Civil and Administrative Tribunal New South Wales Medium Neutral Citation: ZQB v ZPV [2020] NSWCATAP 274 Hearing dates: 20 August 2020 Date of orders: 18 December 2020 Decision date: 18 December 2020 Jurisdiction: Appeal Panel Before: A Britton, Principal Member J Kearney, Senior Member M Bolt, General Member Decision: (1) The appeal is dismissed. (2) Leave to appeal is refused. Catchwords: APPEAL — principles applying to granting leave to appeal from decision made by Guardianship Division of the NSW Civil and Administrative Tribunal Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Guardianship Act 1987 (NSW) National Disability Insurance Scheme Act 2013 (Cth) Public Health (COVID-19 Restrictions on Gathering and Movement) Order 2020 (NSW) Cases Cited: Azriel v NSW Land & Housing Corporation [2006] NSWCA 372 BPY v BZQ [2015] NSWCATAP 33 Collins v Urban [2014] NSWCATAP 17 Frost v Kourouche (2014) 86 NSWLR 214; [2014] NSWCA 39 IF v IG & Ors [2004] NSWADTAP 3 Kioa v West [1985] HCA 81; (1985) 159 CLR 550 McKenzie v McKenzie [1970] 3 All ER 1034 P v NSW Trustee and Guardian [2015] NSWSC 579 Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 SAB v SEM and Ors [2013] NSWSC 253 ZBC v ZBD [2016] NSWCATAP 264 ZGM v ZGN [2018] NSWCATAP 101 ZKF v ZKG [2019] NSWCATAP 64 Texts Cited: Guardianship and Administration Council, 'Guidelines for maximising the participation of the Subject Person in guardianship proceedings' (June 2019) NCAT Guardianship Division, 'Guidelines for Representation' (August 2017) NCAT President, 'Temporary changes to NCAT operations' (26 March 2020) Category: Principal judgment Parties: ZQB (Appellant) ZPV (First Respondent) ZPX (Second Respondent) ZPW (Third Respondent) NSW Trustee and Guardian (Fourth Respondent) Representation: Counsel: D Burwood (First Respondent) Solicitors: Navado Lawyers & Solicitors (Appellant) Houston Dearn O'Connor Lawyers (Second and Third Respondents) Public Guardian (Fourth Respondent) File Number(s): AP 20/21432 Publication restriction: Pursuant to s 65 of the Civil and Administrative Tribunal Act 2013 (NSW), the publication of the name of any of the parties or other people referred to in this decision including the publication of any information, picture or other material that identifies them, or is likely to lead to their identification, is prohibited. Decision under appeal Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Guardianship Division Date of Decision: 13 April 2020 Before: B Adamovich, Senior Member (Legal) L Houlahan, Senior Member (Professional) D Sword, General Member (Community) File Number(s): 2000/00073671 REASONS FOR DECISION 1. Forty-eight-year-old ZPV ("the Subject Person") has an intellectual disability associated with Down syndrome. For the past 15 years he has been living in a group home. 2. Since 2001, the Subject Person has been subject to a financial management order. In addition, since 2001 he has been subject to a series of guardianship orders made by the Guardianship Division of the NSW Civil and Administrative Tribunal ("NCAT") and one of NCAT's predecessors, the NSW Guardianship Tribunal. 3. The most recent guardianship order was made in April 2020. In that order, the Tribunal decided to renew the guardianship order made in 2017 in respect of the Subject Person ("the 2017 Order"). In addition, the Tribunal decided to vary the 2017 Order by appointing one of the Subject Person's sisters, ZPX, to act as joint guardian with another sister ("the Original Guardian"), who had acted as her brother's sole guardian for the past two decades. The Original Guardian had requested the Tribunal to appoint ZPX as joint guardian because she felt unable to continue as sole guardian on account of her husband's poor health. 4. A third sister, the appellant in these proceedings, nominated herself to act as the Subject Person's guardian. Dissatisfied with the decision made in April 2020, specifically the decision to appoint the Guardians, she appeals that decision. The grounds centre on the alleged failure by the Tribunal to afford the Subject Person procedural fairness and to give proper consideration to the Subject Person's welfare and interests. 5. We have decided to dismiss the appeal and not to grant leave to appeal. Publication of the names of the parties 1. The publication or broadcast of the name of any person mentioned, or otherwise involved, in an "internal appeal" against decisions made by the Guardianship Division of NCAT is prohibited: ss 65(1) and 65(2) of the Civil and Administrative Tribunal Act 2013 (NSW) ("NCAT Act"). Being an official report of the appeal proceedings, that prohibition does not apply to these reasons: s 65(3) of the NCAT Act. Nonetheless, because of the sensitive nature of the matters discussed in these reasons, we will not refer to the parties by name. 2. In this appeal, the Registrar assigned the following pseudonyms to the parties: * "ZPV", the person the subject of the 2020 guardianship order ("the Subject Person"); * "ZQB", the Subject Person's sister and the appellant in these proceedings ("the Appellant"); * "ZPX", the Subject Person's sister and sole guardian from 2001 and joint guardian from April 2020 ("the Original Guardian"); * "ZPW", the Subject Person's sister and joint guardian since April 2020. 1. For ease of reading, in these reasons we will not refer to the parties by pseudonyms but rather the short-hand descriptions listed above. Statutory framework 1. The Tribunal may make an initial "continuing guardianship order" for a period not exceeding 12 months and a renewed continuing guardianship order for a period of up to 36 months: s 18(1) of the Guardianship Act 1987 (NSW). Where the requirements of s 18(1B) are satisfied, which include the person the subject of the order having "permanent disabilities", the Tribunal may make an initial guardianship order for a period not exceeding three years and a renewed continuing guardianship order for a period not exceeding five years: s 18(1A). 2. Contained in Division 4, Part 3 of the Guardianship Act which is headed "Assessment and review of guardianship orders", s 25(2)(b) states that the Tribunal must review any guardianship order at the expiration of the period for which the order has effect. 3. On reviewing a guardianship order under s 25(2)(b), the Tribunal may: (a) renew, or renew and vary that order, or (b) determine that the order is to lapse (and revoke the order in respect of any unexpired period for which the order is specified to have effect): s 25C(2). 4. Section 14 of the Guardianship Act sets out the matters the Tribunal take into account in deciding whether to make a guardianship order. 14 TRIBUNAL MAY MAKE GUARDIANSHIP ORDERS (1) If, after conducting a hearing into any application made to it for a guardianship order in respect of a person, the Tribunal is satisfied that the person is a person in need of a guardian, it may make a guardianship order in respect of the person. (2) In considering whether or not to make a guardianship order in respect of a person, the Tribunal shall have regard to: (a) the views (if any) of: (i) the person, and (ii) the person's spouse, if any, if the relationship between the person and the spouse is close and continuing, and (iii) the person, if any, who has care of the person, (b) the importance of preserving the person's existing family relationships, (c) the importance of preserving the person's particular cultural and linguistic environments, and (d) the practicability of services being provided to the person without the need for the making of such an order. 1. When determining which of its powers in s 25C(2) should be exercised, the Tribunal must consider the matters set out in s 14: IF v IG & Ors [2004] NSWADTAP 3 at [20]. 2. Where the Tribunal decides to make a guardianship order, it must appoint a person(s) who is aged 18 years or older as the guardian of the person under guardianship: s 16(1)(a) of the Guardianship Act. 3. Before appointing a person to act as the guardian of the person under guardianship, the Tribunal must satisfy itself that the proposed guardian satisfies each of the three matters listed in s 17(1): 17 GUARDIANS (1) A person shall not be appointed as the guardian of a person under guardianship unless the Tribunal is satisfied that: (a) the personality of the proposed guardian is generally compatible with that of the person under guardianship, (b) there is no undue conflict between the interests (particularly, the financial interests) of the proposed guardian and those of the person under guardianship, and (c) the proposed guardian is both willing and able to exercise the functions conferred or imposed by the proposed guardianship order. 1. Section 4 imposes a duty on any person exercising functions under the Guardianship Act, including the Tribunal and any appointed guardian, to observe the principles in s 4 of that Act: 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. 1. The obligation to have regard to these principles is reinforced by the NCAT Act. Clause 5(1) of Sch 6 to that Act, states that when exercising its "Division functions for the purposes of the Guardianship Act 1987", the Tribunal is under a duty to observe the principles set out in s 4 of the Guardianship Act. (See P v NSW Trustee and Guardian [2015] NSWSC 579 at [53]-[58]; ZGM v ZGN [2018] NSWCATAP 101 at [39]; ZBC v ZBD [2016] NSWCATAP 264 at [101], [105]). Grounds of appeal 1. A party has a right to appeal against a decision made by the Tribunal on any question of law or, with the leave of the Appeal Panel, on any other ground: s 80(2)(b) of the NCAT Act. 2. When the notice of appeal was lodged, the appellant was self-represented. At the hearing of the appeal, the solicitor for the appellant informed the Appeal Panel that the appellant had abandoned all but the following three grounds set out in the Notice of Appeal: 1. whether by conducting the review by telephone, the Tribunal denied the Subject Person procedural fairness; 2. whether by refusing leave to Mr Chate to act as McKenzie Friend for the Subject Person, the Tribunal denied the Subject Person procedural fairness; 3. whether the Tribunal failed to give real and genuine consideration to the Subject Person's welfare and interest. 1. In addition, the appellant seeks leave to appeal. Ground 1: By conducting the review by telephone did the Tribunal deny the Subject Person procedural fairness? 1. The hearing to review the 2017 Order was conducted on 14 April 2020. At that time public movement in New South Wales was significantly restricted by the Public Health (COVID-19 Restrictions on Gathering and Movement) Order 2020 (NSW) made 30 March 2020. Public institutions, such as courts and tribunals, sought to deliver the essential services of government within those restrictions by introducing changes to their methods of operation. On 26 March 2020, NCAT President, Justice Lea Armstrong, introduced a series of changes to NCAT's practices, which included conducting hearings by phone or audio-visual link ("AVL") and only conducting in-person hearings with the express permission of the President: Temporary changes to NCAT operations, NCAT President, 26 March 2020. 2. The appellant contends that by conducting the hearing by telephone and failing to take steps to facilitate the Subject Person's participation, the Tribunal failed to provide him with a reasonable opportunity to participate in the hearing. While acknowledging that the Subject Person has a limited ability to comprehend complex matters and to communicate verbally, the appellant contends that this ability was significantly diminished as a consequence of the hearing being conducted by telephone and the Subject Person being unable to see who was speaking and the Tribunal's alleged failure to not ask him any direct questions. Pointing to her own experience of interacting with the Subject Person and the observations of others involved in his care, the appellant contends that he is able to communicate at "a basic level". 3. While acknowledging the constraints imposed by the COVID-19 restrictions, the appellant contends that there were several options available, which may have facilitated the Subject Person's participation and which the Tribunal failed to explore, including: 1. conducting the hearing by AVL, or in person with appropriate social distancing; 2. asking direct questions of the Subject Person; 3. assisting the Subject Person to participate by exploring options, such as the use of Assistive Technology ("AT"). In support, she points to the report prepared by the Subject Person's speech pathologist dated 17 March 2020. 1. The Guardians dispute that as a consequence of the hearing being conducted by telephone, the Subject Person was denied procedural fairness. They contend it would not have made any difference had the hearing been conducted in person or by AVL, pointing to the following: 1. The opinion of Mr Tim Chate, a solicitor with the Intellectual Disability Rights Service. Mr Chate met with the Subject Person before the hearing. He informed the Tribunal that when he met alone with the Subject Person, he was unable to obtain any instructions "as a result of the severity of [the Subject Person's] intellectual disability". When he later met with the Subject Person in the company of the Appellant, he "could only respond when prompted by [the Appellant]": see Reasons at [11],[81]. 2. The assessment made by the Separate Representative appointed for the Subject Person in this appeal. In a report prepared for the appeal, dated 8 July 2020, the Separate Representative, Mr Burwood of counsel, recorded that he met with the Subject Person for an hour at the group home where the Subject Person was residing. They sat and had a cup of tea. Mr Burwood wrote that "[A]s Separate Representative my role is to gain, as best as I can, the views of [the Subject Person] and to ascertain and give voice to his best interests". Mr Burwood wrote that he was unable to have the Subject Person communicate his views either about the appointment of the Guardian or the appeal. In a subsequent report dated 8 August 2020, Mr Burwood noted that at that meeting the team leader of the group home, who had accompanied the Subject Person and had known him for many years, did not suggest any medium which might assist the Subject Person to communicate. 3. The statement made by the previous Tribunal (Senior Member, Dr Ivan Beale) in its reasons for the decision, made on 3 March 2017, to renew the 2011 Guardianship Order (at [12]): "[The Subject Person] attended the hearing in person, but the Tribunal was not able to determine his views because of the severity of his disability." 1. The fact that the Subject Person attended the hearing and is familiar with communicating by telephone. The Guardians point out that the Appellant speaks to the Subject Person "most afternoons" for between five to 10 minutes. 2. The absence of any reliable evidence to support the claim that the Subject Person is able to use Assistive Technology (AT). In the report on which the Appellant relies, the speech pathologist recorded that the Subject Person has not used AT since March 2019 when he stopped seeing his previous speech pathologist. Noting the "gap in maintaining and progressing this aspect of [the Subject Person's] development with AT", the speech pathologist wrote that alternative AT options are "being considered". She noted that because of his limited fine motor skills, the Subject Person found it difficult to use AT. The speech pathologist recommended that he receive occupational therapy to develop those skills. 1. Pointing to his own experience of difficulties communicating with the Subject Person and eliciting his views, Mr Burwood rejects the contention that the Subject Person was denied procedural fairness. Mr Burwood submits that the submission made by the Appellant would have had greater force had there been reliable evidence to support the assertion that the Subject Person was able to use AT. Consideration 1. As Brennan J observed in Kioa v West [1985] HCA 81; (1985) 159 CLR 550 at 615, procedural fairness, in particular the obligation to give a party a fair hearing (the "hearing rule"), is "chameleon-like" and depends on the circumstances of the particular case. Here, the circumstances that inform the nature and content of that obligation include: 1. The statutory framework: The Tribunal was obliged to afford the Subject Person procedural fairness: s 38(2) of the NCAT Act. Among other things, the Tribunal was required to take such measures as are "reasonably practicable" to ensure the Subject Person understood the nature of the proceedings (s 38(5)(a) of the NCAT Act) and to ensure that he had a reasonable opportunity to be heard or otherwise have his submissions considered in the proceedings (s 38(5)(c) of the NCAT Act). 2. The obligation to have regard to the views of the Subject Person. In reviewing the 2017 Order, the Guardianship Act and the NCAT Act instructed the Tribunal to have regard to the views of the subject person: ss 4(d), 14(2)(a)(i) of the Guardianship Act; cl 5(1) of Sch 6 to the NCAT Act. 3. The nature of the decision: The decision made by the Tribunal directly and significantly affected the Subject Person's interests. It determined whether decisions about his "person" should be made by another person, who should be appointed guardian(s) and what type of decisions they should be empowered to make. 4. The Subject Person's circumstances: The Subject Person has a significant intellectual disability which impacts upon his capacity to comprehend and to communicate. 1. To satisfy the obligation to afford procedural fairness to a person the subject of, or proposed subject of, an order made under the Guardianship Act, a Tribunal must do something more than merely hold a hearing and invite the Subject Person to participate. What that "something more" entails will depend on the circumstances of the case, which include: 1. the nature of the Subject Person's disability; 2. the likely ability of the Subject Person to participate in a hearing and to express their views about the issues required to be determined by the subject application/review; 3. the assistance and support, if any, likely to be provided at the hearing to the Subject Person by friends, family, support workers etc., to assist him to participate in the hearing; 4. whether the Subject Person's ability to participate in the hearing and/or express a view is likely to be enhanced or facilitated if they were to be provided additional assistance or support. 1. This ground of appeal raises the difficult question of how the Tribunal gives effect to the dual obligations — to afford procedural fairness and to give consideration to the views of the subject person — in circumstances such as these, where the person the subject of the current or proposed guardianship order has a significant intellectual disability which impedes their ability to comprehend and to communicate. 2. The "Guidelines for maximising the participation of the Person in guardianship proceedings" June 2019, developed by the Guardianship and Administration Council (the Guidelines), offer guidance on practical measures available to a Tribunal to assist it to comply with its obligation to afford the Subject Person procedural fairness. They include identifying before the hearing whether the subject person requires communication or some other form of support and, where practicable, listing the hearing in a location that allows the person to participate in person (Guidelines 3 and 6). 3. In evaluating whether the Tribunal failed to discharge its obligation to afford the Subject Person procedural fairness, we consider the following matters to be relevant. 4. First, the evidence that the Tribunal made its own independent enquiries about whether the Subject Person is likely to be able to participate in the hearing and to express a view. Consistent with the practice of the Guardianship Division of NCAT, those enquiries were made by an NCAT registry officer. In a hearing report provided to the Tribunal and the parties before the hearing, the officer recorded that they had attempted to contact the Subject Person by phone and was told he did not wish to take the call; a team leader at the Subject Person's place of residence informed the officer that the Subject Person "has very limited speech and comprehension and would not be able to express his views about the order". 5. Second, the opinion expressed by the team leader was consistent with that expressed by Mr Chate, an experienced disability advocate. As noted, Mr Chate informed the Tribunal that he was unable to obtain instructions from the Subject Person as a result of the severity of his intellectual disability. 6. Third, the absence of any material which might indicate any change in the Subject Person's ability to communicate and comprehend since the 2017 review. As noted above, in reasons for making the 2017 Order, Dr Beale recorded that he was not able to determine the Subject Person's views because of the "severity of his disability". 7. Fourth, the attempts made by the Tribunal at the hearing to ascertain whether the Subject Person was able to express a view. Contrary to the Appellant's claim that the Tribunal did not attempt or adequately attempt to encourage the Subject Person to participate in the hearing, the transcript of the hearing revealed that on a number of occasions, the Tribunal attempted to facilitate the Subject Person's participation. See for example, Transcript of proceedings, Re ZPV, NCAT, 2000/00073671, 13 April 2020 ,p 2, l 30. 8. Fifth, the failure of any hearing participant, including the Appellant, to suggest to the Tribunal some form of support or assistance to enable the Subject Person to participate and/or to express his views. 9. Sixth, the absence of any reliable evidence to support the proposition that had he been provided with assistance, the Subject Person is likely to have been able, or more able, to participate in the hearing and/or to express his views. At its highest, the opinion expressed by the Subject Person's current speech therapist is that, with support and further training, the Subject Person might be able to use AT to assist him to communicate. 10. The obligation to afford the Subject Person procedural fairness is not abrogated where, as here, the subject person has a disability, which significantly impacts on their ability to communicate and to participate in a hearing. It requires the Tribunal to take real and genuine steps to facilitate the Subject Person's participation. While it is not possible to be prescriptive, where, for example, the Tribunal is aware that the Subject Person is likely to be able, or better able, to participate and/or express a view if the hearing were conducted in person, a failure to conduct an in-person hearing, where reasonably practicable to do so, may amount to a breach of the hearing rule. Similarly, where the Tribunal is aware that if provided with a particular type(s) of support and/or assistance, the Subject Person's ability to participate in a hearing is likely to be facilitated or enhanced, and it is reasonably practicable for the Tribunal to provide, or to arrange for that support and/or assistance to be provided to the Subject Person, a failure to do so may amount to breach of the hearing rule. 11. We accept, as the Appellant contends, that because of the absence of visual cues some people with an intellectual disability will find it difficult to effectively participate in a hearing conducted by telephone. Given the COVID-19 restrictions in place when the review hearing was conducted in April 2020, it was not reasonably practicable to conduct an in-person hearing. The available material does not disclose why the hearing was conducted by telephone and not AVL. However, even if it is assumed that it was reasonably practicable for the hearing to be held by AVL, the available material does not support a finding that this would have facilitated or enhanced the Subject Person's ability to participate in the hearing and/or to express a view. Nor does the available material support a finding that had the Subject Person been provided with AT his ability to participate in the hearing is likely to have been facilitated or enhanced. 12. We are not persuaded that by conducting the hearing by telephone the Subject Person was denied procedural fairness. This ground of appeal fails. Ground 2: By refusing leave to Mr Chate to act as a McKenzie Friend for the Subject Person, did the Tribunal deny the Subject Person procedural fairness? 1. As the Appellant points out, this ground of appeal raises much the same issue as Ground 1. The Appellant contends that had the hearing been conducted in person, Mr Chate may have been able to assist and support the Subject Person in the hearing. Consideration 1. At the hearing, Mr Chate sought leave to act as a McKenzie Friend for the Subject Person. A McKenzie Friend is a person who provides support and assistance to a party throughout a hearing but does not advocate or represent the party (see McKenzie v McKenzie [1970] 3 All ER 1034; NCAT Guardianship Division Guideline Representation August 2017.) 2. The Tribunal raised with Mr Chate how he would carry out the role of McKenzie Friend in circumstances where he and the Subject Person were at different locations: COMMUNITY MEMBER: Mr Chate could I just ask you a question in terms of your intentions to act as a McKenzie friend in the time that we have available did you, you're not co-located at the moment obviously with [the Subject Person]. I'm wondering were you wanting to take breaks during the meeting to talk to [the Subject Person]? How did you envisage your role as a McKenzie friend working in practice given the distance purely, of both space and time I suppose? How did you want to proceed if you were going to be a McKenzie friend? Mr CHATE: I don't really have the answer to that question. I'll leave it to the Tribunal. I appreciate the practical difficulties that I'm not actually there and able to talk to [the Subject Person]. I tried to talk to [the Subject Person] in my office on two occasions and it was very difficult to understand - verbally get answers to my questions and he did [the Appellant] was with me after I tried alone, and [the Appellant], like, prompted [the Subject Person] but even then, you sort of got like head movements in agreement or smiles or things like that so communication is an issue. 1. After conferring to consider Mr Chate's application, the Tribunal announced its decision, explaining: PRESIDER: Mr Chate, given the circumstances and the communication problems and the fact that [the appellant] was with [the Subject Person]. prompting him when you did see him - the Tribunal doesn't think it's appropriate that you act as a McKenzie Friend for [the Subject Person].. 1. The Appellant disputes Mr Chate's claim that she prompted the Subject Person. 2. We reject the contention that by refusing to permit Mr Chate to act as a McKenzie Friend for the Subject Person, the Tribunal denied the Subject Person procedural fairness. Mr Chate conceded that he could not point to a solution to the problem posed by the Tribunal about how he would assist the Subject Person in circumstances where they were not co-located. But perhaps more to the point, Mr Chate's account of his meeting with the Subject Person tends to suggest that even if co-located with the Subject Person, he is unlikely to have been able to assist the Subject Person to participate in the hearing or to express his view. 3. The rules of procedural fairness are designed to "avoid practical injustice": Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 at [37]; Frost v Kourouche (2014) 86 NSWLR 214; [2014] NSWCA 39 at [41]. We are not persuaded that as a consequence of the hearing being conducted by telephone and the Tribunal's decision to refuse to permit Mr Chate to act as a McKenzie Friend, any practical injustice resulted in respect of the Subject Person. 4. This ground of appeal fails. Ground 3: Did the Tribunal fail to give "proper, genuine and realistic consideration" to the welfare and interests of the Subject Person? 1. Pointing to the obligation imposed on the Tribunal to give "paramount consideration" to the "welfare and interests" of the Subject Person (s 4(a) of the Guardianship Act), the Appellant asserts that in deciding who to appoint as guardian, the Tribunal failed to give "proper, genuine and realistic consideration" to the Subject Person's welfare and interests. 2. The Appellant contends that the Tribunal fell into error by focusing on the dispute between herself and other members of the family, in particular the Guardians, citing in support, BPY v BZQ [2015] NSWCATAP 33 at [34]. As a consequence, she contends that the Tribunal failed to consider or to properly consider several issues of direct relevance to the Subject Person's welfare and interests, including: 1. The suitability of the Subject Person's current place of residence. The Appellant contends that the Subject Person's current place of residence is far from ideal and places him at risk of physical harm, pointing to the reported assaults by other residents. She asserts that the Original Guardian downplays the risk to the Subject Person and has failed to be "proactive" and insist that the current accommodation provider acts to ensure the Subject Person's safety. 2. The alternative accommodation option: The Appellant found an alternative place of residence for the Subject Person. In her opinion it is likely to better meet the Subject Person's needs and interests and to provide him with an improved quality of life. While they have stated they are open to that option, the Appellant apprehends that the Guardians are not open to considering alternative accommodation options for the Subject Person. 3. The Appellant's role in advocating for and arranging services on behalf of the Subject Person. She states that her actions in advocating for and arranging services for the Subject Person evidences her commitment to making the Subject Person's interests the "number one" priority. (In July 2019, the Appellant was appointed the Subject Person's "plan nominee" under the National Disability Insurance Scheme Act 2013 (Cth)). 1. The Guardians disagree that the Tribunal failed to have regard, or proper regard, to the Subject Person's welfare and interests in determining who to appoint as the Subject Person's guardian. In support they point to the reasons given by the Tribunal which address a range of issues relevant to the Subject Person's welfare and interests. See for example, at [36], [37], [64]: the suitability of the Subject Person's current place of residence; and at [66]: the Subject Person's health needs. 2. While framed as a purported failure to consider a "mandatory consideration", the Guardians contend that in truth this ground is an expression of disagreement about the finding made by the Tribunal that the Appellant is unable to discharge the role of guardian. 3. The Separate Representative endorses the Guardians' submission. The Separate Representative submits that in deciding whether the Appellant is able to act as guardian, the Tribunal found that she may not "objectively make decisions on behalf of her brother" and in discharging the role of guardian "respect the principles of s 4 of the Guardianship Act": at [80], [82]. Consideration 1. The Appellant correctly points out that in exercising its power to review the 2017 Order, the Tribunal was required by s 4(a) of the Guardianship Act to observe the principle that "the welfare and interests of the [Subject Person] should be given paramount consideration". Basten J explained in Azriel v NSW Land & Housing Corporation [2006] NSWCA 372 ("Azriel") at [49] that where, as here, the law requires the decision-maker to give consideration to a particular matter(s), that requirement is not satisfied by "formalistic reference". Rather, the decision-maker must give "proper, genuine and realistic consideration" to that matter. Basten JA warned at [51] that the assessment of whether a decision-maker gave proper, genuine and realistic consideration to a matter must be approached with caution to avoid an impermissible reconsideration of the merits of the decision. (See also, the authorities cited in ZGM v ZGN at [47]). 2. The question of whether the Tribunal gave proper, genuine and realistic consideration to the Subject Person's interests arose in the context of its decision about whom to appoint as the Subject Person's guardian. Section 17 of the Act instructed the Tribunal that a person shall not be appointed as guardian unless it was satisfied that they met the three matters listed in s 17(1). Here the Tribunal found that despite her many positive qualities, proven commitment and devotion to her brother, it was not satisfied that the Appellant met the second limb of par (c) of s 17(1) — being able to exercise the functions conferred by the guardianship order. 3. As explained by the Appeal Panel in ZKF v ZKG [2019] NSWCATAP 64 at [31]: [Section 17(1) (c)required the Tribunal to consider not only whether the appellant possessed the necessary skill and experience to be able to exercise that function (or put another way, to make decisions about his mother's accommodation on her behalf) but also whether he had the personal attributes, such as judgement and integrity, required to exercise that function. In addition, as correctly acknowledged by the Tribunal, this required the Tribunal to consider whether the appellant was able to make those decisions in a manner consistent with the statutory duty imposed by s 4 of the Guardianship Act: W v G [2003] NSWSC 1170; (2003) 59 NSWLR 220 at [25] (per Windeyer J); IR v AR [2015] NSWSC 1187 at [36] (per Lindsay J). 1. At [78]-[83] of the Reasons, the Tribunal explained why it was not satisfied that the Appellant was able to exercise the conferred functions. 2. The Tribunal concluded that the Appellant would probably not be able to: objectively make decisions for the Subject Person [80]; communicate with "all the stakeholders in [the Subject Person's] life, including any "current and future accommodation providers" at [80]. 3. We reject the submission that the Tribunal was distracted by the dispute between the Appellant and her siblings and as a consequence, failed to give proper regard to the welfare and interest of the Subject Person. It is not a fair reading of the reasons for decision to suggest that the focus of the Tribunal's consideration was whether the appointment of the Appellant is likely to exacerbate the conflict within the family surrounding the Subject Person. Rather, the reasons reveal that the Tribunal found that at this point in time the Appellant lacked the ability to discharge the role of guardian because of a lack of objectivity (relating to decisions concerning the Subject Person) and ability to communicate with relevant stakeholders about matters which affected his interests. Those findings were open to the Tribunal on the available material. 4. Further, we reject the submission that the Tribunal confined its consideration to those issues discussed under the heading "Who should be appointed as the guardian?" and failed to consider or to properly consider with an open mind the concerns raised by the Appellant about matters relating to the Subject Person's welfare and interests, in particular the suitability of his current accommodation provider and the Original Guardian's alleged refusal to consider alternative accommodation options. At [65] the Tribunal squarely addressed that issue, noting that the alternative accommodation proposal identified by the Appellant "which may assist [the Subject Person] to increase his independence" warranted further consideration, and giving the guardian an accommodation function. (See for example [36], [37], [41], [64], [66].) 5. This ground of appeal must be rejected. Should leave to appeal be granted? 1. The Appellant urges the Appeal Panel to grant leave to appeal, asserting that the following considerations, taken together, warrant the exercise of that discretion: 1. the undue weight given by the Tribunal to the current accommodation provider's views; 2. the insufficient weight given by the Tribunal to the views of other providers; 3. the undue weight given by the Tribunal to the Guardians' evidence; 4. the insufficient weight given by the Tribunal to the Appellant's evidence. 1. In essence, the Appellant contends that the Tribunal gave undue weight to the negative opinion held by the Subject Person's current accommodation provider about her suitability to act as guardian. The Appellant contends that the Tribunal failed to take into account that the accommodation provider was not independent and had been the subject of a series of complaints made by her to regulatory bodies. 2. She submits that, in contrast, the Tribunal gave insufficient weight to the high opinion of her held by other service providers. 3. In addition, she submits that the Tribunal gave undue weight to the self-assessment of the Original Guardian about her ability to carry out the role of guardian and overlooked her criticisms of the Original Guardian's performance of her role, in particular her failure to critically evaluate the suitability of the Subject Person's current accommodation. 4. The Guardians disagree. They argue that the grounds advanced in support of leave are an attempt to "wrap-up" several unsupported criticisms made of them by the Appellant and to challenge findings of fact made by the Tribunal about the key issue in the review, namely who was able to act as guardian for the Subject Person. 5. The Separate Representative also opposes leave to the appeal being granted. He contends that the available material supports the finding made by the Tribunal that the Original Guardian was able to perform the role as guardian having performed the role "without criticism for 20 years". Consideration 1. In Collins v Urban [2014] NSWCATAP 17 ("Collins"), an Appeal Panel of NCAT noted at [84] that to grant leave to appeal under s 80(2)(b) of the NCAT Act, there must be a "sound basis" for granting leave. The Appeal Panel stated that an appellant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at, or that there was a bona fide challenge to an issue of fact. Ordinarily, it will only be appropriate to grant leave to appeal in matters that involve: (a) issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; or (c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) the Tribunal having gone about the fact-finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed, (Citations omitted) 1. In SAB v SEM and Ors [2013] NSWSC 253 at [7]-[10], White J emphasised the need to take account of the protective character of the jurisdiction, when exercising the power to grant or withhold leave to appeal from a decision of one of NCAT's predecessor Tribunals, the Guardianship Tribunal of NSW, emphasising that the welfare and interests of the person with disabilities is to be given "paramount consideration". 2. We are not persuaded, as suggested by the Appellant, that the Tribunal naively approached the assessment of the respective abilities of the Appellant and the Guardians to act as guardian and deferred to the views of the current accommodation provider. The reasons reveal that the Tribunal acknowledged the Appellant's many positive qualities vis-a-vis her role in relation to the Subject Person together with the recommendation made by the Subject Person's GP that she be appointed guardian. Nonetheless, the Tribunal found that she was unlikely to be able to act as guardian at this time because of her lack of objectivity, evidenced for example, by signing off on correspondence addressed to the Tribunal as "[the Subject Person] and [the appellant]". 3. It cannot reasonably be argued that the finding that the Guardians were able to act as the guardians was against the weight of evidence. 4. None of the factors listed in Collins, which might warrant granting leave, apply to the decision under appeal. The grounds identified by the Appellant as warranting the grant of leave are, in effect, an expression of disagreement about the facts found by the Tribunal and the ultimate conclusion it reached. The Tribunal went about its role as fact finder in an entirely orthodox manner. It correctly stated and applied the relevant statutory tests. While the decision under appeal is of great importance to the parties, it raises no issue of general principle or importance and is confined to the specific facts of the case. 5. The circumstances do not warrant the exercise of the discretion to grant leave to appeal. Leave is refused. Orders 1. The appeal is dismissed. 2. Leave to appeal is refused. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 December 2020