Civil and Administrative Tribunal New South Wales Medium Neutral Citation: YGZ v Public Guardian [2024] NSWCATAP 2 Hearing dates: 14 December 2023 Date of orders: 8 January 2024 Decision date: 08 January 2024 Jurisdiction: Appeal Panel Before: J Moir, Senior Member L Organ, Senior Member J Newman, General Member Decision: Appeal dismissed. Catchwords: APPEAL – Civil and Administrative Tribunal (NSW) – appeal from Guardianship Division- asserted error on a question of law – failure to take into account mandatory consideration - views of person with a disability- Guardianship Act 1987 s14(2)(a)(i). No error on a question of law established – appeal dismissed. Leave to appeal not sought. PROCEDURE – Civil and Administrative Tribunal (NSW) Appeal Panel – appeal from Guardianship Division – obligation to assist legally unrepresented appellant in formulation of their case and grounds. Legislation Cited: Administrative Decisions Review Act 1997(NSW), s 58 Civil and Administrative Tribunal Act 2013 (NSW), ss 38(6)(a), 80, 80(2)(b), Pt 6 Div 2 Civil and Administrative Tribunal Rules 2014 (NSW), rr 25(4), 25(4A) Guardianship Act 1987 (NSW) ss 4, 14(2), 25C Cases Cited: Cominos v Di Rico [2016] NSWCATAP 5 Neil v Nott [1994] HCA 23; (1994) 121 ALR 148 Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Collins v Urban [2014] NSWCATAP 17 Secretary, Department of Family and Community Services v Smith [2017] NSWCA 206 Texts Cited: Nil Category: Principal judgment Parties: YGZ (First Appellant) YHA (Second Appellant) Public Guardian (Respondent) Representation: Nil File Number(s): 2023/00312564 Publication restriction: Decisions of the Appeal Panel in respect of orders of the Guardianship Division of the Tribunal have been anonymized to remove any information that may identify any individual person involved in the Tribunal's proceedings. The publication of the name of the Appellants or other people referred to in this decision including the publication of any information, or other material that identifies them or is likely to lead to their identification, is prohibited: Civil and Administrative Tribunal Act 2013, section 65. Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Guardianship Division Citation: Nil Date of Decision: 06 September 2023 Before: L Porter, General Member (Community) File Number(s): 2018/00324649 REASONS FOR DECISION What is this appeal about? 1. This is an appeal made by YGZ and YHA against a decision made by the Guardianship Division of this Tribunal to confirm a guardianship order on review, for YGZ. 2. YGZ is a 32 year old man who lives in public housing in the western suburbs of Sydney. He has been diagnosed with an intellectual disability and is a participant in the National Disability Insurance Scheme (NDIS). He receives NDIS funded services. YHA is a friend of his. 3. YGZ has been subject to a guardianship order since 2018. The order has been reviewed and renewed a number of times since it was made, most recently on 6 September 2023. The guardianship proceedings and orders 1. On 6 September 2023 a panel comprising a single member of the Guardianship Division ("the Panel") considered an application from YHA requesting a review of a guardianship order made on 7 December 2022. This order appointed the Public Guardian for 2 years, with authority to make decisions for YGZ regarding his accommodation, health care, medical and dental treatment and services. In her request to review the guardianship order, YHA had asked that she be appointed as guardian in place of the Public Guardian. 2. The Panel considered evidence from the parties and other service providers and determined to confirm the guardianship order made on 7 December 2022. In respect of the decision not to change the guardian, the Panel's Reasons for Decision reasoned, at [55-58]: [55]"I was unable to determine how [YHA] met [YGZ]. [YHA] insisted that she was in a café in Bankstown, and he approached her and asked her to be his guardian because he was unhappy with the Public Guardian and their (sic) decisions that they make for him. [YHA's] explanations about how she met [YGZ] did not seem plausible to me, particularly that [YGZ] was able to articulate all the comments that were attributed to him in the application. She said that their first interaction was in January or February 2023 in the café. I note here, that [YHA] submitted her application on 9 February 2023. [56] [YHA] denied having any association with Jamil Chalik or TQDC (Total Quality Disability Care). However I could not be satisfied on her evidence that her organisation, "[YJA]" will not become involved with [YGZ] as a service provider in the future, should she be associated with [YGZ] as a service provider in the future, then she could not be appointed as his guardian. I could not understand [YHA's] motivation to submit the application, she said that she likes to help people. [YHA] demonstrated no insight into [YGZ's] circumstances or his life. She was unable to explain her plans or how he would act objectively as his guardian and without conflict of interest. I could not be satisfied that [YHA] is able to exercise the functions conferred in the order. [57] The Tribunal is not satisfied that [YHA] meets the requirements to be appointed guardian for [YGZ]. [58] The Public Guardian was appointed as [YGZ's] guardian on the last occasion. As there is no private person available to be appointed as guardian, the Tribunal reappointed the Public Guardian." [Individuals or parties anonymised] The appeal 1. YHA and YGZ appealed against this decision. In the appeal documentation, they assert that the Public Guardian has failed in its obligations and duties in a number of regards, ask the Tribunal to investigate these matters and request a change in the appointment of guardian for YGZ. The Public Guardian is the respondent to the appeal. Issues for determination on appeal and our decisions 1. The making of internal appeals is governed by Pt 6 Div 2 of the Civil and Administrative Tribunal Act 2013 (NSW) ("the NCAT Act"). The effect of s 80 and specifically s 80(2)(b) of that Act is that an appeal may be made as of right on a question of law, or with the leave of the Appeal Panel on any other grounds. 2. In conducting this Appeal, we have no jurisdiction to review the actions of the Public Guardian. 3. In respect of the matters within our jurisdiction, it fell to us to decide: 1. whether, in reaching its decision to confirm the guardianship order for YGZ, as described above, the Panel had fallen into legal error; that is, that its decision was based on a question of law. If we decided that there was such an error, YGZ and YHA's appeal would proceed as of right; and 2. what orders we should make. 1. We decided that the Panel's decision was not based on a question of law. We therefore ordered that the appeal be dismissed. 2. These are our reasons for those decisions. Documentary material and the parties' submissions 1. In support of YGZ and YHA's case we received and considered the Notice of Appeal, a copy of the Panel's Reasons for Decision, an undated letter from YHA headed "Response to the PG" and the oral evidence of the participants to the hearing. We were not provided with a copy of a recording or the transcript of the hearing on 6 September 2023, despite the appellants being directed to provide those if they relied upon what occurred at the hearing. 2. In support of the case of the Respondent, we received and considered a copy of the Panel's Reasons for Decision. 3. We heard oral submissions from YHA and YGZ and we also heard submissions on behalf of the Public Guardian from Brigid O'Connor a Principal Guardian. QUESTION OF LAW What is a question of law? 1. In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 ("Prendergast") at [13], the Appeal Panel of this Tribunal described the following questions as constituting questions of law: (1) whether the Tribunal had provided adequate reasons, which explain the Tribunal's findings of fact and how the Tribunal's ultimate conclusion is based on those findings of fact and relevant legal principle. (2) whether the Tribunal had identified the wrong issue or asked the wrong question. (3) whether it had applied a wrong principle of law; (4) whether there had been a failure to afford procedural fairness; (5) whether the Tribunal had failed to take into account a relevant (that is, a mandatory) consideration; (6) whether it had taken into account an irrelevant consideration; (7) whether there was no evidence to support a finding of fact; and (8) whether the decision was legally unreasonable. The applicant's submission and orders sought 1. As noted above, the submissions raised in the appeal documentation submitted by YGZ and YHA related largely to perceived failures of the Public Guardian in undertaking their duties as guardian for YGZ. It was not immediately apparent from this material the basis on which YGZ and YHA asserted there were grounds to appeal, bearing in mind the legal basis on which appeals may be made. Essentially, they hoped that we would be able to have regard to YGZ's wishes, and replace the Public Guardian with YHA as his guardian. 2. In Prendergast it was said, at [12], that where the appellant is unrepresented, it is appropriate for the Tribunal to approach the issue of whether there is a legitimate question of law in the appeal and the nature of any legal error: "…by looking at the grounds of appeal generally. It is necessary for the Appeal Panel to determine whether a question of law has in fact been raised, subject to any procedural fairness considerations that might arise to the respondent." 1. However, the Appeal Panel in that case went on to say that it is not its role to draft grounds of appeal for the appellant which have not been raised and then resolve them, unless the issues go to the jurisdiction of the Tribunal or are otherwise necessarily considered to resolve the appeal. 2. We also had regard to the observations in Cominos v Di Rico [2016] NSWCATAP 5 ("Cominos") that it can be difficult for self-represented appellants to express clearly their grounds of appeal or, (which is in many cases, even more challenging) to identify a question of law. 3. In Cominos the Appeal Panel said, 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])… Relevantly, s 38 (2) (of the NCAT Act) provides that the 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. As observed by the High Court in Neil v Nott [1994] HCA 23; (1994) 121 ALR 148, at [5]: "A frequent consequence of self-representation is that the court must assume the burden of endeavouring to ascertain the rights of the parties which are obfuscated by their own advocacy." 1. The need for some intervention by the Tribunal to assist in this regard may well arise more frequently in cases where the appellant is under some disability, such as is often the case in guardianship appeals. 2. In accordance with the approach approved in those authorities, and consistent with the usual approach of the Appeal Panel, we endeavoured to clarify the grounds of appeal and the nature of any alleged questions of law contended by YGZ and YHA, in particular, by explaining what is meant by that term, and asking in what ways they perceived the Panel to have been in error. 3. Based on the Notice of Appeal and their oral submissions, YGZ and YHA: 1. said that the Panel did not give consideration to YGZ's views in coming to its decision; and 2. challenged the continued appointment of the Public Guardian, as YGZ wants YHA to be appointed. 1. Having explained the "Prendergast" issues relevant to establishing a question of law, YHA and YGZ confirmed that the only ground they sought to press was that YGZ's views (which are a mandatory consideration) were not considered. 2. YGZ told us that he "could not get a word in" at the hearing and was not asked anything by the Panel. YHA said that YGZ was asked some questions but that he did not really understand what the hearing was about, so he was not able to put his views clearly. Ms O'Connor said that she participated in the hearing in question and that her recollection was that YGZ was given the opportunity to express his views. She recalled the Panel member spending time slowly explaining what the hearing was about, but that YGZ was very focussed on financial issues. In her view, the Reasons for Decision accurately reflect what occurred at that hearing. CONSIDERATION: QUESTION OF LAW (1) The asserted failure to consider YGZ's own views The statutory background 1. In conducting the requested review of the guardianship order for YGZ, the Panel was exercising functions under the Guardianship Act 1987 (NSW). Section 4 of that Act requires anyone exercising such functions with respect to people who have disabilities to observe certain principles (generally referred to as "the section 4 principles"). The principle set out in paragraph 4 (d) is in the following terms: "(d) the views of such persons in relation to the exercise of those functions should be taken into consideration." 1. The reference to "those functions" is clearly to functions under the Guardianship Act. 2. Additionally, in relation to the review of the guardianship order (which may involve making a further guardianship order), s 14(2) of the Guardianship Act requires the Tribunal to have regard (amongst other things) to the views of the person who is the subject of the guardianship application. Consideration 1. As noted above, we were not provided with a copy of the transcript or the recording of the hearing. On this basis we were dependent on the Reasons for Decision and the oral evidence at the appeal hearing to establish what opportunity YGZ had to provide his views, and the way in which the Panel had regard to his views. On any reading of the Panel's Reasons for Decision, the Panel did not fail to take YGZ's views into account in reviewing the guardianship order. 2. The Panel specifically acknowledged its obligation to have regard to YGZ's views at [21] and set out briefly the views which YGZ had expressed at the hearing at [27-28], in the following terms: "[27] "[YGZ] said that the Public Guardian "underpays" him. I explained to him that this hearing was about the guardianship order and not the financial management order. I explained some examples of lifestyle decisions. He said that he would be alright for [YHA] to be his guardian, he sought reassurance from [YHA] throughout the hearing before speaking. He said that he no longer lives with his previous partner, […], he has moved out. [YGZ] acknowledged that his tenancy with Department of Communities and Justice (DCJ) was at risk recently and he was happy that he didn't get evicted. [28] I received a copy of an email purportedly sent by YGZ on 3 June 2023 wanting to know when this hearing was to be scheduled. It states, "Billy no longer lives here and was only here temporarily, this review for guardianship needs to happen now I will be visiting the advocate office tomorrow as I have had enough of being told what to do" The email is signed off by YGZ and Crystal. I could not confirm who Crystal was or how she knows YGZ." [name of friend removed] 1. [YGZ's] views were clearly taken into account, the Tribunal noting [at 40] that: "[YGZ] appeared confused what the hearing was about, he thought it was about his financial management order. I tried my best to give him a basic explanation about guardianship. However, I could not obtain a clear view from him about the application. When pressed, he said that YHA could be his guardian, but I could not be satisfied that he understood what this would mean.' 1. At [42] the Panel noted: "Over the course of the hearing [YGZ] did not reiterate one negative comment about the Public Guardian, as set out in [YHA's] application." 1. We were satisfied that the Reasons for Decision clearly set out the opportunity that YGZ was given to provide his views, the assistance the Panel provided to him to do this, and the way in which the Panel had regard to his views in coming to its decision. 2. YGZ's own recollection that he "couldn't get a word in" and was not asked any questions was not consistent with the Reasons for Decision, or the recollection of either YHA or Ms O'Connor. We therefore gave more weight to the Reasons for Decision as a record of what occurred at the hearing, than to YGZ's recollection. 3. We were satisfied that there has been no error on a question of law by the Tribunal. LEAVE TO APPEAL Principles governing a grant of leave 1. The principles governing an application for leave to appeal under the NCAT Act are well-established and are repeated in many decisions of the Appeal Panel, often quoting Collins v Urban [2014] NSWCATAP 17. They are the same principles applied by the courts. In Secretary, Department of Family and Community Services v Smith [2017] NSWCA 206 ("Smith"), the Court of Appeal said at [28] (citations omitted): "Only if the decision is attended with sufficient doubt to warrant its reconsideration on appeal will leave be granted. Ordinarily, it is only appropriate to grant leave where there is an issue of principle, a question of general public importance, or an injustice which is reasonably clear, in the sense of going beyond what is merely arguable. It is well established that it is not sufficient merely to show that the trial judge was arguably wrong." 1. In Collins v Urban at [84] the Appeal Panel adopted the factors suggested in Smith and suggested three additional circumstances where leave may be granted; namely where: 1. there has been an error that is plain and readily apparent, which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; 2. there has been a factual error that was unreasonably arrived at and clearly mistaken; or 3. the Tribunal has gone about the fact-finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result, so that it would be in the interests of justice for it to be reviewed. 1. YHA and YGZ confirmed at the hearing that they were not pressing for leave to appeal the decision. On this basis, we did not give regard to whether leave should be granted to appeal. ORDERS 1. Given our findings and conclusions above, it follows that the appeal should be dismissed. 2. We ordered accordingly. ********** 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: 08 January 2024