C v W

[2015] NSWSC 1774

Supreme Court

New South Wales

Medium Neutral Citation:	C v W [2015] NSWSC 1774
Hearing dates:	20 October 2015
Date of orders:	27 November 2015
Decision date:	27 November 2015
Jurisdiction:	Equity - Protective List
Before:	Lindsay J
Decision:	(1) Order that the plaintiff’s appeal to the Court from the Guardianship Division of NCAT be dismissed.  (2) Reserve all questions of costs.
Catchwords:	APPEALS – Appeal to Court from Guardianship Division of NSW Civil and Administrative Tribunal – Appeal from dismissal of application for financial management order - Construction and operation of Civil and Administrative Tribunal Act 2013 NSW, Schedule 6, clause 14 – Appeal limited to questions of law - Appeal dismissed PRACTICE – Guardianship and Protected Estate Management Appeal to Court from dismissal of application for financial management order - Civil and Administrative Tribunal Act 2013 NSW, Schedule 6, clause 14
Legislation Cited:	Civil and Administrative Tribunal Act 2013 Guardianship Act 1987 NSW NSW Trustee and Guardian Act 2009 NSW s71(1) Powers of Attorney Act 2003 NSW
Cases Cited:	Ability One Financial Management Pty Ltd and Another v JB by his tutor AB [2014] NSWSC 245 at [35](h)-(i) and [143]-[175]) Azzopardi v Tasman EUB Industries Ltd (1985) 4 NSWLR 139 at 156-157 BKE v Office of Children’s Guardian (2015) NSWSC 523 at [35] Botany Bay Instrumentation & Control Pty Ltd v Stewart [1984[ 3 NSWLR 98 at 100B-101B and 101E-G CJ v AKJ [2015] NSWSC 498 at [30]-[42] Clay v Clay (2001) 202 CLR 410 at 428[37]-430[40] and 432[46]-433[49]) Collector of Customs v Agfa-Gevaert (1996) 186 CLR 389 at 395 Collins v Urban [2014] NSWCATAP 17[82]-[84], Countess of Bective v Federal Commissioner of Taxation (1932) 47 CLR 417 at 420-423 EB & Ors v Guardianship Tribunal & Ors [2011] NSWSC 767 at [181]-[189) Escobar v Spindaleri (1986) 7 NSWLR 51 at 57C, 59A-B and 60G Ex parte Currie; re Dempsey (1969) 70 SR (NSW) 443 at 447; 91 WN (NSW) 34 at 38 Gerlach v Clifton Bricks Pty Limited (2002) 209 CLR 478 at 482[4] - 484[8] and 497[49]-[51] H v H [2015] NSWSC 837 at [27]-[36] Haynes v Leves (1987) 8 NSWLR 442, 469 at 470 Holmwood Holdings Pty Limited v Halkat Electrical Contractors Pty Limited [2005] NSWSC 1129 at [36), [41]-[43] and [51] House v The King (1936) 55 CLR 499 at 504-505 In Ex parte Whitbread in the Matter of Hinde, a Lunatic (1816) 2 Mer 99 at 101-103; 35 ER 878 at 879 J v Lieschke (1987) 162 CLR 447 at 456-457 John Fairfax & Sons Limited v Police Tribunal of New South Wales (1986) 5 NSWLR 465 at 476 Kirk v Industrial Court of NSW (2010) 239 CLR 531 at 573[71]-574[73] Knaggs v Solicitors’ Statutory Committee [No. 2] (1992) 27 NSWLR 603 at 610-612 Kostas v HIA Insurance Services Pty Limited (2010) 241 CLR 390 at 418 [89]-[91] Lloyd v Veterinary Surgeons Investigating Committee (2005) 65 NSWLR 245 at 257[61] Lo v Chief Commissioner of State Revenue (2013) 85 NSWLR 86 at 89 [10] and 97 [49]-[50] M v M [2013] NSWSC 1495 at [50] (f) Marion’s Case (1992) 175 CLR 218 at 258 Minister for Immigration and Border Protection v WZARH [2015] HCA 40 at [30] Oslo and Osland v Secretary Department of Justice (2010) 241 CLR 320 at 351 [71] P v NSW Trustee and Guardian [2015] NSWSC 579 at [191] P v NSW Trustee and Guardian [2015] NSWSC 579 at [227)-[319] Palmer v Clarke (1989) 19 NSWLR 158 at 166E-167C Prendergast v Western Murray Irrigation Limited [2014] NSWCATAP 69 at [11]-[13] Re R [2000] NSWSC 886 at [24]-[25] Re W and L (Parameters of Protected Estate Management Orders) [2014] NSWSC 1106 at [90]-[94] Re-Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at 14 Roy Morgan Research Centre Pty Limited v Commissioner of State Revenue (VIC) ( 2001) 207 CLR 72 at 79-80 [15] SAB v SEM & Ors [2013] NSWSC 253 at [4]-[7] Secretary, Department of Health and Community Services v JWB and SMB (Marion’s Case) (1992) 175 CLR 218 at 258-259 The Australian Gas Light Co v The Valuer-General (1940) SR (NSW) 126 at 137 Wellesley v Duke of Beaufort (1827) 2 Russ 1 at 20; 38 ER 236 at 243)
Texts Cited:	HS Theobald, The Law Relating to Lunacy (Stevens and Sons, London, 1924), pages 380 and 382
Category:	Principal judgment
Parties:	Plaintiff: The daughter of the fourth defendant First Defendant: A son of the fourth defendant Second Defendant: A son of the fourth defendant Third Defendant: A son of the fourth defendant Fourth Defendant: An incapable person
Representation:	Counsel: Plaintiff: M Evans First, Second and Third Defendants: P O’Loughlin   Solicitors: Plaintiff: ELG Legal First, Second and Third Defendants: Bowring Macaulay & Barrett
File Number(s):	2014/00372807

Judgment

INTRODUCTION

1. The plaintiff (the daughter, and one of four adult children, of the fourth defendant) appeals, by a summons filed on 19 December 2014, from an order made by the Guardianship Division of the Civil and Administrative Tribunal of NSW (“NCAT”) on 14 October 2014.

2. The order under appeal dismissed an application made by the plaintiff to the Tribunal on 24 April 2014 for the appointment (pursuant to the Guardianship Act 1987 NSW, section 25I) of the NSW Trustee as a financial manager for her mother.

3. The respondents to the appeal, apart from the fourth defendant, are the plaintiff’s siblings (the three sons of the fourth defendant), the first, second and third defendants.

4. The fourth defendant was born in 1925 and is now aged 90 years. Her former husband, the father of her four children, died in January 2012, unleashing family tensions affecting the person and property of the fourth defendant in the proceedings before the Tribunal.

5. It is common ground that the fourth defendant suffers from dementia and, as the Tribunal found, is incapable of managing her own person or property.

6. The plaintiff’s application to NCAT for a financial management order was accompanied by an application (made by her pursuant to the Guardianship Act 1987, section 9) for an order that she, the plaintiff, be appointed guardian of the fourth defendant.

7. That application for a guardianship order was dismissed by the Tribunal at the same time as the application for a financial management order was dismissed, following a final hearing of both applications conducted by the Tribunal on 14 October 2014.

8. The reasons for decision subsequently published by the Tribunal (on or about 25 November 2014) deal with both the Tribunal’s dismissal of the plaintiff’s application for a financial management order and its dismissal of her application for a guardianship order.

9. By her summons as filed, the plaintiff appealed to the Court from both dismissal orders. However, during the course of the final hearing of the summons, she abandoned her appeal against dismissal of her application for a guardianship order. The fourth defendant is now living in a nursing home, not with the first defendant as was the case at the time of the final hearing before the Tribunal.

10. A significant reason for NCAT’s dismissal of the plaintiff’s applications was that, on 7 April 2009 and again on 10 December 2012, the fourth defendant had executed in favour of one or more of her sons:

1. an instrument (under the Guardianship Act, Part 2, sections 5-6O) appointing an enduring guardian; and

2. an instrument (under the Powers of Attorney Act 2003 NSW, Part 4, sections 17-25) bearing the character of an enduring power of attorney.

11. As grants of an “enduring” character, those instruments conferred upon the fourth defendant’s sons authority to manage her person and property (respectively) notwithstanding her loss of capacity for self-management.

12. Save insofar as a guardianship order suspends the authority of an enduring guardian (expressly, by operation of section 6I of the Guardianship Act) and a financial management order suspends the authority of an attorney appointed under an enduring power of attorney (implicitly, by operation of sections 25E, 25G, 25H and 25M of the Guardianship Act and section 71(1) of the NSW Trustee and Guardian Act 2009 NSW), and the plaintiff had applied for each type of order, the validity of the instruments executed by the fourth defendant in favour of her sons was not challenged, either in the Tribunal or in the Court.

13. In particular, the Tribunal noted in its reasons for dismissal of the plaintiff’s applications, there was before the Tribunal:

1. no application (under section 6J of the Guardianship Act) for the fourth defendant’s appointments of an enduring guardian to be reviewed, and no prima facie evidence suggesting that the appointments should be reviewed; and

2. no application (under sections 36-37 of the Powers of Attorney Act 2003) for the making or operation of the enduring powers of attorney granted by the fourth defendant to be reviewed, and no prima facie evidence in support of such an application.

14. Having heard evidence from each of the plaintiff and her three brothers, and having entertained submissions from solicitors respectively granted leave (pursuant to section 45 of the Civil and Administrative Tribunal Act 2013) to represent them in the Tribunal, the Tribunal was not satisfied that the fourth defendant was in need of a guardianship order or a financial management order. It was, on the contrary, affirmatively satisfied that the fourth defendant’s person and property were appropriately under the management of her sons acting as her enduring guardians and attorneys.

A FAMILY FEUD PROVIDES CONTEXT

15. The Tribunal’s reasons for decision manifest a concern that the plaintiff’s applications were, at least in part, driven by “an ongoing and simmering dispute between family members” (to use the plaintiff’s own description) arising out of the death of the fourth defendant’s former husband.

16. It is not necessary or desirable to elaborate details, or the history, of that dispute beyond noting elements that define its character.

17. First, for many years the fourth defendant resided with the plaintiff, in a separate flat, in a house in suburban Sydney in which they both had an interest as co-owners.

18. Secondly, by two separate conveyancing transactions, the latter of which occurred in April 2012, a few months after the death of the fourth defendant’s former husband, the tenancy in common in which the residence had been co-owned was converted into a joint tenancy and the property was transferred into the name of the plaintiff alone for a nominal consideration.

19. Thirdly, discovery of those transactions by the plaintiff’s brothers led to: (a) the boys assuming management of the fourth defendant’s finances in December 2012; (b) the fourth defendant moving to the home of the first defendant en route, reluctantly, to nursing home accommodation; and (c) an agreement for a family settlement, not finally documented at the time of the final hearing before the Tribunal, in which the plaintiff had agreed to make a restitutionary payment of $400,000 to her mother.

20. Fourthly, the plaintiff’s applications to the Tribunal were not unrelated to negotiations for the plaintiff to pay that sum: she refusing to accept a receipt from her brothers as her mother’s attorneys as a discharge of any obligation upon her to pay the money and, pending negotiations about how to deal with the sum to be paid, taking the benefit of the absence of an agreement to pay interest upon the agreed sum.

21. On the hearing of the plaintiff’s appeal, the Court was informed by both sides of the record that, following upon dismissal of the plaintiff’s applications to the Tribunal, the $400,000 was paid by the plaintiff and (as to $350,000) used by the boys to fund the fourth defendant’s entry into the nursing home where she currently resides.

PARAMETERS OF THE APPEAL

22. The plaintiff’s appeal to the Court from the Tribunal’s order for dismissal of her application for a financial management order was made under clauses 12 and 14 of Schedule 6 to the Civil and Administrative Tribunal Act: see, generally, P v NSW Trustee and Guardian [2015] NSWSC 579.

23. By virtue of clause 14(1)(b), the plaintiff has an entitlement to appeal (from dismissal of her application) characterised as an “appeal… as of right on any question of law, or with the leave of the court, on any other grounds.”

24. In the absence of an application for leave to appeal on a broader ground, the plaintiff’s application was confined to “questions of law”.

25. On the hearing of the appeal, the plaintiff expressly disclaimed: (a) an application for leave under clause 14(1); (b) an application for administrative law relief available on an application for judicial review (implicitly recognised by the Civil and Administrative Tribunal Act, sections 5(2)(b) and section 34); and (c) an application for relief under the Court’s parens patriae jurisdiction (the nature of which is, classically, described by the High Court of Australia in Secretary, Department of Health and Community Services v JWB and SMB (Marion’s Case) (1992) 175 CLR 218 at 258-259).

26. The plaintiff relies upon two grounds of appeal, both alleging that the Tribunal erred in law.

27. In some circumstances, an error of law may be treated as synonymous with a matter that can be raised in an appeal on a question of law: BKE v Office of Children’s Guardian [2015] NSWSC 523 at [35], citing Roy Morgan Research Centre Pty Limited v Commissioner of State Revenue (Vic) (2001) 207 CLR 72 at 79-80 [15]; Osland v Secretary, Department of Justice (2010) 241 CLR 320 at 351 [71]; Kostas v HIA Insurance Services Pty Limited (2010) 241 CLR 390 at 418 [89]-[91]; and Lo v Chief Commissioner of State Revenue (2013) 85 NSWLR 86 at 89 [10] and 97 [49]-[50].

28. That is not to say that an appeal available for error of law is in all cases synonymous with an appeal on a question of law. The two expressions are conceptually distinct; but demonstration that a decision is affected by an error of law is sufficient to sustain an appeal on a question of law: EB & Ors v Guardianship Tribunal & Ors [2011] NSWSC 767 at [181]-[189]; SAB v SEM & Ors [2013] NSWSC 253 at [4]-[7].

29. Section 67 of the Guardianship Act (now repealed), which provided for an appeal to the Court from the Guardianship Tribunal (the predecessor of the Guardianship Division of NCAT) provided for an appeal as of right, on a question of law, or by leave of the Court, on any other question. Otherwise, the Guardianship Act was silent as to the conduct of an appeal: EB & Ors v Guardianship Tribunal & Ors [2011] NSWSC 767 at [183]. An appeal under section 67 was unattended by remedial provisions akin to sections 5(2), 34 and 53(3)-(4) of the Civil and Administrative Tribunal Act or the procedural flexibility for which clause 14 of Schedule 6 to the Act provides.

30. Section 5(2) is to the effect that a decision of the Tribunal that purports to be made under enabling legislation or the Civil and Administrative Tribunal Act is taken to be a decision under that legislation or the Act (as the case may be) even if the decision was beyond the power of the decision-maker to make.

31. Section 34 provides, inter alia, that the Court can, but is not required, to refuse to conduct a judicial review of a decision of the Tribunal “if an internal appeal [to an Appeal Panel of the Tribunal] or an appeal to a court could be, or has been, lodged against the decision”.

32. Sections 53(3)-(4) provide that if a provision of the Civil and Administrative Tribunal Act, or “procedural rules” is not complied with in relation to the commencement or conduct of proceedings, the failure to comply is to be treated as an irregularity and does not nullify the proceedings or any decision in the proceedings unless the Tribunal otherwise determines; and the Tribunal may, in dealing with any such irregularity, wholly or partly set aside the proceedings or a decision in the proceedings.

33. Nuances in legislative formulae governing statutory appeals filtered, inter alia, by an implicit reference to the distinction between “law” and “fact” can be important: eg, Attorney-General (NSW) v X (2000) 49 NSWLR 653 at 660[25]-664[44].

34. The nature of a statutory appeal depends critically on the language of the particular statute governing the appeal: Kostas v HIA Insurance Services Pty Limited (2010) 241 CLR 390 at 418[89]. The nature and breadth of the provisions of the Civil and Administrative Tribunal Act governing the present appeal (including sections 5(2), 34 and 53(3)-(4) and Schedule 6, clauses 12 and 14), in practice are likely to render a sharp distinction between the concepts of “a question of law” and “an error of law” less significant than might otherwise be the case.

35. This is especially so in the context of an exercise of protective jurisdiction by the Supreme Court: where, as an incident of the Court’s jurisdiction, it is bound to cast a weather eye over the welfare and interests of a person in need of protection, and, in the interests of that person, to keep a tight rein over case management.

36. What is meant by the expression “a question of law” cannot be stated exhaustively; but, by sidelining the question whether a defective decision is void or voidable, sections 5(2), 34 and 53(3)-(4) allow the grounds upon which a decision may be attacked to become the focus of attention within the framework of an appeal procedure that facilitates a constructive outcome tailored to the needs of the particular case, not constrained by an all or nothing remedial response.

37. Taken together, sections 5(2), 34 and 53(3)-(4) have the effect of integrating the decision-making processes of NCAT with those of the Court’s hierarchy of appeals, subject to procedural filters built-in to “rights” of appeal, designed to ensure that the jurisdiction of the Court is generally able to be invoked only in cases involving questions of principle, leaving the determination of routine cases, and ordinary factual disputes, to the Tribunal established by Parliament for that purpose.

38. If the Court finds that a decision of the Tribunal is affected by jurisdictional error (drawing upon learning such as that summarised in Kirk v Industrial Court of NSW (2010) 239 CLR 531 at 573[71]-574[73]), section 34 implicitly accepts that the Court can grant administrative law remedies on an application for judicial review.

39. Historically, under the general law a grant of prerogative relief (via a writ of prohibition, mandamus or certiorari) at common law, a grant of an equitable remedy (principally, an injunction) or a grant of declaratory relief depended upon an exercise of the Court’s discretion. The discretionary character of administrative law remedies remains a feature of the general law, modified by legislative provisions found in the Supreme Court Act 1970 NSW, sections 65, 66, 69 and 75.

40. The Civil and Administrative Tribunal Act does not oust the jurisdiction of the Court to grant administrative law remedies, but confers rights of appeal that enable the Court to supervise the work of NCAT by focusing principally upon questions of principle. The primary way this is done is by the grant of an appeal “as of right” limited to a “question of law”, absent a grant of “leave” by the Court for an appeal on any other ground: Schedule 6, clause 14(1)(b).

41. Through the medium of the leave mechanism the Court controls whether, and on what terms, it engages disputes about the factual content of a case. A grant of leave to allow a merits review of a Tribunal decision does not depend upon there first being an appeal on a question of law: Lloyd v Veterinary Surgeons Investigating Committee (2005) 65 NSWLR 245 at 257[61].

42. In the context of an appeal from a decision of the Guardianship Division of NCAT to refuse to make a financial management order under the Guardianship Act, clause 14 of Schedule 6 to the Civil and Administrative Tribunal Act, and the general law relating to appellate interference with discretionary decisions, provide three interrelated and overlapping gateways through which an appellant who challenges the NCAT decision may have to navigate.

22. First, absent a grant of leave, an appeal under clause 14(1)(b) is limited to an appeal “on a question of law”. What is meant by the expression “a question of law” in this context may be conveniently explained by:

1. seminal observations made by Young J in Re R [2000] NSWSC 886 at [24]-[25] in the context of an appeal on a question of law, under section 67 of the Guardianship Act, from the Guardianship Tribunal; and

2. a more recent collaboration of the law, to much the same effect, by an Appeal Panel of NCAT (constituted by R Seiden SC and D Goldstein) in Prendergast v Western Murray Irrigation Limited [2014] NSWCATAP 69 at [11]-[13] in the context of an “internal appeal” for which section 80(2) of the Civil and Administrative Tribunal Act provides in terms similar to those found in Schedule 6 clause 14(1) of the Act.

44. Secondly, if leave is to be granted pursuant to clause 14(1)(b) for an appeal on a ground other than a question of law, the Court generally needs to be satisfied that there is a question of principle or policy, or a manifest error in the decision or decision-making process under review, which merits a grant of leave: Collins v Urban [2014] NSWCATAP 17 at [82]-[84], qualified, in cases involving an exercise of the Court’s protective jurisdiction, by observations made in P v NSW Trustee and Guardian [2015] NSWSC 579 at [191].

45. Thirdly, given the broad evaluative or discretionary content of a decision to make, or to decline to make, a financial management order, appellate interference with such a decision will generally require identification of an error of principle or the like: House v The King (1936) 55 CLR 499 at 504-505.

46. The terms in which these distinct gateways to appellate review are expressed should not be overlooked. They all point in the direction of requiring identification of some error beyond a mere error of fact.

47. In the current proceedings, because the plaintiff’s appeal is limited to questions of law, no application for leave to appeal on another ground is made, and I conclude that the Tribunal’s decision is not affected by any error of law, it is not necessary to do more than focus attention on what is meant by the expression “a question of law”.

48. Useful guidance may still be had from Re R [2000] NSWSC 886 at [24]-[25], where Young J wrote as follows:

“[24]   The appeal is an appeal on a question of law only. It is sometimes quite difficult to separate out what are matters of fact and what are matters of law. In dealing with an appeal from a Tribunal of this nature, as is said in Wade and Forsyth, Administrative Law (Oxford University Press, 1994) 7th Edition at page 945:

‘It is of great importance that it [the right of appeal on a point of law] should be generally available, so that the courts may give guidance on the proper interpretation of the law and so that there may not be inconsistent rulings by tribunals in different localities. It is through appeals that the courts and the tribunals are kept in touch, so that the tribunals are integrated into the machinery of justice.’

This is the prime reason why there is an appeal as of right.

[25]   Just what is in the category of a question of law is sometimes hard to decide. However, generally speaking the matter is quite clear. If there is a question as to the meaning of an Act in the circumstances, if there are other questions of construction of the law or vital agreements, if there is a finding of fact made of which there is no evidence to support it or perhaps if so much irrelevant material enters into the decision making process that it is a nullity, then one has a question of law. Outside that field, normally one has a question of fact. This is so even if there is a finding of fact which is against the evidence and the weight of the evidence: Haynes v Leves (1987) 8 NSWLR 442, 469 at 470. This is an oversimplification, but, generally speaking, is the way in which the distinction operates.”

49. In Prendergast v Western Murray Irrigation Limited [2014] NSWCATAP 69 at [13] an Appeal Panel of NCAT, in effect, elaborated these observations in the following terms (with formal editorial additions):

“13.   Without expressing exhaustively possible questions of law, they include in no particular order:

(1) Whether there has been a failure to provide proper reasons: Stoker v Adecco Gemuale Constructions Pty Ltd [2004] NSWCA 449 per Santow JA at [41];Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 at 444 per Meagher JA; Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 at [56] per McColl JA (Ipp JA and Bryson AJA agreeing); Qushair v Raffoul [2009] NSWCA 329 at [52] and the following paragraphs, per Sackville AJA (Campbell JA and Bergin CJ in Eq agreeing). Section 62 of the [Civil and Administrative Tribunal] Act requires the Tribunal to furnish reasons. This requirement was earlier reflected in s 49 of the Consumer, Trader and Tenancy Tribunal Act 2001 (NSW). Recently, the Appeal Panel (Wright J, President; G Walker, Senior Member; and M Bolt, General Member) in Director General, Department of Finance & Services v Porter [2014] NSWCATAP 6 said in relation to the similar provision in s 89 of the Administrative Decisions Tribunal Act 1997 (NSW) at [32]:

32 Notwithstanding the words in the chapeau to subs (5), there is no reason as a matter of principle why the requirements set out in that subsection do not apply equally to reasons for decision which were not given as a result of a request under subs (3). Further, given the right of appeal from a decision of the ADT to the Appeal Panel under s 113 of the ADT Act and from the Appeal Panel to the Supreme Court on a question of law under s 119 of that Act, the Tribunal's obligation to give reasons should be commensurate with that of courts whose decisions are subject to appeal to the Supreme Court - see generally the discussion of principles in Campbelltown City Council v Vegan (2006) 67 NSWLR 372. As this matter was not the subject of any substantial submissions by the parties, however, it is inappropriate to deal with the topic in more detail and it can be accepted for the purposes of this appeal that the Tribunal was obliged to give proper reasons for its decision. Such reasons would include making findings on material questions of fact, referring to the evidence on which those findings were based, setting out the Tribunal's understanding of the applicable law and explaining the reasoning processes that lead the Tribunal to the conclusions it made. In assessing such reasons, however, it is appropriate to bear in mind the High Court's endorsement of the view that in the case of administrative decision makers this assessment is not best approached with an "eye keenly attuned to the perception of error": see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.

(2) Whether the Tribunal identified the wrong issue or asked the wrong question: Craig v State of South Australia (1995) 184 CLR 163 at 179; Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [82].

(3) Whether a wrong principle of law had been applied: Chapman v Taylor [2004] NSWCA 456 at [33], per Hodgson JA (Beazley and Tobias JJA agreeing).

(4) Whether there was a failure to afford procedural fairness: Italiano v Carbone [2005] NSWCA 177; Clements v Independent Indigenous Advisory Committee[2003] FCAFC 143 at [8]. Section 38 of the [Civil and Administrative Tribunal] Act prescribes the procedure of the Tribunal generally. Relevantly, s 38(2) expressly requires the Tribunal's procedures to accord with natural justice. Sub-sections 5 and 6 also embody aspects of procedural fairness. These rules were previously reflected in s 28 of the Consumer, Trader and Tenancy Tribunal Act (NSW). Procedural fairness concerns the fairness of the proceedings and not the decision: Aronson, Dyer and Groves, Judicial Review of Administrative Action, 4th Ed; (2009) Lawbook Co at [7.20].

(5) Whether the Tribunal failed to take into account relevant (i.e., mandatory) considerations: Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24. This was recently the subject of consideration by the Appeal Panel in Director General, Department of Finance & Services v Porter [2014] NSWCATAP 6. It was said at [26] to [29] as follows:

26 Failure to take into account a relevant consideration which the decision maker was bound to take into account is an error of law (Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1985-6) 162 CLR 24 at 39 per Mason J).

27 Determining what is to be taken into account when making a decision is a matter of construction of the statute conferring power. Where the relevant matters are not expressly set out those matters are determined by implication from the subject matter, scope and purpose of the conferring statute: see Minister for Aboriginal Affairs v Peko-Wallsend Ltd at 39-40 per Mason J. What weight the Tribunal should give to those considerations is, however, generally a matter for the Tribunal (at 41 per Mason J).

28 Whilst the question of weight is one for the Tribunal, the Tribunal will not have given adequate attention to a relevant consideration where its process is merely a formulaic reference: see Azriel v NSW Land & Housing Corporation [2006] NSWCA 372 at [49] per Basten JA (with Santow and Ipp JJA agreeing). Instead what is required can be described as a proper, genuine and realistic consideration of the relevant consideration: Bruce v Cole (1998) 45 NSWLR 163 at 185-6 per Spigelman CJ. However, as Basten JA warned in Azriel at [51] referring to Spigelman CJ in Bruce at 186, assessing whether the decision-maker has given a proper, genuine and realistic consideration to a mandatory matter must be approached with caution, with care to avoid an impermissible reconsideration of the merits of the decision.

29 In assessing a purported failure to take into account a relevant consideration a mere failure to refer expressly to a matter will not necessarily justify an inference that there has been a failure to take into account a relevant consideration. Despite this, such an inference is still open to be drawn by the Tribunal in those circumstances: see Australian Conservation Foundation v Forestry Commission (1988) 19 FCR 127 at 132 per Burchett J. In determining whether or not to draw the inference that failure to deal at all or in detail with a relevant consideration gives rise to an error by the decision-maker, the extent to which the facts and circumstances of the particular matter engage that consideration will be relevant and often determinative. Further, in the context of an appeal from a decision of an administrative review tribunal, such as this appeal, the nature and scope of the submissions put to the tribunal at first instance may also inform that process of determination.

(6) Whether the Tribunal took into account an irrelevant consideration, as explained in Peko-Wallsend per Mason J at 40:

In the context of judicial review on the ground of taking into account irrelevant considerations, this Court has held that, where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject-matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard ...

(7) Whether there was no evidence to support a finding of fact: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321at 355-6; The Australian Gas Light Company v Valuer-General (1940) 40 SR (NSW) 126 at 138.

(8) Whether the decision is so unreasonable that no reasonable decision-maker would make it: Associated Provincial Picture Houses Ltd v Wednesday Corp(1947) 45 LGR 635; Lo v Chief Commissioner of State Revenue (2013) 85 NSWLR 86 at [10]; Minister for Immigration and Citizenship v Li (2013) 249 CLR 332.”

50. For completeness, I note that identification of construction of a statute as the subject-matter of a question of law not uncommonly attracts a reference to The Australian Gas Light Co v The Valuer-General (1940) SR (NSW) 126 at 137 and Collector of Customs v Agfa-Gevaert (1996) 186 CLR 389 at 395. Discussions of errors of law made in the course of a fact-finding process not uncommonly refer to Azzopardi v Tasman EUB Industries Ltd (1985) 4 NSWLR 139 at 156-157.

51. In dealing with an appeal from the Tribunal under clause 14 of Schedule 6, the Court must remain mindful of the different analytical perspectives that need to be taken of each decision under appeal, mindful of the procedural flexibility clause 14 allows, insistent upon precision in definition of an appellant’s case, and careful to ensure that the welfare and interests of a person in need of protection are afforded paramountcy at each stage of the proceedings: P v NSW Trustee and Guardian [2015] NSWSC 579 at [147]-[149], [168]-[172] and [190]-[198].

52. The plaintiff’s appeal is articulated in a form that identifies alleged “errors of law” which, if established as a matter of substance, would justify an appeal “on a question of law”.

53. However, on closer examination of the decision of the Tribunal under appeal, and the process leading to the making of that decision, I am satisfied that the decision is not affected by any error of law. Within the framework within which the decision was to be made, the plaintiff was not denied an opportunity to be heard, and the Tribunal was entitled, if not obliged, to criticise the appellant as it did.

54. The first ground of appeal, in essence, centres upon an allegation that the Tribunal erred in law by denying procedural fairness to the plaintiff in making a finding of fact (to the effect that there was no evidence before the Tribunal that the fourth defendant’s sons, acting as her attorneys, had not acted in their mother’s best interests) without, the plaintiff alleges, allowing the plaintiff a reasonable opportunity (by the issue of summonses, in the character of subpoenas for the production of documents) to investigate the propriety of the attorneys’ management of the fourth defendants’ finances.

55. A denial of procedural fairness uncontroversially constitutes an error of law: Escobar v Spindaleri (1986) 7 NSWLR 51 at 57C, 59A-B and 60G.

56. The plaintiff’s allegation of a want of procedural fairness incorporates, as a sub-allegation, an allegation that the Tribunal misdirected itself by its invocation of the obligation imposed on it (by section 36 of the Civil and Administrative Tribunal Act) to “facilitate the just, quick and cheap resolution of the real issues in the proceedings”.

57. The Tribunal is said to have erred in denying the plaintiff’s demands that she be entitled, by the issue of summonses, to investigate the propriety of her brothers’ conduct, such demands having been made:

1. at a directions hearing on 25 June 2014, when the Tribunal (constituted by the senior member (legal) who presided over the final hearing) declined an application by the plaintiff to issue summonses, preferring to have the parties’ respective solicitors act upon an informal agreement, apparently made at the directions hearing but not documented, for the production of documents without the issue of any summonses.

2. at a subsequent directions hearing, held on 29 July 2014, when the Tribunal (constituted by the same senior member) made an order, in lieu of a grant of leave to issue summonses, that the attorneys file and serve:

3. (i) a statement of a term deposit, at a named bank, held in the fourth defendant’s name; and

4. (ii) a statement of income and expenses for the fourth defendant over the preceding 12 months.

5. at the final hearing, held on 14 October 2014, when the Tribunal (constituted by three members in accordance with clause 4 of Schedule 6 to the Civil and Administrative Tribunal Act) declined to grant the plaintiff’s application (made successively by counsel, who also applied unsuccessfully for leave to appear for the plaintiff, and his instructing solicitor, who already had a grant of leave to appear) for an adjournment, implicitly for the purpose of renewing the application, first made on 25 June 2014, for leave to issue summonses for the production of documents.

58. Each of the particular decisions the subject of the plaintiff’s complaints fell expressly within the definition of an “interlocutory decision” contained in section 4(1) of the Civil and Administrative Tribunal Act, with the consequence that the plaintiff could not appeal from them, directly, without the grant by the Court, pursuant to clause 14(1)(a) of Schedule 6 to the Act, of leave to appeal.

59. The plaintiff did not seek any such grant of leave but, rather, now contends that the interlocutory decisions of the Tribunal were not only incorrect, but also that they infected the order made by the Tribunal, at the end of the final hearing, to dismiss the plaintiff’s application for a financial management order. That decision fell, expressly, within the meaning of a “decision”, defined by section 5(1), susceptible to an appeal as of right on a question law as provided for in clause 14(1)(b) of Schedule 6.

60. On an appeal from a decision of the Tribunal the Court can, in an appropriate case, correct an interlocutory decision of the Tribunal that has affected the decision under appeal: Gerlach v Clifton Bricks Pty Limited (2002) 209 CLR 478 at 482[4] - 484[8] and 497[49]-[51].

61. The second ground of appeal centres upon an allegation that the Tribunal erred in law in that it took into account allegedly irrelevant considerations. In essence, this amounts to a complaint that the Tribunal unfairly criticised the plaintiff for delay in paying to, or for the benefit of, the fourth defendant the sum of $400,000 which the fourth defendant’s children had agreed in principle that the plaintiff would pay by way of a family settlement for her acquisition of the former residence of the fourth defendant. The Tribunal suggested that a lack of substance to the plaintiff’s application to the Tribunal “might cause apprehension on the part of a disinterested observer that [the application] was brought for the purposes of delay”, the plaintiff deferring any obligation she might have pay a debt and saving interest on any payment she might ultimately make.

62. A decision of the Tribunal made in disregard of a relevant consideration, or taking an irrelevant consideration into account, or a decision directed towards answering a wrong question (all of which elements tend to coalesce), jointly and severally, are uncontroversially amenable to an appeal “on a question of law” within the meaning of clauses 12 and 14 of Schedule 6 to the Civil and Administrative Tribunal Act, informed by sections 5(2) and 34 of the Act.

63. But for sections 5(2), 34 and 53(3)-(4) of the Civil and Administrative Tribunal Act, a decision affected by errors of the type here identified might, at least in some cases, have to be treated as void for jurisdictional error: Holmwood Holdings Pty Limited v Halkat Electrical Contractors Pty Limited [2005] NSWSC 1129 at [36], [41]-[43] and [51].

64. Determining what is to be taken into account when making a decision is a matter of construction of the statute conferring power: Director-General, Department of Finance & Services v Porter [2014] NSWCATAP 6 at [27], a decision of an NCAT Appeal Panel presided over by Wright J.

65. In combination, sections 5(2), 34 and 53(3)-(4) channel a challenge to a Tribunal decision through appeal processes tailored to particular jurisdictions, one manifestation of which (informed by the distinctive character of the protective jurisdiction) is found in Schedule 6, clauses 12 and 14: P v NSW Trustee and Guardian [2015] NSWSC 579 at [111]-[127]. Clause 14 provides an ample, albeit regulated, procedure for an appeal to the Court, supplemented, if need be, by the Court’s inherent protective jurisdiction.

THE PLAINTIFF’S MISUSE OF THE COURT’S SUBPOENA PROCESSES

66. Before dealing with the plaintiff’s grounds of appeal, it is necessary to notice that, in the conduct of her appeal to the Court, the plaintiff used the subpoena processes of the Court to obtain the production of records bearing upon the defendants’ finances, not available to her in the Tribunal proceedings.

67. She did this, apparently with the acquiescence of her brothers, by obtaining from a registrar a date for the return of subpoenas without drawing the registrar’s attention to the character of the appeal (limited to questions of law) and the absence, then or subsequently, of any application for leave to appeal on a broader ground.

68. In the absence of an application to the Court for a grant of leave to appeal on a ground other than a question of law, the plaintiff’s use of subpoenas was arguably an abuse of the processes of the Court: Botany Bay Instrumentation & Control Pty Ltd v Stewart [1984] 3 NSWLR 98 at 100B-101B and 101E-G. The plaintiff had no entitlement to issue subpoenas to obtain a form of discovery, or to satisfy her curiosity about management of her mother’s finances, unrelated to advancement of the specific case pending in the Court. She may have had a worthy purpose in seeking the production of documents to the Court but, if she did, it was collateral to the purpose (an appeal on questions of law) served by the proceedings.

69. The vice in what she did was that she secured an opportunity for the issue of subpoenas unrelated to any case she was then entitled to pursue, and she did so without disclosure of her lack of entitlement to the registrar or demonstration of a proper forensic purpose in use of the subpoena processes. She appears to have assumed, incorrectly, that she could simply run an appeal on a question of law as if a re-run of proceedings heard on the merits in the Tribunal.

70. I do not exclude the possibility that, in an appropriate case, the Court may permit a subpoena for the production of documents to be issued in aid of an appeal on a question of law. However, if that is to be done, the party seeking the production of documents can generally be expected: (a) to draw to the attention of the Court the limited nature of the appeal for the purpose of which documents are sought; and (b) to demonstrate a legitimate forensic purpose in seeking to invoke subpoena processes.

NCAT’S CHARTER AS A DECISION-MAKER

71. As a statutory tribunal, NCAT’s powers are defined, and circumscribed, by its governing legislation: Ex parte Currie; Re Dempsey (1969) 70 SR (NSW) 443 at 447; 91 WN (NSW) 34 at 38; John Fairfax & Sons Limited v Police Tribunal of New South Wales (1986) 5 NSWLR 465 at 476; Palmer v Clarke (1989) 19 NSWLR 158 at 166E-167C; Knaggs v Solicitors’ Statutory Committee [No. 2] (1992) 27 NSWLR 603 at 610-612.

72. The character of the Tribunal appears from the objects of the Civil and Administrative Tribunal Act set out in section 3 of the Act (with emphasis here added):

“3 Objects of Act

The objects of this Act are:

(a) to establish an independent Civil and Administrative Tribunal of New South Wales to provide a single point of access for most tribunal services in the State, and

(b) to enable the Tribunal:

(i) to make decisions as the primary decision-maker in relation to certain matters, and

(ii) to review decisions made by certain persons and bodies, and

(iii) to determine appeals against decisions made by certain persons and bodies, and

(iv) to exercise such other functions as are conferred or imposed on it, and

(c) to ensure that the Tribunal is accessible and responsive to the needs of all of its users, and

(d) to enable the Tribunal to resolve the real issues in proceedings justly, quickly, cheaply and with as little formality as possible, and

(e) to ensure that the decisions of the Tribunal are timely, fair, consistent and of a high quality, and

(f) to ensure that the Tribunal is accountable and has processes that are open and transparent, and

(g) to promote public confidence in tribunal decision-making in the State and in the conduct of tribunal members.”

73. These objects find reflection, and confirmation, throughout the Act.

74. Illustrations of that can be found in sections 36 and 38 of the Act.

75. Section 36 reads as follows (with emphasis added):

“36 Guiding principle to be applied to practice and procedure

(1) The "guiding principle" for this Act and the procedural rules, in their application to proceedings in the Tribunal, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings.

(2) The Tribunal must seek to give effect to the guiding principle when it:

(a) exercises any power given to it by this Act or the procedural rules, or

(b) interprets any provision of this Act or the procedural rules.

(3) Each of the following persons is under a duty to co-operate with the Tribunal to give effect to the guiding principle and, for that purpose, to participate in the processes of the Tribunal and to comply with directions and orders of the Tribunal:

(a) a party to proceedings in the Tribunal,

(b) an Australian legal practitioner or other person who is representing a party in proceedings in the Tribunal.

(4) In addition, the practice and procedure of the Tribunal should be implemented so as to facilitate the resolution of the issues between the parties in such a way that the cost to the parties and the Tribunal is proportionate to the importance and complexity of the subject-matter of the proceedings.

(5) However, nothing in this section requires or permits the Tribunal to exercise any functions that are conferred or imposed on it under enabling legislation in a manner that is inconsistent with the objects or principles for which that legislation provides in relation to the exercise of those functions.”

76. With emphasis added, section 38 is in the following terms:

“38 Procedure of Tribunal generally

(1) The Tribunal may determine its own procedure in relation to any matter for which this Act or the procedural rules do not otherwise make provision.

(2) 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.

(3) Despite subsection (2):

(a) the Tribunal must observe the rules of evidence in:

(i) proceedings in exercise of its enforcement jurisdiction, and

(ii) proceedings for the imposition by the Tribunal of a civil penalty in exercise of its general jurisdiction, and

(b) section 128 (Privilege in respect of self-incrimination in other proceedings) of the Evidence Act 1995 is taken to apply to evidence given in proceedings in the Tribunal even when the Tribunal is not required to apply the rules of evidence in those proceedings.

Note : Section 67 also prevents the compulsory disclosure of certain documents in proceedings in the Tribunal that would, in proceedings before a court, be protected from disclosure by reason of a claim of privilege.

(4) 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.

(5) The Tribunal is to take such measures as are reasonably practicable:

(a) to ensure that the parties to the proceedings before it understand the nature of the proceedings, and

(b) if requested to do so-to explain to the parties any aspect of the procedure of the Tribunal, or any decision or ruling made by the Tribunal, that relates to the proceedings, and

(c) to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings.

(6) The Tribunal:

(a) is to ensure that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue in any proceedings, and

(b) may require evidence or argument to be presented orally or in writing, and

(c) in the case of a hearing-may require the presentation of the respective cases of the parties before it to be limited to the periods of time that it determines are reasonably necessary for the fair and adequate presentation of the cases.”

77. It is not necessary for disposition of the current proceedings to set out in detail legislative provisions governing the Tribunal’s powers relating to the commencement of proceedings, joinder and representation of parties, the issue of summonses, or the conduct of proceedings generally. It is enough to know that legislative powers conferred on the Tribunal enable proceedings in the Tribunal to be “case managed” in a manner that conforms to the objects of the Civil and Administrative Tribunal Act.

78. The Tribunal was established with the benefit of experience of “case management” principles (embodied in the Civil Procedure Act 2005 NSW, sections 56-60) applied in the NSW court system, with which the jurisdiction of the Tribunal is integrated through provisions such as section 34 of the Civil and Administrative Tribunal Act and the flexible appeal procedures for which the Act provides, and in the afterglow of the High Court’s support for case management principles in AON Risk Services Australia Limited v Australian National University (2009) 239 CLR 175.

79. The heavy workload borne by the Tribunal could not be borne without due recognition being given to the objects of the Civil and Administrative Tribunal Act and the case management parameters within which the Tribunal must operate.

80. General “case management” provisions in the Act are the subject of adaptation in schedules to the Act. The schedules address the particular types of jurisdiction exercised in the Tribunal’s several Divisions: the Administrative and Equal Opportunity Division (Schedule 3), the Consumer and Commercial Division (Schedule 4), the Occupational Division (Schedule 5) and the Guardianship Division (Schedule 6).

81. The case management provisions of the Civil and Administrative Tribunal Act are not intrinsically at odds with an exercise of protective jurisdiction by the Guardianship Division of NCAT. An integral feature of an exercise of protective jurisdiction, even in the realm of the Court’s inherent jurisdiction, has long been that decisions need to be made without strife in the simplest, and least expensive, way in the interests of the person in need of protection: HS Theobald, The Law Relating to Lunacy (Stevens and Sons, London, 1924), pages 380 and 382; M v M [2013] NSWSC 1495 at [50] (f).

THE PURPOSIVE CHARACTER OF PROTECTIVE PROCEEDINGS

82. A constant point of reference for consideration of the plaintiff’s appeal is recognition of the purposive character of the proceedings in the Tribunal, the decision of the Tribunal under challenge on appeal and, generally, any exercise of protective jurisdiction.

83. That character is established for the Tribunal, explicitly, by clause 5 of Schedule 6 to the Civil and Administrative Tribunal Act (which incorporates section 4 of the Guardianship Act by reference) and, implicitly, by the protective nature of the subject matter of the Tribunal’s jurisdiction when exercising functions of the Tribunal allocated (by clause 3 of Schedule 6 to the Civil and Administrative Tribunal Act) to the Guardianship Division of the Tribunal.

84. Those functions include functions conferred or imposed on the Tribunal under the Guardianship Act, the NSW Trustee and Guardian Act and the Powers of Attorney Act.

85. Clause 5 of Schedule 6 reads as follows:

“5 Certain principles under Guardianship Act 1987 to be applied

(1) The Tribunal, when exercising its Division functions for the purposes of the Guardianship Act 1987 in relation to persons who have disabilities, is under a duty to observe the principles referred to in section 4 of that Act.

Note : Section 4 of the Guardianship Act 1987 sets out principles that everyone must observe when exercising functions under that Act with respect to persons with disabilities.

(2) The provisions of this clause are in addition to, and do not limit, the provisions of section 36 (5) of this Act [the Civil and Administrative Tribunal Act].”

86. Section 4 of the Guardianship Act reads as follows:

“4 General principles

It is the duty of everyone exercising functions under this Act with respect to persons who have disabilities to observe the following principles:

(a) the welfare and interests of such persons should be given paramount consideration,

(b) the freedom of decision and freedom of action of such persons should be restricted as little as possible,

(c) such persons should be encouraged, as far as possible, to live a normal life in the community,

(d) the views of such persons in relation to the exercise of those functions should be taken into consideration,

(e) the importance of preserving the family relationships and the cultural and linguistic environments of such persons should be recognised,

(f) such persons should be encouraged, as far as possible, to be self-reliant in matters relating to their personal, domestic and financial affairs,

(g) such persons should be protected from neglect, abuse and exploitation,

(h) the community should be encouraged to apply and promote these principles.”

87. The concept of “a person who has a disability” is elaborated by section 3(2) of the Guardianship Act in the following terms:

“(2) In this Act, a reference to a person who has a disability is a reference to a person:

(a) who is intellectually, physically, psychologically or sensorily disabled,

(b) who is of advanced age,

(c) who is a mentally ill person within the meaning of the Mental Health Act

2007 , or

(d) who is otherwise disabled,

and who, by virtue of that fact, is restricted in one or more major life activities to such an extent that he or she requires supervision or social habilitation.”

88. Notice has already been taken of section 36 of the Civil and Administrative Tribunal Act, subsection (5) of which is mentioned in clause 5(2) of Schedule 6 to the Act.

89. By one means or another, including via section 36(5), upon consideration of an application for a financial management order under Part 3A (sections 25D-25U) of the Guardianship Act, one is driven to the “general principles” for which section 4 of the Guardianship Act provides.

90. Those general principles are a statutory expression of the purposive character of the Court’s inherent (parens patriae) protective jurisdiction.

91. The “welfare principle” embodied in section 4(a) is the fountainhead for all that follows by way of elaboration.

92. Reinforcing explicit statutory provisions, the purposive character of the jurisdiction exercised by NCAT’s Guardianship Division is implicit in the nature of an application to the Tribunal for the appointment of a financial manager.

93. Section 25G of the Guardianship Act provides that the Tribunal may make a “financial management order” (defined by section 25D as meaning an order, under section 25E, for the estate of a person to be subject to management under the NSW Trustee and Guardian Act) 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 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.

94. Section 25M(1) of the Guardianship Act provides that, if the Tribunal makes a financial management order in respect of the estate (or part of the estate) of a person, the Tribunal may, by order: (a) appoint a suitable person as manager of that estate; or (b) commit the management of that estate to the NSW Trustee.

95. The office of a financial manager (or the equivalent office of a manager appointed under the NSW Trustee and Guardian Act, section 41) is a fiduciary one (Ability One Financial Management Pty Ltd and Another v JB by his tutor AB [2014] NSWSC 245 at [35](h)-(i) and [143]-[175]) to which is attached an obligation to account for dealing with the property of the protected person that is defined by reference to the purpose of the office (Countess of Bective v Federal Commissioner of Taxation (1932) 47 CLR 417 at 420-423; Clay v Clay (2001) 202 CLR 410 at 428[37]-430[40] and 432[46]-433[49]); namely, provision of care for those who are not able to take care of themselves (Marion’s Case (1992) 175 CLR 218 at 258, citing Wellesley v Duke of Beaufort (1827) 2 Russ 1 at 20; 38 ER 236 at 243).

96. Everything done, or not done, on an exercise of protective jurisdiction must generally be measured against what is in the interests, and for the benefit, of the person in need of protection: Holt v Protective Commissioner (1993) 31 NSWLR 227 at 238D-F and 241G-242A; GAU v GAV [2014] QCA 308 at [48].

97. A party to protective proceedings (whether the proceedings be in the Tribunal or the Court) who fails to anchor every argument in the purposive, protective character of the jurisdiction being exercised runs a risk, not only of inviting error on the part of a decision maker, but also of being misunderstood (or, perhaps, being correctly understood) as a person seeking to advance his or her own interests under the guise of caring for a person incapable of self-management. Sadly, but naturally, there is an almost universal tendency (which calls for vigilance on all fronts, even that of altruism) to view the needs of an incapable person through the prism of self-interest.

98. The purposive, protective character of an application for a financial management order is reflected, inter alia, in the locus standii required for the making of an application. Section 25I(1) of the Guardianship Act provides that an application can be made by the NSW Trustee, the person who is the subject of the application, or “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”.

99. This provision reflects the general law. Even a stranger may apply for the appointment of a protected estate manager, historically designated a “committee of the estate”. 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: Re W and L (Parameters of Protected Estate Management Orders) [2014] NSWSC 1106 at [90]-[94].

100. An applicant for a financial management order affecting the estate of another person has standing, and a “right” to be heard, contingent upon, and no more extensive than, a demonstrable, genuine concern for the welfare of the person the subject of the application.

APPEAL GROUND 1 : AN ALLEGED DENIAL OF PROCEDURAL FAIRNESS

The requirements of procedural fairness

101. The purposive character of the protective jurisdiction carries over into discussion of procedural fairness.

102. It is not to be doubted that the principles governing procedural fairness apply to proceedings in the Guardianship Division of NCAT. Section 38(2) of the Civil and Administrative Tribunal Act recognises as much when, in conventional terminology reminiscent of an earlier age of jurisprudence, it empowers the Tribunal to “enquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice”, an expression coincident with a reference, in modern day jurisprudence, to principles of procedural fairness.

103. At a lower level of abstraction, section 38(5)(c) implicitly recognises the Tribunal’s obligation to apply the principles of procedural fairness, by allowing parties a reasonable opportunity to be heard.

104. At the same time, it recognises the practical nature of, and constraints inherent in, the concept of procedural fairness. Any “right to be heard” (assuming that the language of entitlement is apt) is qualified by a consideration of what is “reasonably practical”, and limited to a “reasonable opportunity” to be heard or have “submissions considered”.

105. Any entitlement to be heard, and any constraints upon such an entitlement, also take colour from the character of the Tribunal as manifested in the objects of the Civil and Administrative Tribunal Act (set out in section 3) and provisions such as those found in sections 36 and 38 of the Act and, in protective cases, Schedule 6 to the Act.

101. The principles of procedural fairness, flexible and fact-sensitive as they are at all times, must accommodate the purposive character of an exercise of protective jurisdiction. If an unqualified application of principles of procedural fairness would frustrate the purpose for which the jurisdiction is conferred, the application of those principles has to be qualified to the extent necessary to avoid frustration of the purpose for which the jurisdiction is conferred: J v Lieschke (1987) 162 CLR 447 at 456-457.

102. An application of the principles of procedural fairness depends more on the substantive nature of particular proceedings – the issues to be determined, the powers available to be exercised and the interests apt to be affected – than the form which the proceedings take: J v Lieschke (1987) 162 CLR 447 at 459-460.

103. In the case of a person who is, or who stands in the position of, a parent vis-a-vis a child who is the subject of an exercise of protective jurisdiction (the specific type of case considered in J v Lieschke), the dictates of procedural fairness might have a clearer profile than is apparent in other cases, including a case, such as the present, in which an adult child applies for an order, or seeks to be heard about an order, affecting his or her elderly parent.

104. Nevertheless, in cases involving an exercise of protective jurisdiction, there is often a need, infused by a requirement for both delicacy and robust action in dealing with personal relationships, and in discovery of information bearing upon the welfare of a person incapable of self-management, to engage constructively with the person’s family or carers without being deflected by collateral, personal agendas.

105. There is nothing novel about this. Observations made by Lord Eldon in In Ex parte Whitbread in the Matter of Hinde, a Lunatic (1816) 2 Mer 99 at 101-103; 35 ER 878 at 879 illustrate the point.

106. In dealing with the question whether an allowance for a family member should be made out of the estate of (as modern terminology would have it) an incapable person, Eldon LC made the following statement as a preliminary to a reminder that the welfare and interests of the particular incapable person before the Court are the paramount consideration:

“For a long series of years the Court has been in the habit, in questions relating to the property of [an incapable person], to call in the assistance of those who are nearest in blood, not on account of any actual interest, but because they are most likely to be able to give information to the Court respecting the situation of the property [of the incapable person], and are concerned in its good administration. It has, however, become too much the practice that, instead of such persons confining themselves to the duty of assisting the Court with their advice and management, there is a constant struggle among them to reduce the amount of the allowance made for [the incapable person], and thereby enlarge the fund which, it is probable, may one day devolve upon themselves. Nevertheless, the Court, in making [an] allowance, has nothing to consider but the situation of the [incapable person] himself, always looking to the probability of his recovery, and never regarding the interest of the next of kin….”

112. The general principles for which section 4 of the Guardianship Act provides can be read as pointing in the same direction, demanding that the welfare and interests of an incapable person be afforded paramountcy of consideration, at the same time recognising that there may be a need to engage constructively with a person who (to paraphrase section 25I of the Guardianship Act) satisfies the Tribunal that he or she “has a genuine concern for the welfare” of the incapable person who is the subject of proceedings.

113. The axiom that administrative decision-makers must accord procedural fairness to those affected by their decisions needs to be placed in context:

1. “the real question” in many cases in which the axiom is encountered is “what is required in order to ensure that [a decision] is made fairly in the circumstances having regard to the legal framework within which the decision is to be made”: Minister for Immigration and Border Protection v WZARH [2015] HCA 40 at [30].

2. a person who is, or may be, affected by a prospective decision is not entitled to insist upon the observance of a particular form of decision-making process: WZARH at [38].

3. what must be shown by a person seeking to establish a denial of procedural fairness will depend upon the precise defect alleged to have occurred in the decision-making process: WZARH at [58].

4. where a procedure adopted by an administrator can be shown to have failed to accord a fair opportunity to be heard, practical injustice in such a case lies in the denial of an opportunity which in fairness ought to have been given: WZARH at [60].

114. These observations, recently made by the High Court of Australia, are predicated upon an acceptance that the concern of procedural fairness is to avoid practical injustice (Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at 14 [38]), focusing upon fairness in decision making procedures rather than decision-making outcomes: WZARH at [33], [38] and [57]-[60].

The Tribunal’s decision-making process leading to the decision under appeal

115. The legal framework within which the decision under appeal was to be made is one in which, as has been observed, the Tribunal was bound to observe:

1. “the general principles” for which section 4 of the Guardianship Act provides;

2. the “guiding principle” for which section 36 of the Civil and Administrative Tribunal Act provides; and

3. the procedural imperatives for which section 38 of the Civil and Administrative Tribunal Act provides,

informed by the objects of the Civil and Administrative Tribunal Act (found in section 3) and the protective character of the jurisdiction exercised by the Tribunal in deciding whether or not to appoint a financial manager or a Guardian.

116. The jurisdiction of the Tribunal in making such a decision is not a “consent jurisdiction” in the sense that an order for the appointment, removal or replacement of a financial manager can be made merely because a party, or some other person, seeks it, consents to it or acquiesces in it; M v M [2013] NSWSC 1495 at [50](a). The Tribunal is bound to exercise an independent judgement. This is necessary, quite apart from particular statutory imperatives, because of the public interest element in the decision to be made and the fact that a person in need of protection may lack the mental capacity needed to inform decision-making. The task of the Tribunal is to protect those who are not able to take care of themselves: Marion’s Case (1992) 175 CLR 218 at 258-259.

117. Well meaning though the plaintiff may have been in her applications to the Tribunal, she was not entitled to insist upon the Tribunal’s decision making processes following her dictates.

118. In the circumstances of the particular case the Tribunal was entitled to be wary against being deflected by a descent on the part of the plaintiff into adversarial litigation against her siblings.

119. The Tribunal sought, on reasonable grounds, to protect the fourth defendant’s welfare and interests by declining to the plaintiff opportunities to issue summonses for the production of documents, but:

1. requiring the plaintiff’s siblings to provide a summary form of accounting for their stewardship of the fourth defendant’s estate:

2. granting to each of the plaintiff and her siblings leave to be represented by a solicitor; and

3. allowing the plaintiff and her siblings an opportunity to be heard at an oral hearing before the Tribunal.

120. By these means, in a manner consistent with the objects of the Civil and Administrative Tribunal Act, the Tribunal endeavoured to accommodate the “general principles”, the “guiding principle” and the procedural imperatives it was bound to observe, never losing sight of the welfare and interests of the fourth defendant as the true focus of the proceedings or surrendering to the plaintiff’s adversarial instincts.

121. In proceeding as it did, the Tribunal was entitled to take into account the existence of, and lack of any direct challenge by the plaintiff to, the instruments (in the character of an enduring power of attorney and an enduring guardianship appointment) executed by the fourth defendant at a time when she had the requisite mental capacity to determine how, and by whom, her affairs should be managed.

122. The pathway taken by the Tribunal towards making the decision under appeal was calculated to identify a “the real issues in the proceedings” and to “facilitate the just, quick and cheap resolution” of them (as required by section 36(1) of the Civil and Administrative Tribunal Act) without forgetting the need to give paramountcy to the welfare and interests of the fourth defendant (confirmed by section 36(5) of the Act, clause 5 of Schedule 6 to the Act and the “general principles” referred to in section 4 of the Guardianship Act) and without denying to any person a reasonable opportunity to be heard.

123. The plaintiff’s first ground of appeal must fail.

APPEAL GROUND 2 : TAKING INTO ACCOUNT AN ALLEGEDLY IRRELEVANT CONSIDERATION

124. The plaintiff’s second ground of appeal must also fail.

125. The conduct of the plaintiff, in causing the residence of the fourth defendant and herself to be transferred into her name, led directly to her brothers’ assumption of management of the person and property of the fourth defendant.

126. The plaintiff’s contention that she could not give effect to a family settlement for her to make a restitutionary payment to the fourth defendant, because of doubts about the ability of the fourth defendant to give her a valid receipt, lay at the heart of the applications made by her to the Tribunal.

127. The plaintiff’s criticism of the bona fides of her brothers invited a critical assessment of her bona fides, in circumstances in which her own conduct was the immediate cause for concern about the person and property of the fourth defendant, particularly given the absence of any direct challenge to her brothers’ entitlements to act on the fourth defendant’s behalf under enduring instruments.

128. Having made applications to the Tribunal predicated upon an implicit need to take into account her own conduct as it bore upon the welfare and interests of the fourth defendant, the plaintiff has no cause for complaint in the Tribunal taking up the challenge.

129. The Tribunal was under a duty, conveniently encapsulated in section 4 of the Guardianship Act, to observe “general principles” which required “the welfare and interests” of the fourth defendant to be given paramount consideration, in a context that required consideration of her family relationships and protection of her from neglect, abuse and exploitation.

130. An evaluation of a broad range of factors of this character was also inherent in a consideration of whether the fourth defendant was capable of managing her affairs, whether she was in need of a protected estate manager, and whether it was in her best interests that a financial management order be made: Guardianship Act, section 25G; CJ v AKJ [2015] NSWSC 498 at [30]-[42]; P v NSW Trustee and Guardian [2015] NSWSC 579 at [227)-[319]; H v H [2015] NSWSC 837 at [27]-[36].

131. Insofar as references (in section 4(a) and section 25G(c) of the Guardianship Act) to the “interests” of the fourth defendant may be read as importing a discretionary value judgement by reference to undefined factual matters, the subject-matter, scope and purpose of the legislation governing the Tribunal’s decision-making are such as to preclude a finding that the Tribunal’s findings vis-a-vis the plaintiff were extraneous to the objects Parliament had in view in providing for the appointment of a financial manager: Pilbara Infrastructure Pty limited v Australian Competition Tribunal (2012) 246 CLR 379 at 400-401[41], citing Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492 at 505.

132. In fielding stones thrown by the plaintiff at her family, the Tribunal was entitled, if not obliged, to observe that she lived in a glass house.

ANCILLARY BUSINESS

133. I am confident in my conclusion that the plaintiff’s appeal should be dismissed. Her allegations of error in the decision, and decision making processes, of the Tribunal lack a firm foundation in the way her applications to the Tribunal were made and in the nature, and scope, of her appeal to the Court.

134. In considering the proper order to be made as to the costs of the appeal (bearing in mind the principles identified in CCR v PS (No. 2) (1986) 6 NSWLR 622 at 640, discussed in CAC v Secretary, Department of Family and Community Services [2014] NSWSC 1855 at [129]-[134] and CAC v Secretary, Department of Family and Community Services (No. 2) [2015] NSWSC 344 at [11]-[15]), I would be assisted by brief evidence as to the present, personal and financial, circumstances of the fourth defendant.

135. In the course of submissions in the appeal, counsel for the first, second and third defendants provided to the Court an assurance that, although there may have been some mixing of the fourth defendant’s moneys with those of other family members in the early days of management by his clients of the fourth defendant’s affairs, any mixing of funds had been remedied by the time of the Tribunal hearing so that her property is identifiable, distinct and able easily to be accounted for.

136. Accepting that assurance, but given lingering animosities between siblings, and a need, in the interests of the fourth defendant, to put these proceedings to rest on a firm, practical footing, I propose to invite (and, if necessary, to direct) the defendants to file, at least in summary form, an affidavit accounting for their stewardship of the fourth defendant’s estate.

137. With the benefit of such an affidavit, or at least further submissions, I will decide the question of costs.

CONCLUSION

138. For the present, I order that the plaintiff’s appeal be dismissed, reserving for further consideration all questions of costs relating to the proceedings.

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Decision last updated: 27 November 2015