Civil and Administrative Tribunal New South Wales Medium Neutral Citation: YFB v YFC [2023] NSWCATAP 337 Hearing dates: 10 August 2023 Date of orders: 21 December 2023 Decision date: 21 December 2023 Jurisdiction: Appeal Panel Before: C P Fougere, Principal Member J D'Arcy, Senior Member C Kennedy, General Member Decision: 1. The appeal is allowed. 2. The decision of the Tribunal on 12 April 2023 to dismiss the application for a guardianship order is set aside. 3. The application for the appointment of a guardianship order is remitted to the Tribunal for reconsideration on the basis of the evidence that was before the Tribunal at the hearing on 12 April 2023 and any fresh evidence, or evidence in addition to or in substitution for the evidence that was before the Tribunal. This may include evidence from the Solicitor in relation to the making of the 2021 enduring guardianship instrument. Catchwords: APPEAL – Guardianship Division – whether breach of procedural fairness – whether appellant should have been offered adjournment – adjournment of other proceedings so that witness available to give evidence – appeal allowed. Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), ss 4, 32(4), 36(1), 38(2), 38(5)(c), 65(1),65(3), 80(2)(b), 80(3), 81; Sch 6, cl 5(1) Guardianship Act 1987 (NSW), ss 3, 3(1), 4, 6I(1), 14(1)-(2), 14(2)(a), 14(2)(d) Cases Cited: Brown v A Hambridge & G Riog Pty Ltd [2022] NSWCATAP 134 Cominos v Di Rico [2016] NSWCATAP 5 Italiano v Carbone [2005] NSWCA 177 John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Roach v Swain [2021] NSWCATAP 258 Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141 Tiwari v Champion Homes Sales Pty Ltd [2016] NSWCATAP 73 Warkworth Mining Limited v Bulga Milbrodale Progress Association Inc [2014] NSWCA 105 ZND v ZNE [2020] NSWCATAP 34 ZTO v Central Coast Local Health District [2021] NSWCATAP 160 Texts Cited: None cited. Category: Principal judgment Parties: YFB (Appellant) YFC (First Respondent) Public Guardian (Second Respondent) YFS (Third Respondent) Representation: Nil File Number(s): 2023/00159351 Publication restriction: The publication of the name of any of the parties or other people referred to in this decision including the publication of any information picture or other material that identifies them or is likely to lead to their identification is prohibited. Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Guardianship Division Citation: N/A Date of Decision: 12 April 2023 Before: N Jones, Senior Member (Legal) Dr W Longley, Senior Member (Professional) F Given, General Member (Community) File Number(s): 2023/00051300 REASONS FOR DECISION 1. YFB appeals against the decision made by the Guardianship Division of the NSW Civil and Administrative Tribunal (Tribunal) on 12 April 2023 to dismiss the application for guardianship that he had lodged in respect of his father, YFC. The effect of the dismissal of the guardianship application was to leave unaffected an enduring guardianship appointment made by YFC on 9 June 2021 that appointed his daughter, YFS, as his enduring guardian. 2. For ease of reference, in the remainder of these Reasons for Decision, YFB will be referred to as "the Appellant", YFC as "the Subject Person" and YFS as "the Daughter". 3. At the time of the appeal hearing, the Subject Person was an 88-year-old man who had lived for a number of years at a nursing home in Sydney and has a diagnosis of Alzheimer's dementia. His wife of many years passed away in 2022. 4. For the reasons set out below we uphold the appeal. Publication of the names of the parties 1. The publication or broadcast of the name of any person, who is mentioned or is otherwise involved in an internal appeal against decisions made by the Tribunal is prohibited under s 65(1) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act). Being an official report of the appeal proceedings, that prohibition does not apply to these Reasons for Decision due to s 65(3) of the NCAT Act. Nonetheless, because of the sensitive nature of the matters raised in these proceedings, we will not refer to the parties by name but use the descriptors as previously noted. Background to appeal 1. On 9 June 2021, the Subject Person appointed the Daughter as his enduring guardian (2021 enduring guardianship instrument). The Subject Person appointed another daughter as his substitute enduring guardian. Execution of this document was witnessed by a solicitor (the Solicitor) and she certified that the Subject person "appeared to understand the effect of this instrument". 2. On the same date, the Subject Person also made an enduring power of attorney that jointly appointed the same two daughters as his attorneys. The Solicitor completed the necessary certification for the enduring power of attorney, including certifying that the Subject Person "appeared to understand the effect of this power of attorney". 3. On 23 February 2023, the Appellant lodged a guardianship application seeking to be appointed as his father's guardian. If a guardianship order were to be made for the Subject Person, it would operate to suspend for the duration of the guardianship order all authority of the Daughter as the enduring guardian to exercise a function under the appointment: Guardianship Act 1987 (NSW) (the Act), s 6I(1). 4. The Appellant also lodged an application seeking review of the enduring power of attorney that was made on 9 June 2021 (2021 enduring power of attorney) and an application for the making of a financial management order. 5. The hearing of all three applications was listed on 12 April 2023. 6. After hearing evidence in respect of the guardianship application, the Tribunal was satisfied that the Subject Person was a person who met the definition of a "person in need of a guardian" under s 3(1) of the Act and was a person for whom a guardianship order could be made ([15]). 7. However, after considering the written and oral evidence ([16]-[27]), the Tribunal concluded that the "evidence before us does not demonstrate that [the Subject Person's] welfare or interests are in any peril that would necessitate the making of a guardianship order" ([35]). The Tribunal arrived at that conclusion after making the following findings (at [30]-[34]): "[30] At this hearing [the Subject Person] did not provide any view about the guardianship application. The letter signed by [the Subject Person] on 25 February 2023 likewise does not provide to us his views. We note in his evidence to us that [the Appellant] told us that he had written the letter signed by his father. That letter was written in anticipation of what may occur at this hearing and cannot be seen in any way to reflect a genuine view of [the Subject Person] based on reasoned understanding. [31] We did have before us the views of each of [the Subject Person's] surviving children with all but [the Appellant] expressing their satisfaction with the current arrangements for their father. [32] The evidence before us demonstrates that no decisions are currently required in respect of [the Subject Person's] accommodation or the services that he receives. [The Appellant] raises concerns about his father's healthcare, we accept the evidence of Ms N, which is corroborated by Ms C and [the Daughter], that [the Subject Person] is seen regularly by a General Practitioner and that his medical needs are being met fully and in a timely manner. [33] On the material filed before the hearing, [the Appellant's] access to his father had appeared to be sporadic and frustrated. His own evidence at the hearing told us that that was not the case; indeed [the Appellant] sees his father on an almost daily basis. There is no suggestion that any other member of the family have any issues seeing [the Subject Person] such that the current arrangement does preserve [the Subject Person's] family relationships and with that his culture. [34] On 9 June 2021 [the Subject Person] executed an appointment of enduring guardian appointing [the Daughter] as his enduring guardian. There is no application before us challenging that appointment. The appointment reflects the wishes of [the Subject Person] and the arrangements that he wished to see in place in the event that he lost capacity to make his own decisions. That decision should not lightly be disturbed as made clear in the guiding principles at section 4(b) and (f)." 1. The Tribunal adjourned the hearing of the financial management application and the application for review of the 2021 enduring power of attorney. The written reasons explain that it did so because the Solicitor, who witnessed the execution of the 2021 enduring power of attorney, could not be contacted to take part in the hearing and give evidence ([40]). Both the Appellant and the Daughter regarded the Solicitor as an important witness relevant to the issue of the Subject Person's capacity to execute the enduring power of attorney on 9 June 2021. The Appellant believed that the Solicitor's evidence would support a finding that his father did not have capacity to execute the document ([38]); the Daughter believed otherwise ([39]). 2. Given "the obvious importance that the parties place upon the possible evidence of [the Solicitor]" ([40]), the Tribunal adjourned the hearing with directions that arrangements were made for the Solicitor's participation at the adjourned hearing. Statutory framework 1. The Tribunal may make a guardianship order for a person under s 14(1) of the Act if it is satisfied that the person is a "person in need of a guardian". Section 3 of the Act defines a "person in need of a guardian" as a "person who, because of a disability, is totally or partially incapable of managing his or her person". 2. The power to make an order is discretionary but in considering whether or not an order should be made, the Tribunal must have regard to the matters set out in s 14(2) which provides as follows: 14 Tribunal may make guardianship orders … (2) In considering whether or not to make a guardianship order in respect of a person, the Tribunal shall have regard to: (a) the views (if any) of: (i) the person, and (ii) the person's spouse, if any, if the relationship between the person and the spouse is close and continuing, and (iii) the person, if any, who has care of the person, (b) the importance of preserving the person's existing family relationships, (c) the importance of preserving the person's particular cultural and linguistic environments, and (d) the practicability of services being provided to the person without the need for the making of such an order. 1. When "exercising its Division functions for the purposes of the Guardianship Act in relation to persons who have disabilities", the Tribunal is under a duty to observe the principles referred to in s 4 of the Act: NCAT Act, Sch 6, cl 5(1). 2. Under s 4 of the Act, it is the duty of everyone exercising functions under that Act with respect to persons who have disabilities to observe the following principles: 4 General principles … (a) the welfare and interests of such persons should be given paramount consideration, (b) the freedom of decision and freedom of action of such persons should be restricted as little as possible, (c) such persons should be encouraged, as far as possible, to live a normal life in the community, (d) the views of such persons in relation to the exercise of those functions should be taken into consideration, (e) the importance of preserving the family relationships and the cultural and linguistic environments of such persons should be recognised, (f) such persons should be encouraged, as far as possible, to be self-reliant in matters relating to their personal, domestic and financial affairs, (g) such persons should be protected from neglect, abuse and exploitation, (h) the community should be encouraged to apply and promote these principles. Fresh evidence 1. The Attorney sought to rely on the following additional material filed in the appeal: 1. A bundle of photographs of: 1. The Subject Person's teeth (taken 6 June 2023 to 17 July 2023) 2. The Subject Person's nose (taken 24 July 2023) 3. The Subject Person's bedding (taken 15 July 2023) 4. The Subject Person's arms and legs showing scratches (taken 18 July 2023) 5. The sign-in device and doorbell of the Subject Person's nursing home (taken 19 July 2023) 1. Email correspondence between the Appellant and the General Manager of the Subject Person's nursing home, dated after the hearing date of 12 April 2023 2. Letter to "To whom it may concern" from Appellant's full-time support worker dated 24 May 2023 3. Letter to "To whom it may concern" from a different support worker for the Appellant dated 11 June 2023 4. Text messages between the Appellant and the Enduring Guardian dated 7 September 2021 and 14 October 2021 1. The written submissions on appeal did not seek to address why leave should be granted to rely on the additional material and nor did they address the principles relating to the admission of fresh evidence (ZND v ZNE [2020] NSWCATAP 34, [62]). 2. The material listed at [19](1)-(5) above came into existence after the date of the proceedings below. In relation to the bundle of photographs listed at [19](1) above, they came into existence on the dates indicated but the appeal, the Appellant agreed that the subject matter of some of the photographs (the state of his father's teeth, his father's dripping nose) were issues that were raised in the proceedings below. Other matters (such as dirty bed linen and the scratches on the Subject person's legs and arms) were matters that the Appellant became aware of after the hearing on 12 April 2023 and he submitted the photographs on the basis that they document and provide evidence of what he asserts is the poor care that his father receives at the nursing home. The letters in [19](3)-(4) above written by the Appellant's support workers purport to support the Appellant's concerns about the standard of care that his father receives because they set out their own observations of the quality of the Subject Person's care, which is consistent with the views expressed by the Appellant. 3. We did not need to decide whether we would admit this material as fresh or new evidence in the appeal and we did not have regard to the material. This is because, for the reasons that follow, we allowed the appeal and have remitted to the Tribunal for reconsideration the application for the appointment of a guardianship order in respect of the Subject Person. Any new evidence filed by the parties may be considered by the Tribunal when the matter is re-heard. Appeal framework 1. The decision under appeal in this matter is an "internally reviewable decision": NCAT Act, ss 4 and 32(4). A party may appeal an internally reviewable decision on any question of law or with the leave of the Appeal Panel on any other ground: NCAT Act, s 80(2)(b). 2. Under s 80(3) of the NCAT Act: 80 Making of internal appeals … (3) The Appeal Panel may— (a) decide to deal with the internal appeal by way of a new hearing if it considers that the grounds for the appeal warrant a new hearing, and (b) permit such fresh evidence, or evidence in addition to or in substitution for the evidence received by the Tribunal at first instance, to be given in the new hearing as it considers appropriate in the circumstances. 1. Section 81 of the NCAT Act sets out the orders that may be made on appeal: 81 Determination of internal appeals (1) In determining an internal appeal, the Appeal Panel may make such orders as it considers appropriate in light of its decision on the appeal, including (but not limited to) orders that provide for any one or more of the following: (a) the appeal to be allowed or dismissed, (b) the decision under appeal to be confirmed, affirmed or varied, (c) the decision under appeal to be quashed or set aside, (d) the decision under appeal to be quashed or set aside and for another decision to be substituted for it, (e) the whole or any part of the case to be reconsidered by the Tribunal, either with or without further evidence, in accordance with the directions of the Appeal Panel. (2) The Appeal Panel may exercise all the functions that are conferred or imposed by this Act or other legislation on the Tribunal at first instance when varying, or making a decision in substitution for, the decision under appeal. Notice of Appeal 1. The Notice of Appeal did not identify clear grounds of appeal and set out the following sole ground: "They did not accept my reasons of evidence but now I have proof that contradict there (sic) evidence." 1. The order sought by the appellant is: "For me to have guardianship of my father [the Subject Person]." 1. The Appellant also provided what may be described as commentary on the Reasons for Decision for the Tribunal's decision as well as a number of complaints about aspects of the findings made by the Tribunal, focussed largely on the Subject Person's ongoing health issues. 2. It is well recognised that self-represented appellants may have difficulty in clearly expressing their grounds of appeal or, even more challenging, identifying a question of law: Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [12]; Cominos v Di Rico [2016] NSWCATAP 5 (Cominos) at [13]); ZTO v Central Coast Local Health District [2021] NSWCATAP 160, at [17]-[23]). 3. In Cominos, the Appeal Panel stated, at [13]: "In such circumstances and having regard to the guiding principle, it is appropriate for the Appeal Panel to review an appellant's stated grounds of appeal, the material provided, and the decision of the Tribunal at first instance to examine whether it is possible to discern grounds that may either raise a question of law or a basis for leave to appeal…However, this must be balanced against the obligation to act fairly and impartially (Bauskis v Liew [2013] NSWCA 297 at [68] citing Hamod v State of New South Wales [2011] NSWCA 367 at [309]-[316]). Relevantly, s 38(2) provides that that Tribunal "may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice." 1. Accordingly, after considering the Appellant's Notice of Appeal, the material provided by all parties, and also the decision of the Tribunal at first instance, we understood that his appeal ground could be encapsulated as follows: 1. Whether the Tribunal failed to afford procedural fairness to the Appellant by not offering him the opportunity to request an adjournment of the guardianship hearing so that the Solicitor could be available to give evidence 1. The Appellant has the right to appeal on this ground because it raises a question of law (John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69, at [13(4)]). 2. We took the view that the Daughter was sufficiently on notice of this ground of appeal because the Appellant's Notice of Appeal made reference to the following: "[The Solicitor] (Fathers solicitor who made the Guardianship order) was needed for the Guardianship order however she did not answer her phone. I feel that they should have adjourned it as they should have listened to [the Solicitor] before making decision." Replies to appeal 1. The Daughter submitted that the Tribunal had not made any errors and that the appeal should be dismissed. 2. On the basis of the medical evidence provided to the Tribunal below, we decided not to try and contact the Subject Person. 3. The Public Guardian did not participate in the hearing. Did the Tribunal deny the Appellant procedural fairness by failing to adjourn the hearing of the guardianship application? 1. The Appellant clarified, with the assistance of the Appeal Panel, that he contended that because he was unrepresented, he should have been offered the opportunity to request an adjournment of the guardianship hearing. This was so because the Tribunal was unable to contact the Solicitor during the hearing on 12 April 2023. The relevance of the Solicitor's evidence, in the Appellant's view, was that it would have clarified whether the Solicitor had followed the correct procedure when she witnessed the Subject Person signing the 2021 enduring guardianship instrument. The Tribunal adjourned the hearing of the review of the 2021 enduring power of attorney because it could not contact the Solicitor and her evidence was important to the issue of the Subject person's capacity to make the 2021 enduring power of attorney. The Appellant submitted that he did not know that he could have requested an adjournment of the hearing of the guardianship application and would have asked for an adjournment had he known. Consideration 1. The Tribunal is obliged to comply with the rules of natural justice (NCAT Act, s 38(2)), one aspect of which is conducting the hearing in a procedurally fair manner. The Tribunal is also required to "… take such measures as are reasonably practicable to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings": NCAT Act, s 38(5)(c). 2. Providing a party with a reasonable opportunity to present his or her case includes offering a self-represented party an adjournment, where appropriate, even if it is not requested: Italiano v Carbone [2005] NSWCA 177, at [105]-[107] (Basten J). See also Brown v A Hambridge & G Riog Pty Ltd [2022] NSWCATAP 134, at [29]-[30]; Roach v Swain [2021] NSWCATAP 258 and in Tiwari v Champion Homes Sales Pty Ltd [2016] NSWCATAP 73. 3. The Tribunal's Reasons do not make any reference to the Appellant asking for an adjournment of the hearing of the guardianship application, or alternatively, the Tribunal raising the prospect of the Appellant requesting an adjournment of the guardianship proceedings. None of the parties filed a transcript or the sound recording of the proceedings. In these circumstances, we were prepared to accept that the Tribunal did not raise with the Appellant the possibility of his requesting an adjournment. 4. However, the Tribunal's Reasons, dealing with the application for a financial management order and review of the enduring power of attorney, directly addressed the issue of the Solicitor and the "importance that the parties place upon the possible evidence of [the Solicitor]" (at [40]). This was in respect of the challenge made by the Appellant to the Subject Person's capacity to execute the enduring power of attorney on 9 June 2021. The Tribunal's Reasons explained that they made numerous attempts to contact the Solicitor over nearly two hours (at [40]) but were unsuccessful in contacting her. This ultimately led to the adjournment of those proceedings (at [47]-[48]). 5. In respect of the application for a guardianship order, whilst the Tribunal was correct in noting that there was no application before it that sought review of the 2021 enduring guardianship instrument (at [34]), the existence of that instrument was clearly a factor, amongst others, that the Tribunal took into account when deciding to dismiss the application for guardianship. The Tribunal noted the existence of that instrument and the appointment of the Daughter as the enduring guardian (at [34]). The Reasons state (also at [34]) that: "The appointment reflects the wishes of [the Subject person] and the arrangements that he wished to see in place in the event that he lost capacity to make his own decisions. That decision should not lightly be disturbed as made clear in the guiding principles at section 4(b) and (f)." 1. The fact of the enduring guardianship instrument was therefore clearly relevant to the exercise of the Tribunal's discretion under s 14(2) of the Act. It was accepted as reflecting the Subject person's views, at a particular point in time: the Act, s 14(2)(a). It also provided an alternative mechanism for substitute decision-making to that of an order made by the Tribunal in a number of areas of the Subject Person's life (accommodation, health care, medical and dental treatment, services): the Act, s 14(2)(d). 2. The effect of the dismissal of the guardianship application was to leave, unaffected in any way, the 2021 enduring guardianship instrument. 3. Given the significance of the instrument to the exercise of the Tribunal's discretion under s 14(2) of the Act, the decision to proceed with the hearing of the guardianship application to finalisation cannot be easily understood in circumstances where: * a direct challenge was being made to the Subject Person's capacity to make a different enduring appointment on the same date as the making of the 2001 enduring guardianship instrument and * the Tribunal adjourned the hearing of the application seeking review of the enduring power of attorney so that a witness critical to resolving the issue of whether the Subject Person had capacity to make that appointment could attend to give evidence. 1. Failing to offer the Appellant an adjournment in these circumstances so that he had a reasonable opportunity to present his case as to the validity, or otherwise, of the enduring guardianship appointment constituted, in our view, a denial of procedural fairness. 2. Such a denial ordinarily means that there has been an erroneous decision which should, pursuant to s 81 of the NCAT Act, be set aside or quashed, with the appeal allowed, save in rare circumstances, such as where the breach would have made no difference to the outcome of the case: Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141 at [28]; Warkworth Mining Limited v Bulga Milbrodale Progress Association Inc [2014] NSWCA 105 at [40]-[44]. 3. We were of the view that this is not a case in which it could be said that the breach of procedural fairness would have made no difference to the outcome. 4. The evidence to be given by the Solicitor about the circumstances of the making of the enduring guardianship instrument was unknown to the Tribunal at the date that it made its decision. Had the hearing been adjourned to allow an opportunity for the Solicitor to give evidence, it is possible that the Tribunal may have reached a different conclusion about the weight to be given to the existence of the 2021 enduring guardianship instrument when deciding whether or not to make a guardianship order under s 14(2) of the Act. 5. Accordingly, we have decided that the appeal must be allowed. How should the appeal be determined? 1. Having determined that the Appellant was denied procedural fairness, the application for a guardianship order must be reconsidered. 2. We have considered whether the decision should be re-determined by the Tribunal or by the Appeal Panel. The parties did not make submissions on this point. 3. We note that having the decision reconsidered by the Appeal Panel may have the advantage of an efficient resolution of the application for a guardianship order, which would be consistent with one of the guiding principles of the NCAT Act: the quick and cheap resolution of the real issues in the proceedings: NCAT Act, s 36(1). 4. Nonetheless, even though there may be a delay, we have decided it would be more appropriate for the matter to be re-determined by the Tribunal. Arrangements will need to be made for the Solicitor to give evidence in respect of the making of the 2021 enduring guardianship instrument. In addition, as previously indicated, in the appeal the Appellant filed additional material in support of his application to have a guardianship order made and to be appointed as his father's guardian. We also note that although the Appellant wishes to challenge the validity of the 2021 enduring guardianship instrument, he has not filed an application that directly seeks to do so. These are matters more appropriately addressed by the Division rather than the Appeal Panel. ORDERS 1. The appeal is allowed. 2. The decision of the Tribunal on 12 April 2023 to dismiss the application for a guardianship order is set aside. 3. The application for the appointment of a guardianship order is remitted to the Tribunal for reconsideration on the basis of the evidence that was before the Tribunal at the hearing on 12 April 2023 and any fresh evidence, or evidence in addition to or in substitution for the evidence that was before the Tribunal. This may include evidence from the Solicitor in relation to the making of the 2021 enduring guardianship instrument. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 December 2023