Re UF

1. [1]

   HIS HONOUR: This is an appeal, or alternatively an application for leave to appeal, from orders made in the Guardianship Division of the NSW Civil and Administrative Tribunal (“the Tribunal”) on 31 March 2016 in relation to a person whom I will call F. F is an 81 year-old lady who resides with one of her daughters (J) and J’s family. F also has a son, (W), and two other daughters, (I) and (M).

2. [2]

   On 31 March 2016 the Tribunal made a guardianship order in respect of F in the following terms:

3. [3]

   On the same day the Tribunal made a financial management order in respect of F’s estate in the following terms:

4. [4]

   Under clause 14(1)(b) of Sch 6 to the Civil and Administrative Tribunal Act 2013 (NSW) an appeal to this court lies as of right from the decisions of the Tribunal sitting in its Guardianship Division on any question of law or, with the leave of the Court on any other grounds.

5. [5]

   The proceedings before the Tribunal were commenced by applications brought by I, M and W for the appointment of a guardian to F, and by W for the making of a financial management order. The parties to the guardianship application were F, W, I, M, J and the Public Guardian. F resided with J and her family. F had appointed J and M as her enduring guardians by an instrument made on 20 April 2006.

6. [6]

   F had appointed M as her attorney on 28 March 2006. On 13 May 2015 F appointed J as her attorney under an enduring power. The power of attorney provided that unless expressly authorised J could not gain a benefit from being F’s attorney. On 20 September 2015 F executed a revocation of the power of attorney dated 28 March 2006.

7. [7]

   The appeal and application for leave to appeal were brought by J. F was joined as a defendant but did not play any part in the proceeding. No issue was taken with respect to J’s standing to bring the appeal and application for leave to appeal. In substance, J sought to advance what she contended were the interests of F. No tutor was appointed for F.

8. [8]

   The summons commencing the appeal and application for leave to appeal did not identify the particular questions of law in the appeal. It should have done so. As Gummow J said in TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 82 ALR 175 at 178; [1988] FCA 119:

9. [9]

   The amended summons identified six grounds of appeal that the Tribunal erred in law in various respects. In oral submissions counsel for the plaintiff sought to identify particular questions of law on which an appeal could lie as of right. Some of the questions as formulated in oral submissions raised issues not identified in the summons as grounds of appeal. The questions of law were formulated on the run, as it were. As I understood them they were as follows:

10. [10]

    In so far as the grounds of appeal did not raise questions of law, the plaintiff sought leave to appeal.

11. [11]

    W, I and M appeared on the hearing of the summons. As noted above there was no appearance filed for F. The Public Guardian and the NSW Trustee and Guardian filed submitting appearances.

Preliminary Issue: Guardianship Order 5(b)

1. [12]

   It was common ground that order 5(b) of the guardianship order should be set aside. This was the order that provided that the Public Guardian was to have the function of deciding where F should reside and authorising others to take her to a place approved by the Public Guardian, to keep her at that place and return her to that place should she leave it. In its reasons for its decision of 31 March 2016 the Tribunal stated under the heading “What the Tribunal decided” that:

2. [13]

   In fact the order made on 31 March 2016 was not restricted to those matters. In para 47 of its reasons the Tribunal reiterated that:

3. [14]

   The transcript of the hearing on 31 March 2016 indicates that when the order was made the Tribunal intended to include accommodation within the functions to be included in the guardianship order. The transcript includes the following (T76-77):

4. [15]

   This is confusing, as it appears that the Tribunal’s initial intention was that accommodation would be included in the functions given to the Public Guardian. But the Tribunal gave no reason as to why the Public Guardian should be appointed to make decisions about accommodation. The fact that F was happy with her present accommodation with the plaintiff’s family would not be a reason for giving the Public Guardian the function of making decisions about her accommodation.

5. [16]

   There is a question whether paras 1 and 47 of the formal reasons published in May 2016 may have inadvertently omitted the word “accommodation”. But the statement of the reasons for decision included no reason for making an order that the functions of the guardian should include decisions about accommodation. To the contrary, the formal reasons explicitly exclude such a function, contrary to the actual terms of the order.

6. [17]

   In these circumstances it is not surprising that the parties agreed that the orders of the Tribunal should be set aside in so far as they gave the Public Guardian the function of deciding where F resides.

Relevant Provisions of the Guardianship Act

1. [18]

   The plaintiff contends that the Tribunal failed to give effect to the principles in s 4 of the Guardianship Act. Section 4 provides:

2. [19]

   In particular, the plaintiff contends that the Tribunal failed to apply s 4(d): that the views of persons who have disabilities be taken into account.

3. [20]

   Section 14 of the Guardianship Act provides that the Tribunal may make a guardianship order for a person if it is satisfied that because of a disability he or she is totally or partially incapable of managing his or her person (s 3(1)). A person with a disability includes a person who is intellectually, physically, psychologically or sensorially disabled, or of advanced age, or is otherwise disabled, and by virtue of that fact is restricted in one or more major life activities to the extent he or she requires supervision or social habilitation (s 3(2)).

4. [21]

   Section 15 of the Guardianship Act relevantly provides:

5. [22]

   In relation to the appointment of a financial manager, s 25G of the Guardianship Act provides:

Course of Proceedings Before the Tribunal

1. [23]

   The proceedings before the Tribunal were instituted by an application for the appointment of a guardian lodged on 9 July 2015. The application was made by I, M and W, who were the children of F. They said that the reasons why the Tribunal should appoint a guardian were that:

2. [24]

   On 4 March 2016 W lodged an application for the appointment of a financial manager to F. He asserted that:

3. [25]

   The first hearing before the Tribunal was held on 7 March 2016. Before the hearing the Tribunal received information concerning F’s circumstances from a variety of sources. Subsection 38(2) of the Civil and Administrative Tribunal Act provides that the Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice. Subsection 38(4) provides that the Tribunal is to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms. A Procedural Direction issued by the Tribunal, “NCAT Guardianship Division Procedural Direction 1” notes (at para 7) that in the Guardianship Division:

4. [26]

   This is consistent with the traditional role of courts and tribunals exercising a protective jurisdiction.

5. [27]

   F’s general practitioner was a Dr Harvey. He provided a report on 23 February 2016 in which he said that F had been his patient for about two years and that he visited her regularly at her home. Dr Harvey said that F appeared to be happy and content at home with stable weight, nil skin breakdown, good hygiene, and was obviously well cared for by her family. He said that F had lumbar stenosis and so walking was very difficult and she could not leave home, apart from going to church on Sundays, which was two minutes away. He said that F understood him and did not need an interpreter and that her family provided and supervised all medication in a competent manner. He gave no statement of her current medications or past medical history.

6. [28]

   The material before the Tribunal included evidence that showed that F’s husband died in November 2015. They had owned a house in Eagle Vale which passed to F. F had stayed for some time with W, but that arrangement did not work out. According to a statement made by J, from June 2006 F and her husband frequently stayed with J and her husband (L) and their children. J said that her parents’ stays became longer and more frequent and they would stay for months and then go back to their own house for a short time. J said that in December 2014 F was admitted to Campbelltown Hospital. She was later transferred to Auburn Hospital. According to J, when F was in hospital W asked the social worker to put F in a nursing home. J said that she was shocked when she heard this because F wanted to come back home to live with J and her family. According to J, the doctor said that the best thing for F was to return home with J and not to go to a nursing home, and that this happened in March 2015. J said that in May 2015 she called W and told him that F wanted to sell F’s house and buy with J.

7. [29]

   After discharge from hospital F lived with J and her family.

8. [30]

   F’s daughter, I, provided a statement to the Tribunal on 1 March 2016. She lived in the United States. In her email of 1 March 2016 she stated that she had visited both her parents in June of the previous year. She was critical of their living conditions. She said that whilst she was there her parents both wanted to go back to their own home as relatives from Hong Kong and New Zealand were coming to visit, but J and her husband prevented them from going, citing medical appointments, but knowing that she could easily have taken them. She said that F looked unkempt and was critical of various aspects of the care provided to F. She also said that she felt J and L had been misusing their parents’ pension. She provided further statements in support of that contention. “I” had provided a more detailed statement in relation to visits to her parents on 6, 8 and 10 June 2015. She said that she and W visited their parents on 6 June and was stopped by L who insisted that he talk to them before they went upstairs to see their parents. W, who had had frequent rows with L and J, declined and said there was nothing further to say. “I” said that L said that if that were the case then to get out of the house. She and W then walked out of the house. After L had further discussions alone with I, I visited her parents and was shocked to see them so frail. She said that F told her that it was like a prison. She told F that she thought that F and her husband would be better off in a nursing home under proper care, and offered to take them to check out some nursing homes with F’s sister. There was discussion about the sale of the parents’ house in Eagle Vale. The statement continued in the third person:

9. [31]

   In response to a statement by L to I saying that I had not been to visit for the last five years, I stated that she had visited her parents three times in the previous five years and had been in constant phone contact with them while they lived in their own home. I said it was difficult to speak to her mother while they were in J’s home and when she did reach them on the phone, F always said not to talk too long as the phone was almost always on speaker and she said she could not speak much or was not able to hear clearly as the line was not clear. I also said that while J and L had said that the family could go over at any time to visit, J was always sitting in the room throughout the visits. She said that her aunt (who had visited from Hong Kong) and cousins had said that while J was sitting there they were not able to speak freely with F, fearing that they might upset J.

10. [32]

    The “Aunty” was F’s sister-in-law, (C), who was on a visit from Hong Kong. She made a statutory declaration that corroborated I’s statement to the effect that W could not get into the house to see his parents. She said that when they arrived W and I were stopped from entering the house by J and her husband, and they started to quarrel vigorously. C went upstairs directly to the room of F and told her that they had come to take F and her husband home (that is, to their home at Eagle Vale). According to C, J came into the room and refused to let F and F’s husband go back home for a gathering. Soon after I and L arrived and J and L angrily turned down the request. C said that J threatened her parents in Chinese by saying “If you two leave this house, never come back, ever.” C said that F was frightened and her hands were shaking. She said that L angrily told her to go and pulled her up. According to C, she asked F if she wanted to go home and F replied that “there’s no way out”. J asked her to leave.

11. [33]

    On 19 February 2016 F entered into a contract for the sale of the Eagle Vale property for $460,000. W submitted to the Tribunal that F had been unduly influenced by J and her husband in selling her house and that the sale was not in F’s best interests. On the present hearing J deposed that a deed was prepared that was supposed to convey her parents’ instructions regarding the sale of their home. The deed was not signed by any party. The draft deed was before the Tribunal. The document was undated but prepared in 2015 and was expressed to be made between F and her husband and J. It recited that F and her husband had resided with and had been cared for by J and her extended family for more than five years and the parties were desirous of maintaining and continuing their existing lifestyle and accommodation to avoid the necessity of procuring full-time nursing home care, unless due to total incapacity. The draft deed provided that F and her husband would do what was necessary to sell the Eagle Vale property and that the net proceeds of sale would be transferred to J to be held by her as a trustee for F and her husband to provide accommodation and facilities at an appropriate level in a residential facility to be registered in J’s name or in the name of her extended family. The draft deed provided that J would continue to care for and maintain the existing arrangements for her parents’ accommodation and it provided that she acknowledged that upon the death of both of her parents she would pay to her siblings an amount representing a quarter share of the Eagle Vale property. The intention behind the draft deed was that the proceeds of sale of the Eagle Vale property would be used to acquire a property in the name of J or one of her family in which F would live and be cared for by J and her family.

12. [34]

    The first hearing of the Tribunal took place on 7 March 2016. F attended at the hearing. She was accompanied by an interpreter. The Tribunal was told that F only wished to stay for a short period and that she complained of pain. The Tribunal said that given that F indicated she only wished to stay for a short period they would ask everybody else to leave the hearing room except for the interpreter. The Tribunal had a private discussion with F. In the course of that discussion F said that she had made her own decision to live with J and L and that she was happy there. One of the Tribunal members told F that some of her other children had said that she was not happy living with J, but F denied that. F said that she was mad at the suggestion that she had not been allowed to see her other children. She said that she did not know why her other children did not come to see her. She said that she had been living with J and L for almost 10 years and that she was going to sell her own house. She said that she made a change to her power of attorney to appoint J as her attorney because there was too much fighting. She said that she wanted J to manage her money. She was asked about the sale of her house and what would happen with the money from the sale. She said that “I’ve got to buy another one.”

13. [35]

    At this point the questioning of F ceased as she was uncomfortable and needed to be taken home.

14. [36]

    The hearing was adjourned to 31 March 2016.

15. [37]

    Between 7 and 31 March 2016 the Tribunal appointed a solicitor, Ms Kwan, to represent F. Ms Kwan was appointed as “separate representative” for F. Section 44(4)(b) of the Civil and Administrative Tribunal Act provides that the Tribunal may appoint a person to represent a party. A publication issued by the Tribunal called “NCAT Fact Sheet Guardianship Division Separate representation” stated that a separate representative:

16. [38]

    On the resumed hearing on 31 March 2016 Ms Kwan appeared as F’s separate representative. F was present on the resumed hearing but indicated that she wished to leave. The presiding member of the Tribunal noted that F had had the opportunity to speak to the separate representative whose role was to provide an independent opinion, but also to assist F at the hearing and to present her views as well.

17. [39]

    Ms Kwan advised the Tribunal that F was happy to stay at J’s place or with J’s family and to have a doctor visit her fortnightly. Ms Kwan said that F wanted to be able to see her children but she could not, and the children were fighting. Ms Kwan said that in her own view F was partially impaired by her advanced age, her physical frailty and her dependency in making decisions, but her observation was that F probably had more capacity than was perceived due to a number of factors. She said that her own preliminary view was that there was probably a need for decision-makers in certain areas, but to know in exactly what areas she would need to see the evidence. She said that her preliminary view was that at least access, that is, F’s seeing her children, and maybe services to help her stay at home as much as possible, were such areas. As for the financial management order, Ms Kwan said that her preliminary view was that there was a need for somebody to manage the money, especially as the completion of the sale of F’s house was imminent. Ms Kwan stressed that those were her preliminary views and were subject to what would be discussed during the course of the hearing.

18. [40]

    The Tribunal had already received statements from F’s children and others. W made various complaints about the adequacy of J’s home. Issues were ventilated concerning the funeral of F’s husband. It was at this point that F said she wished to leave. F was present when Ms Kwan expressed her preliminary views as noted above.

19. [41]

    J asserted that complaints made by the applicants were lies. A Tribunal member asked J how she could ensure that F did get to see her other children. J responded by saying that they could ask to come and see F and then asserted that complaints made by W and M about difficulties in seeing F were lies. On the question of capacity L said that:

20. [42]

    The presiding member of the Tribunal noted that the medical evidence was not strong. L said that he and J did not know what evidence was requested. Shortly after that W asked what Dr Harvey had to say regarding F’s mental capacity. The presiding member noted that Dr Harvey’s report did not comment on F’s ability to make decisions. Neither J nor L asked the Tribunal to telephone Dr Harvey to seek amplification of his report. Dr Harvey had told a staff member of the Tribunal before the hearing that he could be contacted on his mobile phone, but would not be available for very long because he had patients to see. The staff member’s file note said “[h]e wont’ have much information to add to the hearing”

21. [43]

    During the course of the hearing L said that “we have never denied them access until the funeral, when they stole the body …”. He acknowledged that there were a “few altercations” which he attributed to W’s always bringing up that F be put into a nursing home. During the course of the hearing someone, who was not identified on the transcript but appears to have been a member of the Tribunal, noted that the two guardians (viz J and M) disagreed. L said that the appointment of guardians could be revoked, which someone, apparently a Tribunal member, doubted because it appeared to that person that “at the moment [F] has at least a partial impairment in her decision-making”. In response to that L said “That’s not what the doctor said”, and “you’ve got to take the doctor’s opinion”. It appears that L was referring to Dr Harvey’s report, but Dr Harvey did not express any opinion on F’s capacity and neither J nor L nor F asked for him to be called.

22. [44]

    During the course of the hearing both Ms Kwan and a Tribunal member identified as an issue that F was nervous speaking her mind in the presence of others, that she preferred to stay at home, that is, in J’s home, but appeared to be under some constraint in expressing her wishes.

23. [45]

    Although F left the hearing room, she did not leave the Tribunal’s premises. After a morning tea adjournment the Tribunal expressed concern that it had learned that F had remained in a car in the car park of the Tribunal’s building, rather than being taken to a more comfortable location. The possibility of the Tribunal’s concluding that F was under constraint in freely expressing her views in the presence of J and L had been clearly raised prior to the morning tea adjournment. Neither J nor L asked the Tribunal to hear further from F in relation to that matter.

24. [46]

    Ms Kwan was asked whether she had an opportunity to talk to F about her financial affairs. Ms Kwan said that:

25. [47]

    Ms Kwan expressed concern that because of F’s vulnerability she was not sure that F was freely able to express her wishes as to how the proceeds of the house should be applied.

26. [48]

    The Tribunal spent some considerable time with the members of the family dealing with past matters relating to F’s financial affairs and how her moneys had been applied by family members. At the hearing before the Tribunal L reiterated that the proposal was that a house be bought using the proceeds of sale of the Eagle Vale house that “would be in our name”, but a solicitor who was acting for J and L, and presumably F, on the purchase, a Mr Tarmo, said that they would have to borrow money for a new purchase and his preference was for F to be on the title, apparently also as mortgagor. This led to the Tribunal’s conclusions in relation to financial management referred to below.

Tribunal’s Reasons

1. [49]

   The Tribunal concluded that F was in need of a guardian within the meaning of s 3(1) and (2) of the Guardianship Act. In reaching that conclusion it referred to reports relating to the hospitalisation of F between January and March 2015, to an occupational therapy report dated 3 March 2016, to a report of a social worker, and to the report of Dr Harvey referred to above. The Tribunal considered that Dr Harvey’s report was of limited utility other than that it confirmed that F appeared to be happy and content and was well cared for and could not leave her home due to mobility issues other than to attend church (at [21]). The Tribunal was concerned that Dr Harvey’s report made no reference to F’s diagnosis of Parkinson’s Disease, nor to mobility issues other than walking. It considered that Dr Harvey’s report did not assist it in terms of considering F’s capacity to make informed decisions in respect of complex lifestyle decisions or financial affairs. The Tribunal referred to notes of St. Joseph’s Hospital of 8 September 2015 relating to F’s medical condition. The Tribunal noted that the hospital file was closed in November 2015 when J failed to respond to Aged Care Assessment Team’s requests for contact with their office.

2. [50]

   The Tribunal noted that Ms Kwan told the Tribunal that she had reached the view that as a result of advanced age, frailty and total dependence upon others, F presented with at least a partial impairment in her ability to make important life decisions. The Tribunal concluded that F was a person who was suffering from a disability that at least partially prevented her from making important life decisions. It considered that the view of Ms Kwan that F was a person for whom the Tribunal could make a guardianship order was consistent with the medical evidence and the Tribunal’s own observations on the two occasions that F appeared before it.

3. [51]

   The Tribunal noted that F participated only briefly in the Tribunal hearings and had stated strenuously and consistently that she was happy living with J’s family (at [27])

4. [52]

   The Tribunal recorded that Ms Kwan told the Tribunal that her observation was that F was extremely nervous about the hearing and was very dependent upon J and her husband to settle down and they appeared to be capable of calming her. The Tribunal noted that Ms Kwan considered that as a result of F’s dependence upon J and L she appeared to be fearful about what she should say and whether there would be negative repercussions from things she said. The Tribunal drew the same conclusion from F’s appearance before it on 7 March 2016. The Tribunal said that F was very frail and appeared to be fearful of speaking or giving her views until she was away from other people. It noted that at that point in the hearing, when she was away from others, she spoke clearly of her preference to remain living with J and L, but also spoke of her strong desire to see her other children and to have contact with them. There was evidence before the Tribunal that J and L were inhibiting such access.

5. [53]

   The Tribunal summarised evidence given to it by J and L and noted that they had strong views that F should be cared for in their home by family members and were vehemently opposed to nursing home care. The Tribunal concluded that:

6. [54]

   This conclusion was arrived at in part as a result of the Tribunal’s assessment of F when she appeared before the Tribunal.

7. [55]

   The Tribunal concluded that:

8. [56]

   It was for this reason that the Tribunal considered that a guardian should be given the function of deciding questions of access to F.

9. [57]

   The Tribunal also concluded that a guardian should have the function of deciding questions of services. In doing so, it referred to concerns expressed by an occupational therapist about the safety of transporting F on stairs in the house. It noted that Ms Kwan had the same concerns as expressed by the occupational therapist about the safety of transporting F on the stairs (at [40]). The Tribunal said that:

10. [58]

    The Tribunal noted that the enduring guardian appointment would be suspended for the duration of the guardianship order. It noted that J and M who had been appointed as enduring guardians may not be able to co-operate successfully for F in the future. They were in conflict.

11. [59]

    The Tribunal had regard to s 15(3) of the Guardianship Act quoted above. It noted that there was no proposal that a private person be appointed as guardian. It concluded that although F had a number of involved and caring people around her, it was satisfied that family members would not be able and willing to exercise functions in accordance with s 4 of the Guardianship Act and was satisfied that the Public Guardian should be appointed.

12. [60]

    The Tribunal also concluded that F was not capable of managing her own affairs (Guardianship Act, s 25G). In reaching that conclusion the Tribunal noted evidence that from time to time J and L and also M and W had been involved in the management of F’s finances (at [65]). The Tribunal noted that on 20 September 2015 F had revoked the appointment of M as her attorney. It recorded:

13. [61]

    The Tribunal recorded that J and L were strongly opposed to the making of a financial management order and that their view was that F’s affairs were being managed under the power of attorney by which J was appointed and there was no conflict of interest in the way that she managed F’s affairs. The Tribunal was not so satisfied. The Tribunal concluded that for many years F’s children had been able to access her bank accounts and have mail redirected and her money put aside. It said that:

14. [62]

    It was not satisfied that a system set up by J of putting money aside in the home was sufficiently secure to protect F’s cash assets. It noted that at least three of F’s children had been able to operate her bank accounts, regardless of who was attorney under power (at [77]). It referred to the Deed of Agreement referred to above and said:

Grounds of Appeal

1. [63]

   The purported grounds of appeal were as follows:

Consideration of Identified Questions of Law

1. [64]

   The first ground of appeal and the first question of law (as outlined at [9] above) raised by the plaintiff is whether F was denied procedural fairness. The answer to that question is no. To the contrary, the Tribunal went to considerable efforts to attempt to ascertain F’s views. It interviewed her privately and appointed a separate representative to speak to her, so that her wishes could be obtained in a non-stressful setting and conveyed to the Tribunal. The Tribunal did not deny F procedural fairness merely because F may have been unable fully to state her views because appearing before the Tribunal caused her physical distress.

2. [65]

   Nor did the Tribunal deny F or the plaintiff procedural fairness by not itself telephoning Dr Harvey. Dr Harvey’s report had expressed no opinion on F’s mental capacity. This was noted by the Tribunal during the course of the hearing. It was open to F and to the plaintiff to have procured such an opinion from Dr Harvey. As noted at [42] above, Dr Harvey had told a registry officer that he had little to add.

3. [66]

   In the summons the plaintiff also raised as a ground of denial of procedural fairness that the Tribunal failed to inform her and F that it had formed the view that F was fearful of speaking or giving her views until she was away from other people and thereby denied them an opportunity to respond to adverse information.

4. [67]

   However, that issue was squarely raised by Ms Kwan during the course of the hearing on 31 March 2016 in the plaintiff’s presence. The plaintiff had every opportunity to respond. She could also have recalled F if F were physically capable of making a further appearance. If F were not able to appear before the Tribunal because it caused her such physical distress, there was nothing further that could be done. F did not give evidence on the present application as to what she might have said had this matter been raised directly with her. That is to say, there is no evidence that had the Tribunal proceeded differently it might have made any difference to the outcome of the hearing (Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145; [1986] HCA 54; Allesch v Maunz (2000) 203 CLR 172 at 183 [28]; [2000] HCA 40; Murphy v Doman (2003) 58 NSWLR 51; [2003] NSWCA 249 at [51]; D’Amore v Independent Commission Against Corruption [2013] NSWCA 187 at [142]). In any event, procedural fairness does not require the Tribunal to put its preliminary views or thought processes for comment (Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 at [9]; [2011] HCA 1).

5. [68]

   The plaintiff submitted that there was a failure to afford procedural fairness because it did not ensure that the views of Ms Kwan were heard by F and thereby did not accord F the opportunity to be heard on Ms Kwan’s statement of opinion that she seemed reluctant to voice her wishes and that she needed an independent person to give effect to her wish to see her other children. That submission is not borne out by the transcript which indicates that F left the hearing on 31 March 2016 after Ms Kwan said that F wanted to be able to see her children, but she could not and the children were fighting; that in Ms Kwan’s view, F was partially impaired by her advanced age and physical frailty and her dependency in making decisions; that her preliminary view was that there was probably a need for decision-makers in some areas and, in particular, to access for seeing her children, and maybe services to help her to stay at home; and that her preliminary view was that there was a need for somebody to manage the money, especially with the imminent sale of the house in Eagle Vale.

6. [69]

   The plaintiff submitted that the recorded questioning of F about her income, assets and financial plans was very brief, that she was not given the opportunity to comment on observations that she seemed reluctant to voice her wishes, she was not given the opportunity to say why she was nervous and anxious, she was not given the opportunity to answer questions in English, she was not clearly put on notice that the Tribunal considered her physical condition attracted the jurisdiction and that by reason of her frailty and dependence she was in need of substitute decision-making, she was not taken to the statements and assertions by her other children and given the opportunity to respond to them, she was not given an opportunity to comment on the perception that she wanted to see her other children but could not make a decision to do so because of her frailty and because she was in the home of J and L, and she was not clearly informed by the Tribunal that the purpose of the hearing was to determine whether she was capable of making her own decisions, she was not asked to comment on her Centrelink entitlements or the impact of a gift on them, and she was not asked if she intended to make a gift of her capital to J and L.

7. [70]

   These criticisms of the Tribunal missed the point that F was unable to participate in the Tribunal’s hearings because of her physical distress. Her inability personally to participate in the hearing by reason of that distress did not preclude the Tribunal from dealing with the applications before it. The Tribunal did what it reasonably could do to afford F the opportunity to participate personally. It went further by appointing a separate representative.

8. [71]

   In her oral submissions the plaintiff through her counsel submitted that the Tribunal failed to afford her and F procedural fairness in that it failed to provide F with legal representation. This was not a ground of appeal in the summons. Under s 45(1)(a) of the Civil and Administrative Tribunal Act a party to proceedings in the Tribunal is not entitled to be represented by any person and may only be so represented if the Tribunal grants leave. The Tribunal arranged for F to be represented by a solicitor as a “separate representative” rather than legal representative of F. As developed in oral submissions, I understood the plaintiff’s complaint to be that it was not appropriate for Ms Kwan to assume the role of a separate representative who would give her own opinion as to whether F was totally or partially incapable of managing her person because of a disability, and as to whether she was capable of managing her own affairs. Counsel for the plaintiff submitted that until it had been determined that F lacked capacity it was not proper for a person appointed to represent F to act in substance as a witness by putting forward her own views, but instead should act only as an advocate to put before the Tribunal those matters that she considered could properly be put before the Tribunal on behalf of F in accordance with F’s instructions.

9. [72]

   In my view this submission should not be entertained. It was not raised as a ground of appeal in the summons. F did not appear either by herself or by her representative on the hearing of the summons. The submission addresses only the position of F, not the plaintiff. The submission raises important questions as to the role of a separate representative before the Tribunal. Principles that have been developed in relation to the roles of a separate representative in other contexts (for example the representation of children in family law proceedings; In the Marriage of Bennett (1990) 102 FLR 370) are not necessarily applicable to proceedings in the Guardianship Division of the Tribunal. Importantly, s 38 of the Civil and Administrative Tribunal Act provides that, subject to the rules of natural justice, the Tribunal may inquire into and inform itself on any matter in such manner as it thinks fit. Prima facie, this provision is wide enough to allow a separate representative to carry out the functions described in the Fact Sheet noted at [37] above in cases in the Guardianship Division where a person’s capacity is in issue. But I prefer to express no concluded view on this question which does not arise on the grounds of appeal identified in the summons. I would not be minded to grant leave to the plaintiff to amend the grounds of appeal (and no amendment was sought), given that F did not appear and the Public Guardian and the NSW Trustee filed submitting appearances. They may have taken a different course had this ground been identified in the summons.

10. [73]

    I do not accept the plaintiff’s submission that the Tribunal failed to give effect to the principles in s 4 of the Guardianship Act. It is clear that the Tribunal did consider F’s views.

11. [74]

    The third and fourth questions raise the same issue concerning s 15(3) of the Guardianship Act. I did not understand the plaintiff to dispute that there were grounds upon which the Tribunal could have been satisfied that F suffered a disability that meant she was partially incapable of managing her person, and hence was a “person in need of a guardian” within the meaning of s 14(1) of the Guardianship Act. Rather, the complaint was that the plaintiff had demonstrated that she and her family were capable of caring for F and therefore the plaintiff should have been appointed as a guardian if any appointment were to be made, instead of the Public Guardian. Section 15(3) precludes the appointment of the Public Guardian as guardian if some other person could be appointed as guardian.

12. [75]

    The Tribunal recognised the constraint imposed by s 15(3). It noted that there was no proposal that a private person be appointed as guardian. It was satisfied that family members would not be able and willing to exercise the functions of a guardian that it proposed be conferred on the guardian, namely, making decisions about access and services. There was ample evidence before the Tribunal that relations between J and her siblings and their families had broken down to such an extent that J and L could not be relied upon to make decisions concerning access to F by F’s children, W, M and I, and their families. The Tribunal noted that M and J had strong differences of opinion and took that into account in deciding that a guardianship order was needed so that a “recognised decision-maker” could make decisions about to whom F could have access and the conditions of such access and to make decisions about the services that she was to receive. It noted that the current decision-making in those areas was unworkable. The statements of W, M and I, and other statements including the statement by F’s sister-in-law, C, supported that conclusion. The fact that J and L disputed the truth of what was asserted against them is neither here nor there. The Tribunal was not bound to accept their denials. The Tribunal noted the evidence of J and L that they had never prevented F’s other children from visiting or contacting F, but it is clear that the Tribunal did not accept that evidence. The Tribunal concluded that F was aware that J and L supported her remaining in a family home and had been told that her other children felt that she would be better cared for in a nursing home or aged care facility. There is no doubt about that. The Tribunal concluded that as a result of her disability this might impact F’s belief that she could speak freely. That is a rational inference given the antipathy between J and L on the one hand and J’s siblings on the other. In my view the Tribunal’s reasons for appointing the Public Guardian as F’s guardian were adequate and it did not fail to apply s 15(3) of the Guardianship Act.

13. [76]

    Questions 5 and 6 noted at [9] above raise the question as to whether there was any evidence or probative material capable of supporting the Tribunal’s conclusion that F lacked capacity to manage her own affairs. The plaintiff’s complaint is essentially that there was no medical evidence to that effect. This question goes to whether the Tribunal ought to have made the financial management order. Question 8 is a reformulation of the same issue invoking a ground of Wednesbury unreasonableness. The Tribunal was not bound by the rules of evidence. But if there was no evidence or probative material capable of supporting its conclusion the Tribunal would have erred in law. Whether it did so is a question of law (Ormwave Pty Ltd v Smith [2007] NSWCA 210 at [12]-[15]).

14. [77]

    The plaintiff noted that there is a presumption that a person of full age is capable of managing his or her affairs (Murphy v Doman at [36]).

15. [78]

    The plaintiff submitted that the Tribunal could not reach its conclusion that F did not have capacity to manage her affairs without psychiatric or other medical evidence. She cited IA v TA [2016] NSWCA 179 where the Court of Appeal concluded that the primary judge in that case was not free to make an order under s 41 of the NSW Trustee and Guardian Act 2009 (NSW) or to refuse to make an order under s 86 of that Act without psychiatric evidence (at [69]). Section 41 of the NSW Trustee and Guardian Act authorises the Supreme Court to declare that a person is incapable of managing his or her affairs and to order that the person’s estate be subject to management under that Act if satisfied that the person is incapable of managing his or her affairs. The issue under s 41(1) is the same as the issue arising under s 25G(a) of the Guardianship Act. (See also P v NSW Trustee and Guardian [2015] NSWSC 579 at [45], [230].) However, the Court of Appeal did not say that in all cases medical opinion will be required before a conclusion as to a person’s capacity or incapacity to manage his or her affairs can be arrived at. In that case psychiatric evidence had been given on both sides. The Court of Appeal said that the considered opinions of a long-term treating psychiatrist of a person whose capacity for self-management was under consideration should usually assume considerable importance (at [70]). It found that the primary judge was in error in refusing the applicant the opportunity to supplement a psychiatrist’s evidence with oral evidence.

16. [79]

    The Court of Appeal’s conclusion was that the primary judge erred in his finding of fact. The present question is whether there was no evidence or no probative material capable of supporting the Tribunal’s conclusion that F lacked capacity to manage her own affairs.

17. [80]

    The Court of Appeal agreed with Lindsay J’s statement in H v H [2015] NSWSC 837 at [37] that:

18. [81]

    In the present case, unlike IA v TA, Dr Harvey did not express an opinion as to F’s capacity to manage her affairs. In reaching a conclusion that F lacked capacity to manage her affairs, the Tribunal relied in part on evidence given by Ms Kwan that F appeared confused when discussing her financial affairs and on the Tribunal’s own assessment of her. It noted that her financial affairs had been managed for her by L and J and formerly by M and W. It referred to how F’s children had managed her accounts in the past and noted that at least three of her children had been able to operate her bank accounts. It was not satisfied that F understood what her assets were or the impact of the sale of the Eagle Vale property. In that respect F was asked on 7 March 2016 what was happening with her house at Eagle Vale. She said through an interpreter “I sold it. Yes. Going to sell.” From this answer the Tribunal could reasonably conclude that F did not know whether the property had been sold or whether there was a proposal for it to be sold. In response to the question “Do you want to sell it?” F said she had given it to an agency to sell. In fact, the contracts had been exchanged two and a half weeks earlier. She said that with the money from the sale of her house she would have to buy another one, but then immediately cut the interview short by saying she had to go. She expressed no awareness of the proposal that the proceeds of sale would be used to enable J’s family to buy a property in their name in which J’s family and F would live, and that F would be asked to borrow the shortfall to complete a purchase.

19. [82]

    In my view this was evidence that was capable of supporting the finding that F lacked capacity to manage her own affairs.

20. [83]

    No question of law was raised by the question whether the Tribunal erred in exercising its discretion to appoint the NSW Trustee and Guardian as F’s financial manager. In any event, that decision was plainly open to the Tribunal. No other person was identified as an appropriate financial manager other than J or L whom the Tribunal concluded would not be fit persons to be F’s financial manager because of their lack of appreciation of a conflict between their duty and interest.

21. [84]

    For these reasons, I do not accept that the Tribunal’s orders, other than order 5(b) of the guardianship orders, should be set aside by reason of any question of law raised on the appeal.

Application for Leave to Appeal

1. [85]

   In the alternative the plaintiff sought leave to appeal. Prior to the commencement of the Civil and Administrative Tribunal Act an appeal lay to the Supreme Court under s 67 of the Guardianship Act on a question of law or otherwise with leave. In K v K [2000] NSWSC 1052 Young J said:

2. [86]

   In EB v Guardianship Tribunal [2011] NSWSC 767 Hallen AsJ (as his Honour then was) said:

3. [87]

   Underlying these constraints was the recognition that Parliament had entrusted to the Guardianship Tribunal the primary function of making the factual determinations required for a guardianship order, and that the Court should not grant leave to appeal unless the Tribunal had gone about its fact-finding process in a way which was so unorthodox as to be likely to produce an unfair result. It was not enough that a judge might consider that he or she would have reached a different conclusion on the facts from the conclusion reached by the Tribunal (SAB v SEM & Ors [2013] NSWSC 253 at [8]-[9]).

4. [88]

   The plaintiff submitted that such constraints as formerly applied to applications for leave to appeal brought under the former s 67 of the Guardianship Act were not applicable to applications for leave to appeal under cl 14(1)(b) of Sch 6 to the Civil and Administrative Tribunal Act. In support of this submission counsel for the plaintiff referred to observations of Lindsay J in P v NSW Trustee and Guardian. His Honour noted that cl 14 of Sch 6 distinguishes between interlocutory decisions, ancillary decisions and other kinds of decision. “Interlocutory decision” and “ancillary decision” are defined in s 4(1) of the Civil and Administrative Tribunal Act. Lindsay J accepted as applicable to an application for leave to appeal to the Supreme Court under cl 14(1)(b) the general principles identified by Wright J, sitting as President of the NSW Civil and Administrative Tribunal (“NCAT”) in Collins v Urban [2014] NSWCATAP 17 at [84] subject to a number of qualifications. Wright J was describing the principles to be applied by the Appeal Panel in deciding whether to grant leave to appeal under s 80(2) of the Civil and Administrative Tribunal Act. His Honour said:

5. [89]

   In P v NSW Trustee and Guardian Lindsay J accepted those principles as being generally applicable to applications for leave to appeal to the Supreme Court under cl 14 of Sch 6, subject to the following qualifications:

6. [90]

   Absent from the qualifications indicated by Lindsay J was any constraint arising from the recognition that Parliament intended the Tribunal to be given the primary function of dealing with applications under the Guardianship Act. In my view that recognition remains a relevant consideration in the approach to applications for the grant of leave under cl 14(1)(b). There was no relevant substantive change to the rights of appeal when NCAT replaced the Guardianship Tribunal.

7. [91]

   No question of principle of general importance is raised in the present application. Nor am I satisfied that there was a clear error in fact-finding that it would be unjust not to correct. I do not consider that leave to appeal should be given. I am reinforced in that conclusion by the fact that the guardianship order is in any event now up for review (see [2] above) and that F herself does not seek to set aside the Tribunal’s orders. Moreover, if F contends that she has capacity to manage her affairs, it remains open to her to apply to the Tribunal for a revocation of the financial management order under s 25R of the Guardianship Act. On such an application it would be open to her to adduce evidence from medical practitioners such as Dr Harvey, which the plaintiff says would support a finding of capacity, which evidence was not led before the Tribunal.

Conclusions

1. [92]

   For these reasons I order that order 5(b) of the guardianship order made by the NSW Civil and Administrative Tribunal on 31 March 2016 be set aside and the summons otherwise be dismissed.

2. [93]

   I will hear the parties on costs.