Supreme Court New South Wales Medium Neutral Citation: AS by her tutor SS v NSW Public Guardian [2021] NSWSC 889 Hearing dates: 19 July 2021 Date of orders: 22 July 2021 Decision date: 22 July 2021 Jurisdiction: Equity - Protective List Before: Robb J Decision: See [67] for orders to separate questions. The Court orders that the plaintiff's summons is dismissed. Catchwords: CIVIL PROCEDURE — Protective jurisdiction — Appeals from Guardianship Tribunal — Where the plaintiff appealed the decision of the Guardianship Division of NCAT on 11 grounds — Whether any of the appeal grounds comprised questions of law — Whether any question of law involved an error on the part of the Tribunal — Where the Court found that only one appeal ground comprised a question of law, and found that that appeal ground did not involve an error on the part of the Tribunal — Whether the plaintiff should be granted leave to appeal on a ground other than a question of law — Where the Court declined to grant that leave and consequently dismissed the appeal Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Guardianship Act 1987 (NSW) Cases Cited: C v W [2015] NSWSC 1774 W v G [2003] NSWSC 1170 Category: Principal judgment Parties: AS by her tutor SS (plaintiff) NSW Public Guardian (defendant) Representation: Counsel: AS by her tutor SS (self-represented) (plaintiff) A Rose (defendant) Solicitors: NSW Crown Solicitors (defendant) File Number(s): 2021/90494 Judgment 1. The Guardianship Division of the New South Wales Civil and Administrative Tribunal (the Tribunal) first made orders regarding AS on 30 April 2020, when it was asked to provide consent to a medical procedure for her at St Vincent's Hospital. 2. It is sufficient to note that AS is a 43-year-old woman who has a number of serious medical conditions and a long-standing diagnosis of paranoid schizophrenia, cluster B personality traits and substance abuse. 3. AS' parents, CS and AS, live in Perth and her sister, SS, lives in Sydney. 4. On 9 June 2020, the Tribunal made a guardianship order for AS, and appointed SS as her guardian and CS as her alternate guardian under the Guardianship Act 1987 (NSW) for six months, to make decisions about AS' accommodation, services, healthcare, legal services and consent to medical and dental treatment. The order was made on the application of SS and CS. 5. On 23 July 2020, the Tribunal made a financial management order for AS and appointed the NSW Trustee and Guardian (NSW TAG) as financial manager on the application of SS and CS. 6. On 2 November 2020, the Tribunal made an order in respect of AS appointing the NSW Public Guardian as the guardian of AS for four months. The Tribunal made the order as part of an end of term review, as well as a review requested by a consultant psychiatrist from Caritas, where AS was under psychiatric and medical care. 7. On 4 November 2020, CS made an application to review that decision. On 20 November 2020, the Tribunal declined to review the order made on 2 November 2020. On 15 February 2021, an appeal to the Appeal Panel of the Tribunal was dismissed. 8. On 8 February 2021, CS made a further application to review the guardianship order. It was on that date that a separate representative was appointed for AS. 9. On 1 March 2021, a further application to review the guardianship order was made by an NDIS Specialist Support Coordinator. 10. The Tribunal conducted a hearing on 15 March 2021 of the applications made by CS and the NDIS Specialist Support Coordinator, at the same time as the end of term review. The Tribunal made further orders under the Guardianship Act, which included the following: The guardianship order for [AS] made on 02 November 2020 has been reviewed. The order now is as follows: 1. The Public Guardian is appointed as the guardian. 2. This is a continuing guardianship order for a period of 12 months from 15 March 2021. 3. This is a limited guardianship order giving the guardian custody of [AS] to the extent necessary to carry out the functions below. 1. The relevant functions are set out in order 4, and the conditions to which the appointment is subject are set out in order 5. 2. The hearing that took place in the Tribunal on 15 March 2021 involved a contest as to whether CS should be appointed the guardian, or whether the appointment should continue in favour of the Public Guardian. 3. The present proceedings were commenced by summons filed on 31 March 2021, in which AS is named as plaintiff and the Public Guardian is named as defendant. 4. The summons was filed by SS in the name of AS, relying upon a Queensland form of appointment of enduring guardian dated 6 February 2020, apparently made by AS in favour of CS and SS. 5. On 26 April 2021, Lindsay J, the Protective List judge, made an order that the NSW TAG be granted leave to appear in the proceedings as amicus curiae. 6. On 10 May 2021, Lindsay J made an order that SS be appointed as tutor for AS in these proceedings. 7. Lindsay J made a note of the material that would be relied upon by AS in support of the appeal as being limited to the summons, the reasons of the Tribunal under challenge in the appeal, and the affidavit of SS affirmed on 22 March 2021. 8. The transcript of the proceedings on that date includes an acknowledgement by SS that she did not propose to tender on the appeal any transcript of the hearing that took place in the Tribunal. 9. On 19 July 2021, the Court conducted a hearing in accordance with the following order made by Lindsay J on 16 June 2021: 2) ORDER, subject to further order, that the following questions be heard and determined separately from the hearing and determination of any other question arising in the proceedings: a. Whether any of the appeal grounds specified in the summons filed on 31 March 2021 comprise questions of law; b. Whether any question of law specified in the summons involves an error on the part of the Tribunal; c. Whether the plaintiff should be granted leave to appeal on a ground other than a question of law. 1. Clause 14(1)(b) of Schedule 6 of the Civil and Administrative Tribunal Act 2013 (NSW) provides in respect of appeals to this Court from the Tribunal: (1) A party to proceedings in which an appealable Division decision is made may appeal to the Supreme Court against the decision— … (b) in the case of any other kind of decision—as of right on any question of law, or with the leave of the Court, on any other grounds. 1. The summons seeks the following orders: 1. In the event an Appeal of Right is contested, Leave be granted to Appeal the Decision of the NSW Civil and Administrative Tribunal, Guardianship Division 2. Decision of the NSW Civil and Administrative Tribunal, Guardianship Division, is set aside in substitution for Order 4 below 3. [CS] (Plaintiff's Mother) be instated as Private Guardian for the Plaintiff for the Functions formally ordered under Public Guardianship 4. Declaration affirming the ongoing powers and authorities of the Power of Attorney over [AS] to the Enduring Guardians for the function decisions not under Guardianship Orders. 5. Costs 6. Any other order as the Court sees fit 1. The appeal grounds set out in the summons are as follows: 1. The Guardianship Tribunal erred in failing to consider the evidence to properly apply and effect the principle set out in Section 15(3) of the Guardianship Act 2015 (NSW); 2. The Guardianship Tribunal did not place sufficient weight on the evidence that the Plaintiff wanted her mother to be her legal Private Guardian; 3. The Guardianship Tribunal did not place sufficient weight on the evidence that the Plaintiff's mother was a fit and proper person to hold the position of the Plaintiff's Legal Private Guardian in accordance with the relevant Guardianship Act sections applicable to the assessment of her mother's suitability for Guardianship; 4. The Guardianship Tribunal erred in holding it was inappropriate to appoint the Plaintiff's mother as the Plaintiff's Private Guardian because of an unfounded suggested conflict between the Plaintiff and the Plaintiffs mother, who was at the hearing before the Guardianship Tribunal, a Mrs [CS]; 5. The Guardianship Tribunal erred by failing to give proper weight to the fact that the Plaintiff wanted her mother, a family member, to be her Private Guardian when deciding whether or not to appoint the Plaintiff's mother as her Private guardian in preference instead to appointing a Public Guardian; 6. The Guardianship Tribunal erred by failing to give proper weight to the evidence submitted by the Plaintiff's mother in being assessed appropriately against the relevant thresholds relevant the assessment of her mother's character and suitability under the Guardianship Act sections; 7. The Guardianship Tribunal erred by failing to give proper weight to the evidence submitted by the Plaintiff's sister, [SS], in being assessed as continuing to discharge her role and involvement in any administrative management of matters related to the Plaintiff under her Enduring Guardianship function, which Enduring Guardianship functions are performed independent of the Plaintiff's mother and her involvement; 8. The Guardianship Tribunal erred by failing to give proper weight to the evidence of the Plaintiff's mother regarding the unnecessary ongoing involvement of the Public Guardian in the decisions around the Plaintiff's accommodation, services, health care and medical and dental needs in circumstances where that accommodation and those needs were already being heavily managed by the Plaintiff's mother and sister without need for a Public Guardian role involvement. 9. The Guardianship Tribunal erred by failing to give proper weight to the evidence of the Plaintiff's significant carer, Mr Gavin Cubitt, advocating for the Plaintiff's wishes to be respected and that the Plaintiff's mother was a suitable person of character and a family member who would be an appropriate person to be appointed guardian. 10. The Guardianship Tribunal erred in its understanding of the law relevant to the ongoing powers of an Enduring Guardian whilst a Public Guardianship, Limited Functions, Order was on foot (namely Section 6I and Section 21(2) and (2A) of the Guardianship Act 2015 (NSW)); 11. The Guardianship Tribunal erred in failing to make proper enquiry into whether actual verifiable evidence could be presented with certainty that any conflict of interest in relation to the management of the affairs of and guardianship of the Plaintiff by the Plaintiff's sister, [SS], and mother [CS], and erred in procedural fairness in placing undue weight on unsubstantiated allegations of conflict of interest that were unfounded at law nor in actual evidenced effect. 1. At the hearing, SS was given leave to appear for and make submissions on behalf of AS. The Court received comprehensive written submissions from SS dated 26 May 2021. The Public Guardian was represented at the hearing by counsel, and provided written submissions to the Court prepared by different counsel dated 19 May 2021 and 9 June 2021. 2. The NSW TAG appeared at the hearing by leave, but elected not to make any submissions to the Court. 3. It will be convenient to record at this point that SS took no issue with the correctness of the Tribunal's determination that it was appropriate in all of the circumstances to make a guardianship order in respect of AS. The only question is whether the Tribunal wrongly appointed the Public Guardian when it ought to have appointed CS: see the Tribunal's reasons recording an agreement to that effect at [38]. 4. Question (a) of the order for separate questions made on 16 June 2021 raises the issue of whether any of the appeal grounds specified in the summons involve questions of law. 5. I respectfully adopt the following observations made by Lindsay J in C v W [2015] NSWSC 1774 (which I have abbreviated): [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. [43] 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: (a) 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 (b) a more recent elaboration 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. … [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]: … 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]–[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 321 at 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. 1. It will be convenient to refer to the eight types of error of law identified in Prendergast v Western Murray Irrigation Limited by the numbers given to those types by the Appeal Panel. 2. It is to be noted that, in her oral submissions, SS appeared to acknowledge that many of the grounds of appeal may not have been expressed in a way that satisfies a test for the existence of an error of law, because she asserted that the real problem with many parts of the Tribunal's reasons was that the Tribunal failed to provide proper reasons (Prendergast No 1). This change of position was introduced without notice, and is not consistent with the wording of the summons. It would not be fair to the Public Guardian to permit SS, on behalf of AS, to challenge the decision of the Tribunal on this ground at this late stage. In any event, with due respect to SS, I did not follow her attempt to change from complaints that the Tribunal had failed to give proper weight to various aspects of the evidence to complaints that the Tribunal had failed to provide proper reasons. 3. Although the complaints were expressed in slightly different terms, appeal grounds 2, 3 and 5 to 9 are to the effect that the Tribunal failed to give proper weight to some alleged fact or the evidence. A complaint that a tribunal has failed to give proper weight to some aspect of the evidence in its decision-making process is a complaint about the tribunal's reasoning in determining a question of fact. The complaints do not go so far as to say that there was no evidence to support a particular finding of fact (Prendergast No 7) or that the particular finding of fact was so unreasonable that no reasonable decision-maker could make it (Prendergast No 8). The formulation of these two types of error of law in the fact-finding process by a tribunal demonstrate how relatively extreme the flaw in the fact-finding process must be before it will be treated as an error of law. 4. These particular complaints do not fall within the other types of error of law identified in Prendergast. Consequently, separate question (a) must be answered in the negative in respect of these appeal grounds. 5. Appeal ground 1 is a complaint that the Tribunal failed to consider the evidence to properly apply and effect s 15(3) of the Guardianship Act. Section 15(3) provides: (3) A continuing guardianship order appointing the Public Guardian as the guardian of a person under guardianship shall not be made in circumstances in which such an order can be made appointing some other person as the guardian of the person. 1. An appointment by the Tribunal of the Public Guardian contrary to this provision would be prohibited by the Guardianship Act. However, the prohibition is only in force if, in the particular circumstances of the case, there is some other person who "can be" appointed instead of the Public Guardian. SS' complaint is that the Tribunal failed to consider the evidence to properly apply the statutory prohibition. There is some uncertainty about whether this is a claim that the Tribunal failed to consider the prohibition, which would be, at least, a Prendergast No 5 type error of law. Alternatively, the complaint may accept that the Tribunal applied the correct legal principle, but its process of reasoning based upon its consideration of the evidence was incorrect, which would be an error of fact and not an error of law. 2. The best way to resolve this uncertainty, without becoming confused by pointless technical distinctions, is to consider the reasoning of the Tribunal on this issue. 3. The Tribunal's reasons in respect of the determination of who should be appointed as the guardian of AS start at [87]. At the inception of its consideration, the Tribunal correctly referred to the legal effect of s 15(3) of the Guardianship Act, so it is entirely clear that the Tribunal properly directed itself as to the mandatory legal test that it had to apply. 4. The Tribunal noted, at [88], that it was able to appoint guardians with different decision-making authority, and at [89], the Tribunal set out the requirements in s 17(1) that must be satisfied before a private person can be appointed as a guardian. It is not necessary to set out the requirements of pars (a) and (b) of that subsection, because the Tribunal accepted that CS satisfied those requirements. Paragraph (c) requires that the person must be "both willing and able to exercise the functions conferred or imposed by the proposed guardianship order". There was no doubt about CS being willing. The issue was whether she was "able". 5. The Tribunal considered what was involved in a private person being "able" to act as guardian at [90]-[92]. By reference to appropriate authority, the Tribunal noted that the person must be "able to exercise the functions in accordance with the section 4 principles of the Act", and must be "able to demonstrate insight and explain plans for how to act as guardian objectively and without conflict of interest". Importantly, at [92], the Tribunal identified, by reference to W v G [2003] NSWSC 1170 at [25], that the Tribunal must be satisfied "that the appointment will result in the policy considerations and principles set forth in the Act being given effect". 6. The Tribunal thus acknowledged that the expression "able" in s 17(1)(c) of the Guardianship Act required more than mere physical ability, but instead required that the proposed guardian could carry out all of the functions of guardianship in accordance with the letter and the policy of the Guardianship Act. 7. The submissions made by SS on the issue of why ground 1 involved an error of law are found at pars 14 to 20 of her written submissions. The substance of those submissions (apart from generally agreeing with the statement of principle made by the Tribunal in its reasons) is that the Tribunal failed "to distinguish any evidence identifying any compelling unsuitability of the Plaintiff's mother to be her legal guardian" (par 17). SS continued by submitting that the Tribunal "further failed to articulate in its Decision any evidential basis the NCAT Tribunal relied upon that compelled preferential appointment (sic) the Public Guardian over the Plaintiff's own mother as the legal guardian". 8. Referring to the decision of Windeyer J in W v G, SS submitted that it was not sufficient to justify a finding that CS was not "able" because there was a "contest" about whether a particular family member was suitable to be appointed as guardian. SS submitted, at par 19, that the decision of the Tribunal to reappoint the Public Guardian "largely centred around concerns of a 'contested view' of various third-party care and accommodation supports and services raised by the Plaintiff's mother, which is not a proper ground not to have appointed the Plaintiff's mother her Private Guardian". SS submitted at par 20 that the Tribunal erred in law "in placing too much weight on third-party evidence of concerns about the Plaintiff's mother potentially having differing opinions and views on decisions relevant to the Plaintiff's care, accommodation, supports and medical treatments, which evidence was significantly lacking in specificity or completely absent to sustain inferences concluded by the NCAT Tribunal". 9. It must be noted that, in her reference to W v G, SS emboldened certain parts of the extract from the judgment, but did not emphasise: [26] … On the other hand if the Tribunal considered the evidence established that such a decision was likely not to be in the interests of the person under guardianship then the person who would make such a decision would not be a person who could properly be appointed under s 15(3)… 1. At [93]-[115] of its reasons, the Tribunal gave separate consideration to the views of AS, CS, SS, and then others who had expressed views on the subject, including the barrister appointed by the Tribunal as the separate representative of AS, concerning the appropriate person to be appointed as the guardian of AS. The Tribunal then set out its consideration and findings at [116]-[125]. It is clear from the Tribunal's reasons that it understood the terms and meaning of s 15(3) of the Guardianship Act, and it appears from the submissions made by SS that the complaint in appeal ground 1 is that the Tribunal did not correctly assess the evidence and made the wrong choice in continuing the appointment of the Public Guardian. That is not an error of law, but a challenge to the decision made by the Tribunal on the facts. 2. Appeal ground 4 is a complaint that the Tribunal appointed the Public Guardian "because of an unfounded suggested conflict between the Plaintiff and the Plaintiff's mother". This could be a Prendergast No 7 error of law, if the use of the word "unfounded" should be understood as a complaint that there was no evidence of the suggested conflict. 3. The viability of this ground of appeal must be considered in the light of the following findings of the Tribunal: 118 The Tribunal is satisfied that [CS'] personality is generally compatible with [AS'], that she has no undue conflict of interest at present, and that she is willing to be appointed as guardian. The issue for the Tribunal is whether she is able to perform the role". 1. The Tribunal did not find that there was a conflict of interest between CS and AS, within the meaning of s 17(1)(b) of the Guardianship Act, and it did not find that there was a personality conflict between the two persons. What the Tribunal did find, at [120], is "that [CS] demonstrated a lack of insight and ability to explain plans for how to act as a guardian objectively and without conflict of interests". This finding expressed the view reached by the Tribunal at [120] that CS' "lack of insight is evident in her inability to acknowledge any shortcomings in the way in which she has previously dealt with differences in opinion or concerns about [AS'] care and support; her inability to make any suggestions about how she might approach things differently in the future; her continued heavy reliance on [SS]; and her defensive approach to opinions that differ from her own". 2. The first observation to be made about appeal ground 4 is that it is misconceived, because the Tribunal did not find that there was a conflict between AS and CS. The second observation is that, to the extent that the Tribunal found that there was an apparent deficiency in CS' ability to act as AS' guardian, it arose out of her inability to acknowledge any shortcomings in the way in which she had previously dealt with differences in opinion or concerns about AS' care and support. This was a finding of fact made by the Tribunal. It was based upon the Tribunal's consideration of the evidence. There is no basis for an assertion that there was no evidence to support the finding. 3. It will be convenient to deal with appeal ground 11 out of order, as its subject matter is related to that of appeal ground 4. The ground is that the Tribunal erred in failing to make proper enquiry into whether actual verifiable evidence could be presented with certainty that any conflict of interest by SS and CS existed, and did not provide procedural fairness because the Tribunal placed undue weight on unsubstantiated allegations of conflict of interest that were unfounded at law and on the evidence. 4. I consider that this appeal ground raises no more a question of law than does appeal ground 4. While a failure of the Tribunal to afford procedural fairness is a Prendergast No 4 error of law, the alleged placing of undue weight on unsubstantiated allegations does not in principle amount to a failure to afford procedural fairness. Apart from the repeated misconception concerning the finding by the Tribunal of a conflict of interest, it is clear that this appeal ground is a complaint about the process of reasoning of the Tribunal on questions of fact, and is not an error of law. 5. Appeal ground 10 is a complaint that the Tribunal erred in its understanding of the law relevant to the effect of the making of a guardianship order on the powers of a person appointed by the person the subject of the order as enduring guardian. I accept that, in principle, any such error by the Tribunal would be an error of law, in so far as it would depend upon the proper meaning of s 6I of the Guardianship Act. It would be a Prendergast No 3 type error of law. 6. As the only appeal ground that I accept raises in principle an error of law is appeal ground 10, it will only be necessary to consider separate question (b) ordered on 16 June 2021 in respect of that appeal ground. That question is whether the question of law involved an error on the part of the Tribunal. 7. It will first be appropriate to set out s 6I(1) of the Guardianship Act: (1) A guardianship order made in respect of a person who has appointed an enduring guardian operates to suspend, for the duration of the order, all authority of the enduring guardian to exercise a function under the appointment. 1. Subsection (1) states in blanket terms that the guardianship order "operates to suspend, for the duration of the order, all authority of the enduring guardian to exercise a function under the appointment". That wording is clear and unambiguous, so that the effect of the order is to suspend "all authority" under the appointment of enduring guardian. Lindsay J in C v W (above) at [12] stated this effect of s 6I as if it were obvious, as it is. 2. Not only is the interpretation by the Tribunal of the effect of s 6I correct, but even if the contrary conclusion were arguable, a consideration of the Tribunal's reasons shows that any error did not infect the Tribunal's reasoning concerning the orders that it ultimately made. 3. The significance of the appointment of enduring guardian by AS of CS and SS is considered at [56], [59] - [63] and [80] of the reasons. The context is the careful consideration by the Tribunal of which functions should be given to the guardian, in respect of such matters as accommodation, authorising others to carry out actions in relation to AS, healthcare, services and restrictive practices. In a number of places, the Tribunal observed that CS and SS had claimed, on a number of occasions and in various contexts, that they were authorised to make decisions for AS because of their appointment under the appointment of enduring guardians. SS had sent the appointment of enduring guardians to the St Vincent's Hospital treating team and AS' general practitioner. There was potential for ongoing confusion about where the authority lay to make relevant decisions about AS. While it is true that, at [63], the Tribunal stated its conclusion that the effect of the appointment of a guardian would be that authority under an appointment of enduring guardians would be suspended, the Tribunal neither made an order to that effect, nor based its decision to appoint a guardian for AS on that conclusion. All the Tribunal did in that respect was to decide to appoint a guardian because of the uncertainty that it had found to exist by reason of CS and SS having claimed authority under their appointment as enduring guardians. The uncertainty was a reason why the Tribunal appointed a guardian. The Tribunal thought the appointment would remove the uncertainty, because authority under the enduring guardian appointment would be suspended, but even if that understanding proved to be false, that would complicate the exercise of the guardian's powers, but would not be a reason not to appoint the guardian. 4. Consequently, not only did the Tribunal not make an error of law in relation to the suspension of the appointment of enduring guardians, but the issue was immaterial to the orders actually made by the Tribunal, even if its view of the law was arguably wrong. 5. Prayer 4 sought by AS in the summons is a declaration affirming the ongoing powers and authorities of the power of attorney to the enduring guardians for the function decisions not under guardianship orders. That is not relief that arises out of any appeal from the orders made by the Tribunal. It may be that this Court has jurisdiction, in properly constituted original proceedings, to make a declaration of right as to whether a party who has been appointed as enduring guardian of a person the subject of a guardianship order may exercise a function given to that party under the appointment of enduring guardian but not given to the guardian by the guardianship order. It is not necessary to consider that question. It is not a matter that arises on the appeal, and, at the least, the persons who claimed the right to exercise the function would have to be parties to the proceedings. 6. The last question that arises for consideration is separate question (c) made on 16 June 2021, being whether AS should be granted leave to appeal on a ground other than a question of law. 7. I am satisfied that AS should not be granted leave to appeal from the orders of the Tribunal. 8. As noted by Lindsay J in C v W (above) at [44], if leave is to be granted, the Court generally needs to be satisfied that there is a question of principle or policy, or a manifest error in the decision or the decision-making process under review. 9. I am satisfied that the Tribunal clearly understood its role and the approach that it was required to adopt. It adequately reviewed all of the evidence and gave properly considered reasons. The Tribunal exercised a proper balance in considering the evidence, and the conclusion that it reached was a rational one that was available on the evidence. There is no proper reason why this Court should grant leave to appeal from the orders of the Tribunal. 10. I consider that the conclusions that the Tribunal reached were entirely justifiable. As the transcript of the hearing before the Tribunal was not put in evidence, the Court is not in a position to know the entirety of the material upon which the Tribunal based its reasons. However, the Court did have the evidence of the St Vincent's Hospital 14 December 2020 discharge summary for AS, which noted that AS had a history of suicidal ideation and that her emotional dysregulation had proved difficult to manage by carers and her previous legal guardian, who was SS. Three different NDIS care providers had withdrawn due to ongoing behavioural management issues. The discharge summary included: … Whilst admitted, the guardianship of [AS] has been transferred to a public guardian, after the treating team, the patient and the previous guardian reached an impasse in which no discharge solution could be agreed upon nor effectively organised. The appointed public guardian then agreed to a discharge plan for [AS] including a behavioural management plan synthesized by a behavioural psychologist and carers organised by DQS. A complex care management plan was devised to guided decisions on future presentations to hospital. 1. The reference to DQS is a reference to Disability Quality Services, who provided short-term accommodation to AS after she was discharged from hospital. By correspondence to the NDIS Specialist Support Coordinator dated 4 January 2021, DQS explained why it had made a decision not to continue to provide services for AS after 20 January 2021. The correspondence included: … Disability Quality Services is running over 15 SIL homes, and we have found [AS'] to be the most challenging, and this is not due to the participant, however the challenging nature of [AS'] associates. DQS has strict policy and procedures across the organisation, and often we found ourselves in situations where we are expected to change our policies to suit the needs of certain family. DQS has been treated in unfair and threatening manner, and we believe if we continue, DQS will be placed in a challenging position, and we do not want to place our organisation at any risk. A few key area of concerns are: – DQS has been required to hire and retain the services of an external contractor, when issues were raised in regards to the continuation of this contract we were met with a number of emails and accusations, including accusing our staff of attempting to sabotage [AS'] long term viability in community residential care. – DQS management staff have received excessive communication demanding decisions be altered to suit family despite the allocation of a Public Guardian, this resulted in a delay in discharge meaning [AS] was released just before Christmas only to need to be transferred to the initial alternate accommodation. – Medication were delivered to the property without consultation with DQS Team by a family member, this led to possible medication errors and required a Staff member to attend the property and conduct a medication review whilst not scheduled to work. – Whilst in a meeting with key stakeholders [SS] directly stated that she was not willing to follow DQS communication channels and would only communicate with a contractor. – The NDIS has restriction on what can and cannot be billed in Travel, and we are unable to finance the long distance travel being billed as this is being provided as part of her Community Programming and not being provided as transport between services this means that DQS is required to cover the cost completely out of pocket. – The biggest concern for DQS is that on the 2nd of January in direct violation of the NSW health directive for Residential Facilities [SS] Attended the Property after being told that the visitors needed to be restricted, again this was met with negative family interactions, and despite being informed by [SS] herself that she would be following PPE guidelines of NSW Health she attended the property without wearing a facemask. [AS] had already been diagnosed with a respiratory infection on the 29th of December and is classified as high risk for infection. Whilst we have no concerns in regards to working with [AS], we cannot continue to work with [AS] given the current working relationship with the family is so strained. 1. I have not attempted to set out all of the relevant evidence, as that is not the task of this Court, but it is to be noted that the Tribunal said at [119] that there "can be no disagreement that [AS'] welfare and interests are not served by further instability or conflict regarding her accommodation and support circumstances". It was in this context that the Tribunal made its observations about CS' inability to act as a satisfactory guardian because of her lack of insight and her inability to acknowledge any shortcomings in the way in which she had previously dealt with differences in opinions or concerns about [AS'] care and support. Significantly, the Tribunal said at [122]: Secondly, the Tribunal considers that the stakes for [AS] are too high to risk another breakdown in the relationship with her support services. [CS] will continue to be dependent on [SS] for information about the service provision – in her written submission she said she would have a "minimal engagement' approach. Given the dynamics between [CS] and [SS] the Tribunal considers it very unlikely that [CS] would be able to address and stabilise a situation if [SS] expresses she is dissatisfied with it. Another breakdown in relationship requiring another change in service provider, another move, another support coordinator – are all foreseeable risks, and none of these are consistent with [AS'] interests and welfare. 1. The Tribunal concluded at [124] that, as it was not satisfied that CS met the requirements to be appointed guardian for AS with any functions, there was no private person available to be appointed guardian, and accordingly the Tribunal appointed the Public Guardian with all of the functions of the order. 2. The Tribunal was entitled on the evidence before it, so far as that evidence has been disclosed in these proceedings, to make the findings and the orders that it made. 3. The application made by the Public Guardian was an order that AS' summons be dismissed. The Public Guardian did not ask for an order for costs against AS and I will assume that no such order is sought, unless my Associate is advised to the contrary. 4. The order of the Court in respect of the separate questions is: 1. The questions the subject of the order for separate determination made on 16 June 2021 are answered as follows: 1. The only appeal ground that raises a question of law is appeal ground 10. 2. The Tribunal's reasons and decision did not contain any error in respect of the question of law the subject of appeal ground 10. 3. The plaintiff should not be granted leave to appeal on any of the appeal grounds for which leave to appeal is necessary. 1. Consequently, the Court makes the following additional order: 1. The plaintiff's summons is dismissed. ********** 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: 28 July 2021