Supreme Court New South Wales Medium Neutral Citation: Antonio Di Liristi v NSW Public Trustee and Anor [2021] NSWSC 1347 Hearing dates: 28 May, 27 August & 8 September 2021 Decision date: 22 October 2021 Jurisdiction: Equity - Expedition List Before: Sackar J Decision: See [160]-[165] Catchwords: ADMINISTRATIVE LAW — Particular administrative bodies — NSW Civil and Administrative Tribunal — Appeal against two decisions of the Guardianship Division the NSW Civil and Administrative Tribunal APPEALS — Procedural fairness — Whether the Tribunal's rejection of the plaintiff's request for an adjournment was a breach of the rules of procedural fairness — Whether the Tribunal failed to comply with the requirements of s.38(5) of the Civil and Administrative Tribunal Act 2013 (NSW) by failing to give the plaintiff a reasonable opportunity to be heard such as to amount to a constructive failure to exercise the jurisdiction under s 25(2)(a) and (b) of the Guardianship Act 1987 (NSW) — Whether the Tribunal in limiting the presentation time of the plaintiff's case was a denial of procedural fairness — Whether there was no evidence to support a finding of the Tribunal — Whether rejecting certain evidence denied the plaintiff a fair hearing Legislation Cited: Administrative Appeals Tribunal Act 1975 (Cth) s.33 Adoption Act 2000 (NSW) s.126 Civil and Administrative Tribunal Act 2013 (NSW) ss.3, 36, 38, 51 Family Provision Act 1972 (WA) Guardianship Act 1987 (NSW) ss.4, 15, 17, 14, 25 High Court Rules 2004 (Cth) r.41.08.3 Cases Cited: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Bruce v Cole (1998) 45 NSWLR 163 Chi v Roger Fuller Pty Limited [2018] NSWCATAP 95 Clark v State of New South Wales (No 2) [2006] NSWSC 914 Clements v Independent Indigenous Advisory Committee [2003] FCAFC 143 Cook v ASP Ship Management [2009] FCAFC 113 Di Liristi v Matautia Developments Pty Ltd [2020] NSWSC 634 Ekermawi v Administrative Decisions Tribunal of New South Wales [2009] NSWSC 143 Flightdeck Geelong Pty Ltd v All Options Pty Ltd [2020] FCAFC 138 Gadelrabb v Liristis [2012] NSWSC 756 Galea v Galea (1990) 19 NSWLR 263 Hackett (a pseudonym) v Secretary, Department of Communities and Justice (2020) 379 ALR 248; [2020] NSWCA 83 Hamod v State of New South Wales [2011] NSWCA 375 Kioa v West (1985) 159 CLR 550 Liristis v Candalori [2017] NSWSC 354 Liristis v Director of Public Prosecutions (DPP) [2018] NSWCCA 196 Liristis and Ors v Danic [2008] NSWSC 1314 MacPherson v The Queen (1981) 147 CLR 512; [1981] HCA 46 Moleirinho v Talbot & Olivier Lawyers Pty Ltd [2014] WASC 65 MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392 Ng v Health Care Complaints Commission [2017] NSWSC 53 R v Gidley (1984) 3 NSWLR 168 Re Minister for Immigration and Multicultural Affairs & Anor; Ex parte Miah (2001) 206 CLR 57 Re UF [2017] NSWSC 437 Refugee Review Tribunal, Re; Ex parte Aala (2000) 204 CLR 82 Stead v State Government Insurance Commission (1986) 161 CLR 141 Stone v Braun [2015] WASCA 103 Sullivan v Civil Aviation Safety Authority (2014) 226 FCR 555 Warkworth Mining Limited v Bulga Milbrodale Progress Association Inc [2014] NSWCA 105 Weti v Minister for Immigration and Citizenship [2007] FCA 1531 ZCA NSW Trustee and Guardian [2016] NSWCATAP 192 ZFJ v ZEY [2018] NSWCATAP 76 Category: Principal judgment Parties: Antonio Di Liristi (plaintiff) NSW Public Trustee (first defendant) NSW Public Guardian (second defendant) Representation: Counsel: Ms S Kaur Bains, M Auld (plaintiff) Mr R Bhalla (1 & 2 defs) Solicitors: Darby Jones (plaintiff) Crown Solicitors NSW (defendants) File Number(s): 2020/268337 Publication restriction: n/a Judgment 1. By his amended summons dated 15 December 2020 (the "Summons"), the plaintiff (Antonio Di Liristi, aka Antonio Di Liristis, Tony Liristis, and Antonio Liristis) appeals two decisions of the Guardianship Division of the NSW Civil and Administrative Tribunal (the "Tribunal") dated 4 August 2020 that concern guardianship orders made in respect of his parents: 1. Tasos Liristis (NCAT file number: 2019/00158342) to reappoint the Public Guardian (the second defendant) as his guardian; and 2. Rita Liristis (NCAT file number: 2019/00157463) to reappoint the Public Guardian as her guardian, as well as two decisions of the Tribunal dated 16 October 2020, in respect of the same individuals (with the same file numbers), dismissing an application made by the plaintiff to revoke the financial management orders (in favour of the NSW Trustee and Guardian, the first defendant) made on 1 August 2019. 1. In his Summons, the plaintiff raised five questions of law in respect of the guardianship orders decision. First, whether the Tribunal's rejection of the plaintiff's request for an adjournment was a breach of the rules of procedural fairness. Second, whether the Tribunal failed to comply with the requirements of s.38(5) of the Civil and Administrative Tribunal Act 2013 (NSW) ("CAT Act"), by failing to give the plaintiff a reasonable opportunity to be heard such as to amount to a constructive failure to exercise the jurisdiction under s.25(2)(a) and (b) of the Guardianship Act 1987 (NSW) ("Guardianship Act") having regard to s.15(3), s17 (1), s17(3) and 14 of the Guardianship Act. Third, whether the Tribunal in limiting the presentation time of the plaintiff's case to 30 minutes in chief and 5 minutes for final submissions failed to act in accordance with s.38(6)(c) of the CAT Act such that the plaintiff was denied procedural fairness. The plaintiff did not press ground 4, claiming there was no evidence for an adverse finding about his relationship with his brother (T.52/8-9), or ground 5, the bias ground (T.21/47)). 2. The plaintiff also raised two questions of law in respect of the financial management decision. First, whether there was any evidence to support the Tribunal's finding that the appointment of the NSW Trustee and Guardian would be preferable to a private financial manager in deterring creditors from launching action to recover outstanding debts. Second, whether the Tribunal in rejecting the email of the 16th October 2020 at 12.30am and other emails containing evidence on the basis that it was not received in accordance with the Tribunal's directions denied the plaintiff a fair hearing. 3. Pursuant to cl.14(1)(b) of Sch. 6 of the CAT Act there is a right to appeal any such decision on a question of law or, only with the leave of this court, on any other grounds. 4. The plaintiff relied solely on the Affidavit of Antonio Di Liristi 27 May 2021 (T.15/49-T.16/1). 5. Initially, the first and second defendants (the NSW Trustee & Guardian, and the NSW Public Guardian respectively) filed submitting appearances. The matter came before this court on 28 May 2021 for hearing. During or subsequent to the hearing, which dealt only with the questions of law grounds for appeal, it became apparent to the court that it would be assisted by having a contradictor. Accordingly, after further directions hearings on 2 & 9 June 2021, the first and second defendants filed substantive appearances and were given an opportunity to respond to the submissions advanced on behalf of the plaintiff. Background Facts 1. What appears below is very largely an agreed chronology. 2. The guardianship and financial management orders were made in respect of the plaintiff's parents. The original guardianship and financial management orders were made on 1 August 2019 by the Tribunal (A Britton, Principal Member, Dr M J Wroth, Senior Member (Professional) and R M Fela, General Member (Community)). Those orders were not the subject of any appeal. 3. As noted by the Tribunal in its 2019 decisions (tabs 5 & 6, supp ct book) at [2]: The South Western Sydney Local Health District ('the Local Health District') has applied to the NSW Civil and Administrative Tribunal ("NCAT") for guardianship and financial management orders to be made in respect of Mr and Mrs Liristis. In addition, each of their sons, Tony and Kostas Liristis, have made separate applications seeking guardianship and financial management orders in respect of each of their parents. Mr Kostas Liristis filed his applications on 9 July 2019. Mr Tony Liristis [the current plaintiff], who was joined as a party on 11 July 2019, filed his applications two days before the hearing. 1. In 2019, each of the applicants supported the making of guardianship and financial management orders. The only issue in dispute then was the identity of the guardian and financial manager: [3], 2019 decisions (tabs 5 & 6, supp ct book). The Tribunal went on to set out the positions of the parties: [3] … The Local Health District proposes that the Public Guardian and the NSW Trustee and Guardian ('the Trustee') be appointed as guardian and financial manager of Mr and Mrs Liristis. In his initiating application made to NCAT, Mr Kostas Liristis proposed that he be appointed as guardian and manager of each of his parents. Subsequently, he withdrew that nomination and advised that he now supported the appointment of the Public Guardian and the Trustee for each of his parents, 'subject to conditions'. Mr Tony Liristis opposes the appointment of the Public Guardian and the Trustee and urges the Tribunal to appoint him to act as the guardian and manager of each of his parents. The separate representative appointed for Mr Liristis, Ms Currie of counsel, opposes the appointment of Mr Tony Liristis as Mr Liristis' guardian or manager. Likewise, the separate representative for Mrs Liristis, Ms Kaiti of counsel, opposes the appointment of Mr Tony Liristis as her guardian or manager. 1. The 2019 hearing was conducted at Bankstown Hospital on 1 August 2019, including a closed session with only Mr & Mrs Liristis, their separate representatives, a nurse, an interpreter and two security guards. As a result of the 1 August 2019 hearing, the Tribunal appointed the Public Guardian as guardian in respect of both Mr & Mrs Liristis (for one year), and the NSW Trustee & Guardian as financial manager for both of them as well. 2. In the course of its consideration of the matter before it, the Tribunal in 2019 made several adverse findings in respect of the plaintiff: [65] – [66], [92] - [95], [97] – [98] & [100], 2019 decision re: T Liristis (tab 6, supp ct book). Guardianship Matter 1. On 1 August 2019, the NSW Civil & Administrative Tribunal (NCAT) made orders in relation to Tasos Liristis (the father) and Rita Liristis (the mother) as follows: 1. Appointing the Public Guardian as the Guardian for a period of twelve months from 2 August 2019 (Tabs 1 and 2, Supplementary Court Book): 2. Appointing the NSW Trustee Guardian as the Financial Manager (Tabs 3 and 4, Supplementary Court Book). 1. On 25 June 2020 NCAT sent to the plaintiff the notice of listing for the end of term review of the Guardianship Orders (page 313, supplementary court book). Pursuant to s.25(2)(b) of the Guardianship Act the Tribunal is required to review the Guardianship Orders made on 1 August 2019. 2. On 21 July 2020, the plaintiff made an application to be joined as a party to the end of review of the Guardianship Orders made in relation to the mother and the father (Tabs 17 and 18 Supplementary Court Book). Directions hearing 1. On 22 July 2020 NCAT held a directions hearing in relation to the end of review Guardianship matter and made orders as follows (Tab 7 Supplementary Court Book): 1 Mr Tasos Liristis is to be separately represented. 2 Mr Kostas Liristis is joined as a Party. 3 Mr Antonio Liristis is jointed as a Party. 4 The request by Antonio Di Liristis to represent Mr Tasos Liristis is refused. 5 By close of business 29 July 2020, all parties and the separate representative are to give to the Tribunal all material on which they rely in electronic form. 6 By close of business 29 July 2020, any person seeking to be appointed as the guardian for Mr Tasos Liristis must give to the Tribunal a statement setting out their view and any supporting material about their ability to undertake the role of guardian. The statement is to include: 1. A description of any conflict, real or perceived, between their interests (for example, property, assets) and those of Mr Tasos Liristis. 2. Details of any loan (or similar dealings) made by them to Mr Tasos Liristis. 3. Details of any loan (or similar dealings) made by Mr Tasos Liristis to them. 4. Their history of any charges or convictions for criminal offences. 4. Their history of bankruptcy.(sic) 5. Details of any civil proceedings involving Mr Tasos Liristis and the person seeking to be appointed as guardian. 6. Their proposal/s for decisions about Mr Liristis' accommodation, health care, medical treatment and services in the even that another guardianship order is made for Mr Liristis and the person is appointed as his guardian. 1. On 22 July 2020 NCAT made similar directions in respect of the mother's end of review Guardianship matter (Tab 8 Supplementary Court Book). 2. On 24 July 2020 NCAT sent to the plaintiff by email a copy of the NSW Trustee and Guardian's "Financial Management Report" dated 22 July 2020 in relation to the father. 3. On 27 July 2020 NCAT sent to the plaintiff by email a copy of the NSW Trustee and Guardian's "Financial Management Report" dated 23 July 2020 in relation to the mother. 4. On or about 28 July 2020, the plaintiff sent by email a copy of the written submissions marked Annexure A and Annexure B to NCAT (Tabs 20-21 Supplementary Court Book). 5. On or about 28 July 2020, the Public Guardian sent by email to NCAT, reports in relation to the mother and father (Tab 20-21 Supplementary Court Book). 6. By 29 July 2020 all parties and separate representatives in relation to the end of review of the Guardianship Orders were to give to the Tribunal all material on which they relied in electronic form (Tabs 7 and 8 Supplementary Court Book). Nothing further was received from the plaintiff by that date. 31 July 2020 – plaintiff filed an application for "request to review a Guardianship Order" 1. On 31 July 2020, the plaintiff made an application for "request to review a Guardianship Order" in relation to his mother and father pursuant to s.25(2)(a) Guardianship Act (Tab 19 Supplementary Court Book). 4 August 2020 hearing 1. On 4 August 2020 from 9.30am to 1pm NCAT heard both: 1. the end of term review of Guardianship Orders (see Tp 50.22, tab 14 Supplementary Court Book); and 2. the application filed by the plaintiff on 31 July 2020 requesting a review of the Guardianship Orders (Tp 51.26- Tp 52.26, tab 14 Supplementary Court Book). 1. The hearing was conducted by telephone given the Covid-19 restrictions. 4 August 2020 hearing (transcript at Tab 14 Supplementary Court Book, same as at Tab 7, affidavit of plaintiff 27 May 2020) 1. At T.50/22 the Tribunal stated that "today's hearing… the purpose is to conduct the end of term review of the Guardianship Orders that were made for Mr and Mrs Liristis in 2019". … now in terms of this review I conducted a directions' hearing in this matter on the 22nd of July 2020 and made a number of directions ... that included joining Antonio Liristis as a party to those end of term review …" (T.50/38, Tab 14 Supplementary Court Book). 2. The Tribunal then continued at T.50/45 to say "… subsequent to that directions hearing, on Friday the Guardianship of NCAT received, I understand from Antonio Liristis , two new applications about his parents, both seeking – making a request to review both Guardianship Orders." The Tribunal Member noted that "the issues that he's raised in these applications for review, can be dealt with in the hearing today because they raise the kinds of issues that we were going - I was going to have to determine anyway" (T.52/7, tab 14, Supplementary Court Book) and then put to the personal representative and Kostas (the plaintiff's brother), "unless anybody has an objection, … given that they raise matters that are relevant really to the end of term review as well ... and who the Guardian should be if one is appointed, I am of the view that I will have those matters before me and deal with the issues and will proceed. Does anybody have an objection to that?" (See T.51/26, tab 14 Supplementary Court Book). Both Kostas Liristis and the separate representative told the Tribunal Member they had no objection. The Tribunal Member then said "ok, so we will deal today with the end of term review of the Guardianship Orders for both Mr and Mrs Liristis, as well as the request to review those Guardianship Orders lodged by Mr Antonio Liristis on Friday, 31 July" (See T.52/26, tab 14 Supplementary Court Book). 3. The Tribunal Member at T.52/31 told the parties that she would deal with the hearing for both matters concurrently. The Tribunal Member then at T.52/42 said that she was aware that Mr Antonio Liristis was seeking to replace the Public Guardian and that she would hear from him and the other participants at the appropriate time. 4. The Tribunal Member at T.54/19 then told everyone present how she intended to deal with the hearing. She stated that she wished to start with a consideration of the Guardianship Order, the review of the order and consider whether Mr and Mrs Liristis continue to have a disability that impairs their decision making capacity, to such an extent that they are either totally or partially incapable of making their decisions on their own behalf. 5. At T.54/31 the Tribunal Member then set out that if she was satisfied on the issue she would then still need to consider whether she should make the Guardianship Order, which required her to consider the views of Mr and Mrs Liristis, the view of their carers as well as other matters. 6. The Tribunal Member then at T.54/46 set out that if she was satisfied with all those matters then she should consider who to appoint as Guardian, and she noted that given that the plaintiff was seeking to be appointed as Private Guardian, whether he met the criteria under the Guardianship Act. The Tribunal Member at T.55/4 noted that if there is no one that she considers suitable then she could appoint the Public Guardian as the parents' guardian. Section 15(3) of Guardianship Act provides that the Public Guardian shall not be appointed where an order can be made appointing some other person as the Guardian. 7. At T.55/12 the Tribunal told those present at the hearing that she would propose to work through each of the tests she had identified and that she would give participants and parties time limits because there were quite a number of people on the line and she would need to be able to provide a time period where people would be able to make submissions or give evidence. 8. From T.55/21-T.70/39 the Tribunal Member then started considering whether the mother and the father were in need of a Guardian to make decisions on their behalf. In that process the Tribunal heard from Mr Kambas, the personal representative for the mother and the father; Ms Guo from Bexley Nursing home; Gina Polutele from the Dementia Support Coordinator at Bexley Nursing home; the father through an interpreter; Ms Win from the Lilian Wells nursing home; and the plaintiff. 9. At T.70/30 the Tribunal Member asked the plaintiff what his view was for the Guardianship Order to be made. The plaintiff at T.70/34 and 70.39 accepted that a Guardianship Order was required. 10. From T.70/46 to T.81/23 the Tribunal Member was considering what specific functions should be given to the Guardian, that is, accommodation, health care and medical treatment and access conditions. In that respect the Tribunal heard from the plaintiff, Kostas, the Separate Representative, as well as from the Public Guardian and the people from the nursing homes. Who to appoint as Guardian 1. From T.81/29 the Tribunal Member told the participants that she was now ready to move to the issue of who to appoint as a Guardian and noted that the plaintiff wished to be appointed as the Guardian to the mother and the father. At T.81/47 the Tribunal Member then invited the plaintiff to address her on the matters dealt with in section 4 and section 17(1) of the Guardianship Act. At T.82/20 the Tribunal Member then raised the issue that in Directions Hearing on 22 July 2020 she had made orders that any person seeking to be appointed as the Guardian must give to the Tribunal a statement setting out their view and any supporting material. At T.82/41 the Tribunal asked if the plaintiff had filed any material as she didn't have any material from the plaintiff. At T.82/47 the plaintiff said he had sent an email "yesterday". The plaintiff at T.83/2 also said he had sent in material on 3 August 2020 at "2.22pm". 2. At T.83/5-12 in response to the Tribunal's question that the material was to be provided by 29 July 2020 the plaintiff said that he only had four working days to prepare the material and it was just impossible. 3. At T.83/15, the Tribunal said that this was the first time that the plaintiff had raised any difficulties with the orders made on 22 July 2020. The plaintiff denied this statement was correct. 4. The Tribunal Member then at T.83/43 indicated that who should be appointed as Guardian was an important issue and that she would give the participants a time period to make submissions as the time was 11.40am. At T.84/3 the Tribunal Member gave the plaintiff 30 minutes to make any submissions. (The other parties/separate representative were given 10 minutes each.) 5. At T.86/1 the plaintiff asked the Tribunal Member whether she had received a 10-page document headed 'Austral (indistinct) Shelter'. The Tribunal Member said she did not have that document. 6. At T.86/29 the Tribunal Member invited the plaintiff "to address me now as you said you would do, and take me through the material you say you have provided?" 7. At T.86/39 the plaintiff asked the Tribunal Member to "take a short adjournment, a 5 minute adjournment" to see whether the Tribunal had the material. At T.87/8 the plaintiff repeated the request for a short adjournment for the Tribunal to go and look for the material. At T.87/11 the Tribunal said "I may well do that but right now, what I am asking you to do and I am giving you the opportunity to do it, is to address me on the issues that you would like to support your wish to be appointed as the Guardian. … and if I decide to take an adjournment after that I will do so, so now is your opportunity so please proceed." 8. At T.88/5 the plaintiff read out what he had written in his application filed 31 July 2020 and then at T.89/39 said to the Tribunal that he was not going to read any further information because it would wipe out his 30 minutes. 9. At T.90/14 the plaintiff alleged that the Tribunal member had discussed the matter with another Tribunal member (Anne Britton) and the President of the Tribunal, Armstrong J, and of prejudging his application. 10. At T.91/21, the plaintiff alleged that the Tribunal is known "as a kangaroo court by many" and that it is "a disgrace to the administration of justice." 11. At T.91-T.92/1, the Tribunal Member told the plaintiff that she "had stopped [his] time". 12. At T.93/5 the plaintiff told the Tribunal that "Whatever I tell you, you've already prejudged it. You haven't even bothered to read my evidence. You've listened to rubbish and concocted stories from people who have a financial interest. …" and at T.93/14 he asked the Tribunal "… to get on with your job, make the finding, so we can appeal it, because unlike the deputy - the Deputy President of NCAT who ignores a Supreme Court Judge, a former president of NCAT, the Honorary Justice Wright, finding in my favour, NCAT didn't bother to see that, so I can't make any legal proceedings until this kangaroo court makes its order, and I'm just waiting for you to make your order so then the appropriate justice can be served in the administration of justice, because the NCAT is a kangaroo court." 13. At T.94/39 the Tribunal Member asked the plaintiff "So Mr Liristis, I'd like you to really focus on your application to be appointed as the Guardian, but before putting the timer back on so you can continue with that". The Tribunal Member also asked if the plaintiff wanted the Member to recuse herself, to which the plaintiff replied "I know you can't bring an impartial but under no circumstances am I asking you to recuse yourself": T.94/45. Material the plaintiff told the Tribunal he had sent 1. At T.95/46 the plaintiff refers to emails he said were sent at 8.21am on the 4th of August 2020 attaching a document headed "better health dementia". At T.96/3 the plaintiff also referred to sending the Tribunal a letter from a friend of his father who had known his father for a very long time. Further, at T.96/7 the plaintiff referred to an email he said was sent at 8.40am on 4 August 2020 with part of his home, bruises on his father, photos of his father's teeth and photos of his father's demeanour. 2. The plaintiff again at T.96/42 asked the Tribunal to take a 5-minute adjournment to get the evidence he said he had sent to the Tribunal. 3. At T.97/12 the Tribunal Member again said she had stopped the timer and asked the plaintiff to explain the relevance of recordings he said he had sent to the Tribunal. At T.98/3 the Tribunal Member asked the plaintiff "I think you said of your father's discussion, is it your - are you saying that the relevance of that is that it shows that he's able to express a view about these issues?" The plaintiff answered "Yes he - yes he can." 4. At T.99/1 the plaintiff said that he only had 5 mins left and he could not address the tribunal on any of the matters given the time constraint. At T.99/21 the Tribunal Member told the plaintiff "Okay, so you've got three minutes left. Do you want to use that up? Mr Antonio Liristis?". The plaintiff answered "No." 5. At T.99/38 Kostas Liristis addressed the Tribunal. 6. At T.102/3 the Tribunal Member stated "I did just want to note that the registry have checked the Tribunal's registry records and there are - there is no record of receipt of material provided yesterday by Mr Antonio Liristis, of any email contact with the registry, so unfortunately Mr Antonio Liristis, it's not before me because it doesn't appear to have been received in the registry." 7. The Tribunal Member at T.102/15 then proceeded to ask the Separate Representative's views. Beginning at T.102/28 the Separate Representative (speaking of the plaintiff and his brother) said "… they're two brothers who I'm sure both love their parents, I have no doubt about that, but unfortunately they hate each other" and then, "I think that Tony's battle to be guardian, it's commendable because …. he'd like to look after his parents, but the question is, is he suitable given their heavy requirements, … the reality is that they both require quality - in the situation of Rita, she requires 24 hour care. I don't know what Tasos is like without medication, but he requires a lot of care." 8. At T.105/3 the Tribunal member asked the Separate Representative whether he had received any material from the plaintiff. The Separate Representative said he had checked and he had not. 9. At T.106/17 the plaintiff (who, with the other parties, were given 5 minutes each for final submissions "because there has been a lengthy period of time for this hearing") then raised again that material had been sent to the Tribunal; the importance of preserving family relationship and culture and that his father had lost 34 kilos and he could not eat the food. 10. At T.109/27 (around 1pm) the Tribunal said "what I am going to do today is to reserve my decision on both matters, both the end of term reviews and Mr Antonio Liristis's application. I need some further time to consider the evidence and the submissions that have been made, so I am not going to make the decision right now, but I will provide the orders that I make to the parties as soon as possible. 11. On 4 August 2020 from 3.07pm until 3.16pm the Tribunal received a series of forwarded emails from the plaintiff (see Exhibit P1). 12. On the same day, 4 August 2020 (anytime from 1pm to midnight), NCAT made orders that there be a continuing Guardianship Order for a period of 2 years and the Public Guardian be appointed as the Guardian (Tabs 9 and 10 Supplementary Court Book). The orders were issued on 5 August 2020. 13. On 15 September 2020 the plaintiff filed an appeal to this Court in respect of the orders made on 4 August 2020. 14. On 2 October 2020, NCAT provided its written reasons for its decision as to the guardianship orders made on 4 August 2020 (Tabs 10 and 11 Supplementary Court Book). Financial Management Matter 1. On 11 August 2020 the plaintiff applied to NCAT for review or revocation of Financial Management Orders in respect of his parents (Tabs 32 and 33, Supplementary Court Book). 2. On 23 September 2020 the Tribunal in the review of the Financial Management Order matter held a direction's hearing and made orders as follows: Kostas Liristis is joined as a party. Tasos Liristis is to be separately represented. The application raises issues as to possible misconduct or negligence on the part of the current Financial Manager, and in view of his financial vulnerability it is appropriate that Mr Liristis be separately represented in order to assist in investigating and assessing these claims. Subject to 5, all parties to give to the Tribunal and the separate representative for the person (if any), the material they rely upon by 02 October 2020. Subject to 5, all parties to give to the Tribunal and the separate representative for the person (if any), the material in reply by 09 October 2020. NSW Trustee and Guardian to give to the Tribunal and the separate representative for the person (if any), a Financial Management Report in the same form as its Financial Management Report dated 22 September 2020, updated as at 9 October 2020, by 12 October 2020. The proceedings is listed for hearing on Date: 16 October 2020 Time: 9.30am Address: NCAT, Guardianship Division, Level 6 John Maddison Tower, 86-90 Goulburn Street, SYDNEY NSW 2000 The Applicant is to provide to the Tribunal a written summary of his arguments by 9 October 2020. No documentary evidence provided by any party later than the day required under the previous orders will be admitted for use at the hearing." (Tabs 22 and 23 Supplementary Court Book) 1. On 23 September 2020, the Tribunal emailed the plaintiff copies of the NSW Trustee and Guardian's Financial Management Reports dated 22 September 2020. 2. On 25 September 2020 the Trustee and Guardian emailed to the plaintiff a copy of the Financial Management Report dated 22 September 2020. 3. On 15 October 2020, the Tribunal emailed the plaintiff copies of the NSW Trustee and Guardian's Financial Management Reports dated 6 October 2020. 4. On 16 October 2020 from 9.30am to 1.45pm the Tribunal held the hearing to consider the plaintiff's application to review or revoke the Financial Management Order dated 1 August 2019 (Tab 28 and 29 Supplementary Court Book). 5. On 16 October 2020 at 12.30am the plaintiff sent to the Tribunal a document headed "Submissions in Evidence for the Hearing" on 16 October 2020 (Tab 15 to the affidavit of Antonio Di Liristi of 27 May 2021). 6. At the hearing on 16 October 2020 the Tribunal Member, at T.19/7-T.19/15 and T.19/28 (at tab 31, Supplementary Court Book) said that he would not admit the evidence in the email received at 12.30am on 16 October 2020 as it was not provided in accordance with the directions orders made on 23 September, but that to the extent they were submissions, the plaintiff could speak to them: T.19/29. At T.19/21 the plaintiff said "They're submissions". 7. On 16 October 2020 the Tribunal made orders dismissing the application to review or revoke the Financial Management Order (Tab 26 and 27 Supplementary Court book). 8. On 10 November 2020 the Tribunal provided written reasons for its decision made on 23 September 2020 (Tab 25 Supplementary Court Book). 9. On 13 November 2020 the Tribunal provided written reasons for its decision to dismiss the application to review or revoke the financial management order (Tabs 28 and 29 Supplementary Court Book). 10. On 13 November 2020 the Tribunal amended the orders made on 16 October 2020 by adding an order that the email from the applicant sent to the Tribunal on 16 October to be kept "confidential" (Tabs 26 & 27). The Nature of Tribunal Hearings in the Guardianship Division 1. Hearings in the Guardianship Division are governed by: 1. S.36 of the CAT Act (the "guiding principle"); 2. S.38 of the CAT Act; and 3. S.4 of the Guardianship Act. 1. Pursuant to s. 4(a) of the Guardianship Act, the Tribunal has a duty when exercising functions under that Act with respect to persons who have disabilities to observe the principle that "the welfare and interests of such persons should be given paramount consideration". 2. In Re UF [2017] NSWSC 437, White J explained, at [25] that: … Subsection 38(2) of the Civil and Administrative Tribunal Act provides that the Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice. Subsection 38(4) provides that the Tribunal is to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms. A Procedural Direction issued by the Tribunal, 'NCAT Guardianship Division Procedural Direction 1' notes (at para 7) that in the Guardianship Division: 'The Tribunal conducts its proceedings in an investigative inquisitorial manner rather than in an adversarial manner.' [26] This is consistent with the traditional role of courts and tribunals exercising a protective jurisdiction. 1. Whilst the particular procedural direction referred to by his Honour is no longer in force, there has been no legislative change that would necessitate any change to that procedure, either in the Tribunal, or in a court exercising a protective jurisdiction. See also ZFJ v ZEY [2018] NSWCATAP 76 at [127]. 2. In ZCA NSW Trustee and Guardian [2016] NSWCATAP 192, the Tribunal's Appeal Panel described the reality of the nature of hearings in the Guardianship Division (at [34]): The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice': NCAT Act, s 38(1). The Tribunal is also 'to act with as little formality as the circumstances of the case permit …': NCAT Act, s 38(4). We understand the practice in the Guardianship Division of the Tribunal to be that parties are not sworn or affirmed and evidence is given in response to questions from the Tribunal. Formal cross-examination is rare and did not occur in these proceedings. [35] The fact that the appellant was not offered the opportunity to crossexamine any of the witnesses does not necessarily mean that she was denied procedural fairness. We are satisfied, on the basis of the transcript and the parties' submissions, that the appellant knew the substance of the allegations against her and was given the opportunity to adduce evidence and make submissions rebutting the adverse evidence. 1. There is nothing in the CAT Act or the Guardianship Act that suggests that s.38 of the CAT Act should be given any narrow or limited construction in the Guardianship Division, beyond the requirement that, however it proceeds, it gives paramount consideration to the welfare of the persons the subject of the proceeding (Guardianship Act s.4). To the extent that any notions of procedural fairness conflict with this paramount consideration, the paramount consideration prevails. Or, perhaps more accurately, the contingencies of any notions of procedural fairness are adapted to give effect to that paramount consideration. 2. More generally, the meaning of s. 38(2) of the CAT Act (that the Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit) was considered in Ng v Health Care Complaints Commission [2017] NSWSC 53 per Davies J. The court cited with approval the Full Court of the Federal Court in Sullivan v Civil Aviation Safety Authority (2014) 226 FCR 555 ("Sullivan"), where it considered the similar provision in s. 33 of the Administrative Appeals Tribunal Act 1975 (Cth). In Sullivan, the Full Court, (Flick and Perry JJ, with whom Logan J substantially agreed) said: [116] What procedure the tribunal decides to follow in any particular case, and whether the tribunal decides to either apply or inform itself by reference to the common law rules of evidence, is a matter which has been left by the legislature to the tribunal itself to determine. The manner in which the tribunal proceeds cannot, with respect, be pre-determined by any generally expressed 'principle of law' which is to be applied to some indeterminate fact findings which may be characterised as 'grave' or 'serious'. [117] To endorse the general 'principle of law', it is respectfully concluded, would only serve to confuse the fundamental division of functions between the tribunal as a body vested with administrative power and the function of this court when entertaining an 'appeal' from a decision of the tribunal. This division is respected in the statutory limitation upon the subject matter of an 'appeal' from a tribunal decision to a 'question of law': s 44(1) of the Administrative Appeals Tribunal Act… 1. An analogy can be made with s.126 of the Adoption Act 2000 (NSW) which allows the Court in adoption hearings to: act on any statement, document, information, or matter that may, in its opinion, assist it to deal with the matter of the proceedings or before it for determination whether or not the statement, document, information or matter would be admissible in evidence. 1. The Court of Appeal (Basten, Leeming and McCallum JJA) in Hackett (a pseudonym) v Secretary, Department of Communities and Justice (2020) 379 ALR 248; [2020] NSWCA 83 recently commented on the degree of flexibility that must therefore be adopted in such proceedings (see, e.g. [161]). It could be said that a similar level of flexibility is required here. Procedural Fairness 1. A denial of procedural fairness is an error of law and such a denial raises a question of law (Clements v Independent Indigenous Advisory Committee [2003] FCAFC 143 per Gray ACJ and North J at [8] and Gyles J dissenting in obiter at [67]). 2. The requirements of procedural fairness depend on the circumstances of the case, the nature of the inquiry, the rules under which the relevant tribunal or decision-maker is acting and the subject matter that is being dealt with: Russell v Duke of Norfolk [1949] 1 All ER 109 at 118; Re Minister for Immigration and Multicultural Affairs & Anor; Ex parte Miah (2001) 206 CLR 57 at 94, 98; Kioa v West (1985) 159 CLR 550 at 584–585 per Mason J and 609–610 per Brennan J. 3. The legal principles with respect to procedural fairness were addressed exhaustively in Warkworth Mining Limited v Bulga Milbrodale Progress Association Inc [2014] NSWCA 105 from [34] (per Bathurst CJ, Beazley P and Tobias AJA): Warkworth contended that it was denied procedural fairness in a number of respects. Each of the matters raised will be dealt with in relation to the particular ground of appeal under which the contention is made. It is useful, however, to first state the principles relating to procedural fairness, a concept which has application in a wide range of circumstances. As the authorities indicate, it is sometimes not difficult to determine that a particular circumstance requires procedural fairness to be accorded. The difficult question, more often, is in determining what is required in the particular circumstance to satisfy the obligation and whether those requirements have been satisfied in the given case. It is in this sense that Gleeson CJ in Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6; 214 CLR 1 commented, at [37], in respect of procedural fairness that: 'Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.' Insofar as procedural fairness relates to the issues raised in the grounds of appeal, the statement of Mason J in Kioa v West [1985] HCA 81; 159 CLR 550 at 587 is of particular relevance. As his Honour stated: '… recent decisions illustrate the importance which the law attaches to the need to bring to a person's attention the critical issue or factor on which the administrative decision is likely to turn so that he may have an opportunity of dealing with it.' (citations omitted) This passage was endorsed by McHugh and Gummow JJ in Ex Parte Lam, at [81]. See also SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152 at [32]. On the same question, Mark Aronson and Matthew Groves, Judicial Review of Administrative Action, 5th ed (2013) (Thomson Reuters) at 527 have said: 'A fair hearing presumes that the parties to it are fully informed of, and able to respond to, the relevant issues. That is not possible if disclosure is inadequate. Inadequate disclosure can also reduce the accountability, acceptability and quality of decision-making.' Whilst the preceding comments were made in reference to administrative decision-making, procedural fairness is also "an essential characteristic of judicial proceedings": RCB v The Honourable Justice Forrest [2012] HCA 47; 247 CLR 304 at [42]. However, as the High Court there observed, "its content is dependent upon the nature of the proceedings and the persons claiming its benefit". In this regard, the requirement under the Court Act, s 38(1), that proceedings in the Court's Class 1 jurisdiction are to be brought with as little formality as possible, does not abrogate the fundamental requirements of procedural fairness in those proceedings: see RTA v Peak [2007] NSWCA 66 at [15] and [150]. A failure to afford a party procedural fairness will constitute an error of law: see Clements v Independent Indigenous Advisory Committee at [8] per Gray ACJ and North J. Where the relevant failure to afford procedural fairness is a failure to consider a substantial claim that has been advanced by a party, there will also be a constructive failure to exercise jurisdiction: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 77 ALJR 1088, per Gleeson CJ at [24], Gummow and Callinan JJ at [27], Kirby J at [87] and Callinan J at [95]. Construing the legal limits of a court's powers to determine whether it has exceeded its jurisdiction in a particular case will involve, at least implicitly, a question of law within the meaning of the Court Act, s 57(1): see RTA v Peak at [15] and [141]-[151]; Kostas v HIA Insurance Services at [23]-[25] per French CJ, [69] per Hayne, Heydon, Crennan and Kiefel JJ. There will be procedural unfairness where information is used by a decision maker in a way that could not reasonably be expected by one party and that party is not given an opportunity to respond to that use: see Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22; 206 CLR 57 at [142] per McHugh J and Muin v Refugee Review Tribunal [2002] HCA 30; 190 ALR 601 at [128]-[134] per McHugh J. Another aspect of procedural fairness was argued in the present case, namely, that where a court determines a matter on a basis that was not in issue or argued in the proceedings, there will have been a denial of procedural fairness: see Stead v State Government Insurance Commission [1986] HCA 54; 161 CLR 141. This is a basic requirement of a fair trial. See also Re Minister for Immigration and Multicultural Affairs; Ex parte Miah in the context of administrative decision-making. That general principle is, however, subject to an important qualification, stated at the practical level, by asking, "Would further information possibly have made any difference [to the decision]?": Stead v State Government Insurance Commission at 145; Re Minister for Immigration and Multicultural Affairs; ex parte Applicant S154/2002 (2003) 77 ALJR 1909 at [28]. An appellate court will not order a new trial where the inevitable result would be that the same order would be made on a retrial. Or, as McHugh J observed in Muin v Refugee Review Tribunal, stating the obverse of this principle, an appellate court should not refuse relief unless it is confident that the breach could not have affected the outcome of the case. In Ucar v Nylex Industrial Products Ltd [2007] VSCA 181, Redlich JA, at [75], identified a further circumstance where relief would be refused, namely, where there is an incontrovertible fact or point of law which provides a discrete basis for the decision which cannot be affected by the procedural unfairness. The Stead v State Government Insurance Commission line of authority deals with the circumstances in which a new trial will be ordered. The same principles apply in respect of this Court's power to remit matters where an error of law has been identified on an appeal under s 57 (or, for that matter, under s 56): RTA v Damjanovic [2006] NSWCA 166 at [112]; Castle Constructions Pty Ltd v North Sydney Council [2007] NSWCA 164 at [123]. We would comment in passing that it is not necessary for the purposes of this matter to decide whether the less stringent test stated in Damjanovic & Sons Pty Ltd v Commonwealth [1968] HCA 42; 117 CLR 390 should be applied." Self-Represented Litigants 1. Bound up with the obligation to act in a procedurally fair manner is the suite of obligations attending the manner in which courts deal with self-represented litigants (MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392). Matters involving litigants-in-person may encounter a number of issues, as identified recently by the Full Court of the Federal Court (Markovic, Derrington and Anastassiou JJ) in Flightdeck Geelong Pty Ltd v All Options Pty Ltd [2020] FCAFC 138 ("Flightdeck") (at [52]): As acknowledged by the High Court in Neil v Nott (1994) 121 ALR 148 at 150; 68 ALJR 509, "[a] frequent consequence of self-representation is that the court must assume the burden of endeavouring to ascertain the rights of parties which are obfuscated by their own advocacy". In addition, litigants-in-person commonly fail to lodge documents in the correct form, observe court formalities and procedures, understand the significance of court processes, put the relevant evidence or law before the Court; and understand the role of the Court in adjudicating the matter. 1. In Hamod v State of New South Wales [2011] NSWCA 375 ("Hamod"), the New South Wales Court of Appeal set out the courts' duty to unrepresented litigants at [309] – [316]. In essence, the overarching duty is to ensure that the trial is fair. The trial judge has an obligation to an unrepresented party to ensure that the unrepresented litigant has sufficient information about the practice and procedure of the court so far as is reasonably applicable for the purpose of ensuring a fair trial. The application of that principle will depend on the circumstances of the case. Also see Ekermawi v Administrative Decisions Tribunal of New South Wales [2009] NSWSC 143 at [53] and Pullin, Newnes and Murphy JJ in Moleirinho v Talbot & Olivier Lawyers Pty Ltd [2014] WASC 65 at [51]. In Stone v Braun [2015] WASCA 103, the Western Australia Court of Appeal found that an applicant had been denied procedural fairness in proceedings pursuant to the Family Provision Act 1972 (WA) where the master failed to alert the applicant to the distinction between evidence and submissions. 2. The judge must put the unrepresented litigant in the position of being able to make an effective choice, however, their duty does not extend to advising on how the litigants' rights should be exercised, giving judicial advice nor conducting the case on behalf of the unrepresented litigant (R v Gidley (1984) 3 NSWLR 168; MacPherson v The Queen (1981) 147 CLR 512; [1981] HCA 46 per Mason J at 534; Clark v State of New South Wales (No 2) [2006] NSWSC 914, cited in Hamod at [312]). Furthermore, a judge is entitled to reprimand a litigant-in-person if they are trifling with the court (Galea v Galea (1990) 19 NSWLR 263 at 283 per Meagher JA, cited in Hamod at [314]). 3. In my view, similar obligations and considerations apply to administrative tribunals. The Submissions of the Parties The Plaintiff's Submissions Decision of the Tribunal in the Guardianship matters 1. The plaintiff argued that he was denied procedural fairness by the Tribunal's refusal to grant him an adjournment of the hearing to enable him to put before it the evidence he said he had filed, which had not reached the Tribunal Member. The plaintiff also argued that the refusal to grant the adjournment resulted in a constructive failure to consider his evidence on the review, such that there was a failure to exercise the function conferred on the Tribunal (per s.38(5)(c) of the CAT Act). 2. The plaintiff submitted that the requirements of procedural fairness depend on a combination of the circumstances of the case, nature of the inquiry, the rules the Tribunal was acting upon and the subject matter of the proceedings. 3. The circumstances of the case included that the plaintiff's parents had already been in aged care for a period of about 12 months and the NSW Public Trustee had been managing their public affairs. Therefore, there was no urgency in the Tribunal dealing with the matter. 4. The plaintiff was a litigant in person seeking the review of the orders in relation to his parents. The fact that he has been a litigant in a number of cases does not lead to the inference that he is aware that if he breaches Tribunal orders he will be prevented from having evidence admitted and considered. 5. The importance of the jurisdiction of the Tribunal was that it acted for the welfare of and in the best interests of the parents. In the context of the Tribunal exercising the protective jurisdiction where the plaintiff expressed concerns to the Tribunal that "the Public Guardian was complicit in the poor management of the care of his parents" (see [35(7)] of the reasons 4 August 2020) and where there was no urgency to determine the matter, procedural fairness required the Tribunal to grant a short adjournment so the material could be located and to ensure all relevant material was disclosed to the Tribunal to enable it to determine all the relevant issues: s.38(6)(a) CAT Act; s.4 Guardianship Act. 6. The nature of the inquiry by the Tribunal was to review the appointment of the NSW Public Guardian, a government agency, who is considered to be the "guardian of last resort", where the plaintiff, a son, was offering to be a guardian. 7. The Tribunal in conducting the review was required to have regard to the following rules of the Tribunal: 1. Section 3(d) of the CAT Act required the Tribunal to ensure that it resolve the real issues justly, quickly, cheaply and with as little formality as possible; 2. Section 38(5)(c) and s38(6) of the CAT Act required the Tribunal to ensure that the parties have a reasonable opportunity to be heard and to ensure that all relevant material was disclosed to the Tribunal to enable it to determine all of the relevant facts in issue in the proceedings; 3. Clause 5(1) of Schedule 5 of the CAT Act which provides that the Tribunal is "under a duty" to observe the principles referred to in s 4 of the Guardianship Act. 4. Section 17 of the Guardianship Act. 1. The subject matter of the proceedings was for the Tribunal to review the guardianship order which had been made on 1 August 2019 in respect of the plaintiff's parents. 2. Taking all of these factors into consideration, the plaintiff submitted that the Tribunal's reasons showed error in not granting an adjournment in the situation where it had a discretion to decide whether or not to grant the adjournment (see s.51 CAT Act; Weti v Minister for Immigration and Citizenship [2007] FCA 1531 at [29]). The Tribunal's reasons for refusal were at [35] of the Reasons and demonstrate that this discretion was miscarried to the point that the plaintiff was denied a fair opportunity to present his case given the following matters: 1. The plaintiff had told the Tribunal he had filed the evidence, and any difficulties in communication between the Tribunal and its registry did not mean that the plaintiff had not filed this material: see [35(1) to (6)] of the Reasons. In light of the evidence at Tab 21, pp 187 of the Exhibit ADL-5, the Court can infer that material was sent by the Plaintiff and received by the Tribunal on 3 and 4 August 2020, prior to the hearing commencing. 2. The plaintiff told the Tribunal the evidence was relevant to the issues in the matter and without seeing this material the Tribunal could not assess the relevance and ought to have accepted it may be relevant: see [35(7)] of the Reasons. The Tribunal made a presumption about the effect of the evidence and that it would not have made a difference without the benefit of actually looking at the specifics of the evidence sought to be brought to the Tribunal's attention. 3. The parents had been in care in separate facilities for 12 months at the time of the hearing and there was no suggestion by the Defendants that there was such urgency that an adjournment could not be taken: see [35(8)] of the Reasons. Further, the Tribunal reserved at the conclusion of the hearing on 4 August 2020 and made a decision two months later on 2 October 2020. During the time the decision was reserved, pursuant to s.25(6) of the Guardianship Act, the previous guardianship order remained in force until the completion of the review, further reinforcing a lack of urgency. 4. The opportunity the Tribunal gave to the plaintiff was inadequate to ensure a fair hearing, as the Tribunal decided the plaintiff would be limited to making oral submissions on the question of whether he should be appointed guardian rather than the Public Guardian: see 35(9) of the Reasons. Further, that such submissions be limited in time to 30 minutes in chief and 5 minutes for final submissions: [23] of the Reasons. 5. The Tribunal prevented the plaintiff and for that matter any party from giving any evidence at the hearing. 6. Given, that the Tribunal had to be satisfied of the matters in s.17(1) having regard to the principles in s.4 of the Guardianship Act, the plaintiff was precluded from presenting relevant evidence as to those issues, such that he was effectively prevented from having a fair hearing of his application to be appointed a guardian and that the Public Guardian was not the appropriate guardian in this case. 1. Expanding upon the abovementioned point (d), the Plaintiff emphasised s.38(6) of the CAT Act which requires the Tribunal ensure all relevant material is disclosed to it to enable the relevant facts in issue in the proceedings. Section 38(6)(c) allows for the presentation of the respective cases of the parties "to be limited to the periods of time that [the Tribunal] determines are reasonably necessary for the fair and adequate presentation of the cases". 2. The plaintiff submitted that the decision of the Tribunal at [23] of the Reasons to limit the presentation of his case to addressing the Tribunal as to his submissions to 30 minutes in chief and 5 minutes for final submissions was a failure to comply with s.38(6)(c) of the CAT Act as such limitation was not reasonably necessary, denying him a fair hearing. 3. The Tribunal at [23] of the Reasons also placed a limitation on each of the other parties to 10 minutes each as well as 5 minutes for final submissions. The limitation properly understood was not to give evidence but was limited to submissions. 4. The plaintiff submitted that such limitation had the effect that he and the other parties were prevented from putting oral evidence before the Tribunal such that the Tribunal did not have any evidence from which it could form the state of satisfaction referred to in s 17(1) of the Guardianship Act in relation to whether the Plaintiff was an appropriate person to be appointed as guardian in place of the Public Guardian. Noting that the Tribunal had no written evidence before it. 5. Finally, it is sufficient that the denial of procedural fairness deprived the Plaintiff of the possibility of a successful outcome: see Refugee Review Tribunal, Re; Ex parte Aala (2000) 204 CLR 82 at 109 [59] and at 116-7 [80], citing Stead v State Government Insurance Commission (1986) 161 CLR 141 at 147. Decision of the Tribunal in the Financial Management matters 1. The plaintiff submitted firstly that there was no evidence for the finding made at [35] of the Reasons that "the fact of having the NSW Trustee and Guardian appointed as financial manager would, in the Tribunal's view, be more likely to dissuade Mr and Mrs Liristis' creditors from launching action to recover outstanding debts (by giving them confidence that practical and genuine attempts are under way to resolve the Liristis' financial difficulties) that would the appointment of a private financial manager." In relation to the "no-evidence" ground, a decision will be set aside where a decision maker has made a finding of fact without probative evidence to support it or drawn an inference which was not open on the primary facts: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356; Bruce v Cole (1998) 45 NSWLR 163 at 188. 2. The finding at [35] of the Reasons, made without evidence, was clearly relevant in the Tribunal concluding that the NSW Public Trustee remain as financial manager. Therefore, an error of law has been established. 3. The plaintiff also submitted that the Tribunal's refusal to permit him to rely on the evidence filed, albeit late, given the importance of the jurisdiction that the Tribunal was exercising to the welfare and the interests of the parents, informed the requirements of procedural fairness. Given, that the other parties did not complain of any prejudice, the just disposition of the matter required the Tribunal to give the plaintiff a fair opportunity to present his case, which required the plaintiff to be permitted to rely on the evidence. 4. The plaintiff further submitted that the Tribunal did not make provision for him to file and serve reply evidence as to the matters raised in the Financial Management Report. The Report was served on the Plaintiff at 1.42pm the day before the hearing (Tab 15, p 22 of 27 of Exhibit ADL-5). In the email sent to the Tribunal on the morning of the hearing (Tab 15, pp24- 27 of Exhibit ADL-5) the plaintiff sought to adduce reply evidence, the effect of which is that since the appointment of the NSW Trustee and Guardian on 1 August 2019 there has been an increase in expenses whilst there was an asset which could have earned an income, being rent and it was not realised. 5. At the hearing on 16 October 2020, the Tribunal (at [14(1)] denied the plaintiff the opportunity to admit the evidence on the basis they were received late. The plaintiff submitted that this was not a proper basis for rejecting the evidence because the Tribunal in fact had not made provision for filing evidence in reply to the evidence to be filed by the NSW Trustee and Guardian. Therefore he was denied procedural fairness as the Tribunal did not have all the relevant material before it. The Defendants' Submissions The Guardianship matter 1. In relation to the plaintiff's argument that the refusal to grant an adjournment amounted to a denial of procedural fairness, the defendants submitted that, in circumstances were the parties and Tribunal had assembled for a hearing, it was entirely open to the Tribunal to refuse the adjournment in circumstances where its directions had not been followed, and there had been no application in good time by the plaintiff to either vary the relevant direction or seek an adjournment. In coming to this decision, the Tribunal had to weigh up the factors outlined in s.38 of the CAT Act which it did so, also correctly having regard to relevant authorities on the subject (citing [33] Chi v Roger Fuller Pty Limited [2018] NSWCATAP 95). 2. Further, the defendants argued that the Tribunal, in coming to its decision not to grant the adjournment, gave the plaintiff ample opportunity to explain the relevance and content of the materials he had sent late to the Tribunal: NCAT 04AUG20 T.84/47 – T.85/8; T95.34/ – T.9/.8 [tab 14, supp ct book]; [27], 4 August 2020 decision (T Liristis) (tab 11 supp ct book). The Tribunal correctly identified the nature of the material (at [27] 4 August 2020 decision re: T Liristis (tab 11). It was open to the Tribunal in coming to its decision about whether to grant an adjournment to examine the relevance of those materials The Tribunal considered the material but formed a view contrary to the plaintiff's submissions. There was also no explanation given by the plaintiff as to why the materials were not provided to the Tribunal earlier. 3. The Defendant highlighted that at [35(7)] of the decision, the Tribunal stated that the plaintiff "could provide evidence…without delaying the resolution of these proceedings by way of an adjournment". The transcript also revealed that the plaintiff had ample opportunity to present his case but largely chose not to. 4. The defendants submitted that the plaintiff, unlike many litigants-in-person has a lengthy history of appearing for himself in litigation (see, for example, Liristis v Director of Public Prosecutions (DPP) [2018] NSWCCA 196; Di Liristi v Matautia Developments Pty Ltd [2020] NSWSC 634; Gadelrabb v Liristis [2012] NSWSC 756; Liristis v Candalori [2017] NSWSC 354). He was described by Palmer J in Liristis and Ors v Danic [2008] NSWSC 1314 (at [13]) as having conducted a case "as effectively as if he were a lawyer". Therefore, it cannot be said that the plaintiff is an inexperienced litigant who was unaware of the importance of complying with directions, or generally unable to effectively present his case. Nor can it be said that he is so inexperienced that he would have had difficulty explaining his concerns to the Tribunal in lieu of relying upon the documents he had emailed the morning of and the day before the hearing. Further, it is unlikely that the plaintiff would have been confused about the difference between submissions and evidence: NCAT 16OCT20 T.19/21 (tab 31, supp ct book). 5. There was therefore no denial of procedural fairness to the plaintiff in not granting an adjournment and the plaintiff was given the opportunity to give evidence to the issues he wishes to raise (para 35(7), 4 August 2020 decision (T Liristis) (tab 11, supp ct book); NCAT 04AUG20 T46.47, T53.26, T54.13, T55.17, T74.2, T87.16, T90.7, T90.32-34, T109.9 (tab 14, supp ct book). 6. The defendant also submitted that the Tribunal's decision to implement a time limit on the plaintiff's period in which to present his case was not inherently unfair, since that procedure is explicitly provided for in the CAT Act: s. 38(6)(c). It is also a procedure adopted by the High Court: r.41.08.3, High Court Rules 2004 (Cth). The plaintiff had a tendency to veer off into matters that were not relevant to the matters under consideration by the Tribunal that were explained at [43] – [44], 4 August 2020 decision (T Liristis) (tab 11, supp ct book). In that context it was entirely reasonable for the Tribunal to impose some limit. The plaintiff had used his allotted time to complain and make unfounded allegations about the Tribunal members, rather than addressing issues relevant to the matter at hand (Cook v ASP Ship Management [2009] FCAFC 113 at [18]). The financial management decision 1. The defendant addressed the plaintiff's first ground of appeal in this matter which relies upon a purported lack of evidence in respect of the Tribunal's finding at [35] (22 October decision re: R Liristis). The defendant first observed that the Tribunal relied, at least in part, upon evidence given to it by the representative of the NSW Trustee and Guardian: para 28(2)(c), 22 October decision re: R Liristis; NCAT 16OCT20 T.76/8-13; T.83/28-33. Pursuant to s.38 of the CAT Act, it was entirely open to the Tribunal to take full account of that evidence, or information. The representative gave quite extensive evidence and was questioned by the parties: NCAT 16OCT20 T.58-T.101. The defendant secondly submitted that it was open to the Tribunal to take judicial notice of those matters. It should not be controversial to observe that creditors would likely take some comfort from knowing that a person's financial affairs were controlled by an experienced, professional statutory body such as the Trustee & Guardian. To seek evidence to challenge an uncontroversial principle would have been inconsistent with the guiding principle at s.36(1) of the CAT Act (to facilitate the just, quick and cheap resolution of the real issues in the proceedings). 2. The defendant next addressed the plaintiff's second ground of appeal which relates to the Tribunal's decision to enforce compliance with order 8 made at the directions hearing on 23 September 2020, excluding late documentary evidence. The defendant submitted that by the time the plaintiff filed his application for revocation or review of the financial management orders on 11 August 2020, he had recently suffered the consequences of the late filing of material in respect of the guardianship orders hearing and was on notice he would unlikely be able to rely on late materials, further reiterated by order 8. 3. The defendant submitted that the making of order 8 on 23 September 2020 may have been a response by the Tribunal to the attitude of the plaintiff during the directions hearing held that day: as is apparent from the transcript, the plaintiff was combative from the outset and did not assist the Tribunal; he refused to inform the Tribunal about his availability for a hearing: NCAT 23SEP20 T.12/18, and was generally rude and unhelpful: see, for example, NCAT 23SEP20 T.9/49; T.24/23; T.28/28; T.30/18). 4. Despite the materials being filed late, the Tribunal ascertained the content and found that, to the extent that they purported to be evidence, they were irrelevant ([14(3)], 16 October 2020 decision re: R Liristis, and to the extent that they were submissions, the plaintiff was free to make those submissions orally ([14(2)]). Therefore there was no procedural unfairness to the plaintiff. Consideration 1. At each of the hearings there was no dispute that that guardianship and financial orders should be made; the only real issue in both cases was who that should be. 2. So far as the Guardianship hearing on 4 August 2020 is concerned the plaintiff says he was denied procedural fairness by the Tribunal refusing to grant him an adjournment so as to properly consider the materials he had sent and by reason of it setting a time limit on his submissions. 3. It should be noted that the plaintiff's brother was a party to the proceedings and opposed the plaintiff being appointed guardian. The parents were also separately represented and their representative did not support the appointment of the plaintiff as guardian. 4. It is accepted that the plaintiff sent certain materials in breach of the order made on 22 July (that he had by 29 July) file anything he wished to rely upon. 5. The Tribunal refused the plaintiff's application to adjourn the proceedings. In doing so the Tribunal was entitled to consider the attitude of all relevant persons including importantly the persons requiring the services of a guardian, in exercising its discretion on the adjournment application. 6. The Tribunal at [35] of the 4 August 2020 decision in respect Mr T Liristis (tab11,sup ct book), and repeated at [43] of the decision in respect of Mrs R Liristis (tab12), gave it's reasons for refusing the adjournment. 7. The Tribunal gave seven reasons why the adjournment was not granted. They are comprehensive and compelling. Central to the reasoning was the plaintiff's failure to comply with the directions and further his failure adequately to explain why he had been unable to comply with the directions. On the basis of the material it had before it, in my view the Tribunal took all relevant matters into account and was entitled to reach the views it did and refuse the application. It weighed up all relevant factors concerning the plaintiff and other relevant interests. 8. The material the plaintiff sought to deploy was apparently to prove that his parents were mistreated and overmedicated, amongst other things. This material included a letter from a family friend stating he believed the plaintiff had always cared for his parents, pictures of the plaintiff's home, images of his parents' injuries, a guide for the treatment of dementia patients by allied health professionals, and a letter to the court accusing it of containing "wannabe judges" amongst other things. What the plaintiff had in mind was to make the most serious accusations. He had not proposed any expert evidence in support of his assertions and he made no attempt to prove for example when and in precisely what circumstances the photos were taken. 9. The audio recordings which the Tribunal quite specifically considered at [30(7)] was apparently intended to expose the Public Trustee as being somehow complicit in the poor treatment and management of his parents. 10. As the Tribunal pointed out it was not clear when the videos or for that matter the audio files had been made. Mention was also made of the plaintiff having made recordings of nursing staff seemingly without their knowledge or consent. The plaintiff at no time explained when and for how long he had had the materials and why he could not have made them available sooner. 11. It was it seems to me a matter for the Tribunal to decide the extent to which such materials might be relevant. It is clear from the judgment the Tribunal considered the nature and character of the material in determining their relevance. It is also noteworthy that no other party including the parent's representative supported the application for an adjournment. 12. The plaintiff has accumulated an enviable history of litigious outings. He would I am quite certain have understood precisely what his obligations were in terms of timing in relation to any proposed evidence. 13. It is clear that the plaintiff as a serial litigant well understood the procedure, because he specifically acknowledged the rules of evidence (in his words) did not apply in "NCAT", T.90/45. 14. The plaintiff's assertion that the directions to file his material was "impossible" (T.120/10) without the slightest explanation as to why is simply untenable. 15. In any event the Tribunal gave the plaintiff the opportunity to read the materials out he asserted he had sent, T.120. The Tribunal also invited the plaintiff to address on why he should be appointed as the guardian. The plaintiff had it seems consulted with a "senior counsel" about the hearing and his alleged difficulties in complying with the directions but not about explaining why, T.123/20. 16. The plaintiff then proceeded to read from a document he had sent and which contained scandalous and insulting material about the member conducting the hearing and other persons associated with the Tribunal, including its President. The allegations were extremely serious alleging, amongst other things, some form of conspiracy to defeat the plaintiff's claim, T.126/5-40. 17. The plaintiff then foreshadowed an appeal to the Supreme Court for several reasons, including an alleged prejudgment of his case, T.126/40-45. But his insults did not stop there. He proceeded to accuse the member of unfairness, T.128/10-15 and claimed that NCAT was known as a "kangaroo court" and was a "disgrace to the administration of justice", T.128/20-25. 18. He continued at some length about the fact that he just wanted the Tribunal to "get on with your job so we can appeal", T.130/15-18. 19. It is true that some litigants in person need assistance. In this case however the plaintiff as an experienced litigant was giving every indication that he believed he was wasting his time before a Tribunal which was biased and that the exercise he was involved in was token in the extreme as the exercise was "pointless", T.132/35. Rather than wanting a hearing and hence an adjournment to facilitate it, the plaintiff's intemperate language and attitude displayed anything but a desire to be heard by a Tribunal that might be persuaded to appoint him guardian. He stated in terms that it and its members were biased and were not capable or sufficiently qualified to determine the matter. Indeed at one point the plaintiff indicated he did not want any adjournment because he did not want to give NCAT an opportunity to "prepare their case", T.132/1-4. His attitude was belligerent and confrontational and he made no secret of the fact that an unfavourable outcome would be challenged elsewhere, T.143/45. 20. Not once did the plaintiff explain why the materials he had sent the Tribunal were not able to be sent by the due date, 29 July. He knew the rules of evidence did not apply and he was not calling any medical experts. He knew at all times all he was doing was making allegations which apart from his assertions were not capable of being tested and he also knew full well the proceedings were to be informally conducted. When given an opportunity all he wanted to do is to denigrate and traduce the member and the Tribunal more generally and continue his long ongoing disagreements with his brother. 21. He was not in my view denied ample opportunity to say what he wanted and make whatever points he chose. Instead he attacked the Tribunal, the member hearing the matter, his brother and in doing deliberately chose to waste time on abuse, promising in any event to take the matter to the Supreme Court. 22. The imposition of a time limit in all the circumstances was entirely consistent with the nature of the hearing and a reasonable response to the manner adopted by the plaintiff in his approach to his submissions. It was in any event entirely consistent with CAT Act, s.38(6)(c). What is of some considerable significance is that the plaintiff conceded both his parents required a guardian. As I have already said, the whole of the hearing was devoted to only one central question, precisely who. 23. It is clear from the transcript that the member tried unsuccessfully to make allowances despite the time wasting accusations and to explain the relevance of certain matters, by starting and restarting the timer but to no avail, see T.131/28-47, T.132/1-25,T.134/10- 48, T.135/1-35. The member of course applied time limits to others including the plaintiff's brother, T.136/30-35. 24. In fact although the member purported to impose a time limit of 30 minutes it is clear that no doubt in recognition of the plaintiff's irrational and time wasting assertions she from time to time suspended the time running, see, e.g. T.94/39). 25. The Tribunal was entitled to obtain answers to reasonable questions. It was not obliged endlessly even from a litigant in person to entertain abusive and irrelevant submissions. The Tribunal's allocation of time was a matter for it. In my view on the whole of the evidence I am not satisfied the plaintiff's complaints in this regard has any merit. 26. As to the conflict between the brothers, the plaintiff belatedly but appropriately abandoned this as a ground of complaint. The evidence of animosity between the two was well documented and ever present. This is not only clear in its previous findings but also evident at the hearing of 4 August. It was a matter which the Tribunal was entitled to take into account on the question as to whether it was feasible for the plaintiff to act as guardian, given the animosity, of carrying out his role pursuant to s.4(e) of the Guardianship Act. 27. Next, the plaintiff has two grounds of complaint about the financial management orders decision of 16 October 2020. 28. The first complaint is the finding of the Tribunal that having the Trustee and Guardian appointed as financial manager would dissuade the creditors of the parents from launching action to recover outstanding debts. The reason underpinning this finding was that it might be thought creditors would have more confidence in the Trustee and Guardian running the parents' affairs than if they were in the hands of a private financial manager. 29. This finding was it seems based upon evidence and submissions from a representative of the NSW Trustee and Guardian which was open to the Tribunal to accept that situation pursuant to s.38 of the CAT Act, NCAT 16OCT20 T.58-T.101. See also [28(20(c)] of the Tribunal's decision of 16 October and the evidence at T.76/8-13, T.83/28-33. 30. It would be in my view in any event reasonably open for the Tribunal to infer that creditors would be less likely to act precipitously if an entity such as the Trustee and Guardian were managing some person's affairs. Therefore I consider the finding was open given the inquisitorial nature of the hearing and the powers of the Tribunal on matters of evidence. 31. The plaintiff also complains he was denied procedural fairness because, as a result of a directions hearing on 23 September 2020, the Tribunal made an order that no documentary evidence would be received if filed after 2 October and material in reply by 9 October he could not rely upon material sent after the due date. Although the Tribunal did allow the plaintiff to rely upon those materials if they were submissions. Where the rules of evidence do not apply the plaintiff had the benefit of those materials. 32. In somewhat typical fashion the plaintiff was again quite obnoxious at the directions hearing and made a number of disparaging remarks to and about the presiding member to the effect that he was "pathetic", NCAT 23SEP20 T.28/28, and calling the Tribunal member "a disgrace to the legal fraternity", NCAT 23SEP20 T.30/18. He then threatened to take legal action against the Tribunal member personally. His behaviour was totally unacceptable and he must have appreciated he was being deliberately provocative. Apparently a charm offensive is an unknown phenomenon to the plaintiff. 33. But he continued in a similar vein at the hearing on 16 October and the animosity between the plaintiff and his brother was again palpable, e.g. T.242/15-35. Further, "I don't hate my brother, I feel sorry for him, because he's mentally ill", was a comment made by the plaintiff's brother about the plaintiff during the hearing, T.100/35-40. 34. The plaintiff accused the Tribunal member of having been "instructed by Lea Armstrong to give a ruling today. Give your ruling and let's get out of here". Referring to his written submissions he stated "they'll be tendered in the appeal", T.248/30-45. 35. Not content with those remarks he then accused the separate representative for his parents and the Public Trustee of "criminal conduct", T.248/45-50 and his parents' representative as being guilty of professional misconduct and professional negligence, T.250/45-50. 36. What this conduct betrays is the utter lack of any respect the plaintiff had for everyone and anyone at the hearing of 16 October. And it also displays, deliberately or otherwise, a capacity to waste time on vendettas of one sort or another as opposed to addressing the crucial question of his fitness to be a guardian or a financial manager. His behaviour was in those respects breathtakingly self-destructive. 37. It had little effect on the plaintiff for the Tribunal member to request that the plaintiff "stop arguing", T.255/48. 38. Apart from boasting about how old he was when he made his first million at the age of 19 and his 10 million by the age of 30, (T.41/15-20) he then went on to discuss with seeming authority and knowledge the various financial issues before the Tribunal. 39. In my view a careful reading of the transcript exposes that apart from the odd accusation that either the representative or the Public Trustee had stolen money from his parents, (T.78/40-45) it is plain that the Tribunal examined for relevance the various allegations being made by the plaintiff about various expenditures. However when asked about his own financial position in the context of why he should be appointed financial manager for his parents, he was evasive in the extreme, T.106/15-45 and T.107/5-45, T.108/1-45. 40. Culminating in telling the Tribunal member "you just keep your mouth shut…", T.116/1-5, the Tribunal member tried again to stop the brothers behaving badly and the plaintiff accused the member of unfairness in the conduct of the hearing, T.117/25-30. 41. The plaintiff again accused the Tribunal of acting like a "kangaroo court" and announced he was tendering his 27 page submissions as evidence of the incompetency of the "Public Trustee" and that it would be an exhibit in the Supreme Court, T.118/40-45. 42. The Tribunal as it was entitled determined that the materials put forward by the plaintiff would be received as submissions only because of the lateness of their service. 43. In my view therefore the Tribunal was entitled to regulate its procedure given the informal nature of it and accord such evidentiary value to the materials supplied by the plaintiff and as the rules of evidence do not apply the Tribunal is of course entitled to inform itself as it sees fit. 44. It must also be noted that the plaintiff wanted the materials filed late to be kept confidential and not circulated to the other parties. The Tribunal did look at the documents and considered them not relevant to the current proceedings which it was entitled to do, and therefore did not circulate the documents, NCAT 16OCT20 T.18-T.19. Further the Tribunal gave clear reasons why the materials could not be relevant. It was also entitled to hold the plaintiff to the orders it made as to the date and time for filing materials. However it did allow the plaintiff to make submissions based on the materials. There was in my view no procedural unfairness accorded to the plaintiff. 45. As a general comment I would wish to state that both Tribunal members acted with consummate professionalism. The plaintiff, even though a litigant in person, made it abundantly clear in both hearings when he was not arguing belligerently with someone or other that the Tribunal was in effect an obstacle in his way to the Supreme Court. Apart from the obvious disrespect clearly intended by the exchanges only some of which I have made reference to, it ill behoves any person, litigant in person or otherwise claiming a denial of procedural fairness to so blatantly insult and obstruct the very body attempting to conduct a hearing so as to render almost futile the very right he now asserts he was denied. The plaintiff in both hearings displayed a clear contempt for the Tribunal and its workings. When he was not insulting the Tribunal he was insulting his brother, the Trustee and Guardian and/or his parents' representative. His attitude showed a complete disregard for any genuine desire to be accorded a right simply to be heard. Rather he promised in both Tribunal hearings an appeal to the Supreme Court would be pursued so the Tribunal could be put in its place. A hearing before the Tribunal was it seems in fact the last thing he wanted. 46. There was in my view no denial of procedural fairness before either Tribunal. In the first case although the Tribunal did not have before it materials in the form sent, it gave the plaintiff ample opportunity, which he took, to make assertions supported by the material. As is clear, the Tribunal took into account not only the substance of the material but also the detail it purported to prove. In the second case, the plaintiff was able to rely on the material as submissions and given ample opportunity to explain and therefore not denied procedural fairness. In the light of these facts, but importantly against the backdrop of the plaintiff's attitude in both cases, a further hearing would amount to a futility as I could not envisage another outcome. 47. I would invite the parties to send to my Associate short minutes of order reflecting these reasons and I will hear the parties on any outstanding issues of costs. ********** Amendments 22 October 2021 - typos and formatting in paras [1] [2], [11] and [108] 22 October 2021 - typo [163] 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: 22 October 2021