonable minds might differ. I consider that the Tribunal’s conclusion that it was in Olivia’s best interests for a financial management order to be made lacked an evident and intelligible justification.

In reaching the conclusion that it was in the best interests of Olivia for a financial management order to be made, Mr Jones submitted that the Tribunal failed to have regard to a mandatory relevant consideration and thereby committed an error of law: POS [3(d)], [66], [71].

He highlighted the statutory provisions as follows (POS [67]-[68]):

Mr Jones’ written submissions were then as follows (POS [69]-[71]):

During the hearing of the appeal, Mr Jones drew attention to the decision of Lindsay J in Re P at [319], in which his Honour stated:

Mr Jones submitted that it was of critical significance that the Tribunal failed to refer at all to the principle under s 4(b) that “the freedom of decision and freedom of action of such persons should be restricted as little as possible” in its second reasons: T 55.10-.35.

That is to be contrasted, Mr Jones submitted, with the Tribunal’s focus in its second reasons on s 4(e), concerning the importance of preserving family relationships: CB 63-64[74]. Mr Jones submitted that the Tribunal appears to have inappropriately focused upon John’s complaints of how he was being treated, rather than the care of Olivia: T 55.37-.43, 56.4-.7.

In response, Ms Poukchanski submitted as follows (D1OS [53]-[56]):

As a matter of statutory construction, I express some doubt that the principles set out in s 4 of the Guardianship Act are necessarily “mandatory considerations” for the exercise of the power to make a financial management order in the sense explained by Mason J in Peko-Wallsend at 39: see Lo v Chief Commissioner of State Revenue (2013) 85 NSWLR 86; [2013] NSWCA 180 at [9] per Basten JA (as his Honour then was). However, as is evident from Ms Poukchanski’s submissions extracted above, the appeal was argued on the basis that the principles in s 4 of the Guardianship Act are mandatory considerations in that sense.

Assuming that the principle set out in s 4(b) is a mandatory consideration, I consider that the Tribunal did take it into account in making the financial management order which it made. This fact is evident from the Tribunal’s exclusion of Olivia’s two personal bank accounts and credit card from the order. The Tribunal explained the reason for this exemption at CB 65[81]-[82] as follows:

Whilst not employing the precise words in s 4(b), I am satisfied that the Tribunal’s use of the italicised words above indicates that, in substance, it had taken into account that principle.

Costs are in the discretion of the Court: s 98(1)(a) Civil Procedure Act 2005 (NSW). Generally, if the Court makes any order as to costs, the Court is to order that the costs follow the event unless it appears to the Court that some other order should be made as to the whole or any part of the costs: r 42.1 Uniform Civil Procedure Rules 2005 (NSW).

Although the proceedings involve an appeal from the Guardianship Division of the Tribunal, the proceedings of their nature are analogous to proceedings within the Court’s protective jurisdiction.

The approach for costs in such circumstances is different from ordinary litigation. That approach (in the context of an appeal in relation to a statutory Will) was described by the Court of Appeal in Small v Phillips (No 3) [2020] NSWCA 24 at [2] in the following terms (omitting footnotes):

That approach is consistent with the approach taken by Lindsay J in C v W (No 2) [2016] NSWSC 945 at [19], in relation to costs of an appeal from the Guardianship Division of the Tribunal and incidental proceedings (citing the decision of Powell J in CCR v PS (No 2) (1986) 6 NSWLR 622 at 640E-G).

My provisional view is that there be no order as to costs, to the intent that each party will bear their own costs of the proceedings.

If the parties wish to contend for any different costs outcome, I will give them the opportunity to address the Court specifically on the question of costs.

The orders that I make are as follows. The Court orders that: