Civil and Administrative Tribunal New South Wales Medium Neutral Citation: YKQ v YKR [2025] NSWCATAP 42 Hearing dates: 02 December 2024 Date of orders: 24 February 2025 Decision date: 24 February 2025 Jurisdiction: Appeal Panel Before: Hennessy ADCJ, Deputy President A Britton, Deputy President M Bolt, general member Decision: (1) Leave to appeal out of time is refused. (2) The appeal is dismissed. Catchwords: CIVIL PROCEDURE — protective jurisdiction — appeals from Guardianship Tribunal CIVIL PROCEDURE — time — extension of time APPEALS — from finding of fact — function of Appeal Panel Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Cases Cited: Collins v Urban [2014] NSWCATAP 17 Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 Texts Cited: None cited Category: Principal judgment Parties: YKQ (Appellant) YKR (First Respondent) YKS (Second Respondent) YKU (Third Respondent) Public Guardian (Fourth Respondent) NSW Trustee and Guardian (Fifth Respondent) Representation: YKQ (Self-Represented) YKR (Self-Represented) YKS (Self-Represented) YKU (Self-Represented) Public Guardian (No Appearance) NSW Trustee and Guardian (No Appearance) File Number(s): 2024/00150688 Publication restriction: Pursuant to s 65 of the Civil and Administrative Tribunal Act 2013, a person must not without the consent of the Tribunal publish or broadcast the name of any person who appears as a witness in these proceedings, to whom these proceedings relate, or is mentioned or otherwise involved in the proceedings. The name of a person includes a reference to any information, picture or other material that identifies or is likely to lead to the identification of the person. Decision under appeal Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Guardianship Division Citation: n/a Date of Decision: 17 November 2023 Before: K McMahon, Senior Member (Legal) File Number(s): 2020/00007734 REASONS FOR DECISION Introduction 1. Ms W (YKR) is an elderly woman who is living in an aged care facility. She has adult children who disagree about who should be her guardian and financial manager. Mr X (YKQ) has appealed from a decision of the Tribunal appointing the Public Guardian as Ms W's guardian and two of her adult sons, Mr Z (YKU) and another adult son Mr A (who is not a party), as her financial managers. Another adult child, Ms Y (YKS) is a respondent to the appeal. 2. The appeal was lodged out-of-time. For the following reasons we have decided not to exercise the discretion to extend the time to lodge the appeal. Consequently, the appeal is dismissed. Should the appeal be accepted even though it was lodged late? Principles for granting an extension of time 1. Unless the Appeal Panel grants an extension of time, an appeal must be lodged "within 28 days from the day on which the appellant was notified of the decision to be appealed or given reasons for the decision (whichever is the later)": Civil and Administrative Tribunal Rules 2014 (NSW), cl 25(4). Mr X received written reasons for the decision on 9 February 2024, and lodged the notice of appeal on 23 April 2024, about six weeks after the date the appeal was required to be lodged. 2. Section 41 of the Civil and Administrative Tribunal Act 2013 (NSW) permits the Appeal Panel to extend the time for lodging an appeal. The principles governing the exercise of that discretion were set out by the Appeal Panel in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 at [18]-[22]. At [18], the Appeal Panel explained: "Under s 41, the Appeal Panel has power to grant an extension of time in which to appeal in the present matter. The discretion to grant an extension of time is unfettered under that section but it must be exercised judicially. It must also be exercised having regard to the statutory command in s 36 of the Act that the guiding principle for the Act 'is to facilitate the just, quick and cheap resolution of the real issue in the proceedings'." 1. At [22] the Appeal Panel set out the considerations that will generally be relevant to the Appeal Panel's consideration of whether to grant an extension of time in which to lodge an appeal: (1) "The discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the appellant - Gallo v Dawson [1990] HCA 30, 93 ALR 479 at [2], Nanschild v Pratt [2011] NSWCA 85 at [38]; (2) The discretion is to be exercised in the light of the fact that the respondent (to the appeal) has already obtained a decision in its favour and, once the period for appeal has expired, can be thought of as having a "vested right" to retain the benefit of that decision - Jackamarra v Krakouer (1998) 195 CLR 516 at [4], Nanschild v Pratt [2011] NSWCA 85 at [39] and, in particular, where the right of appeal has gone (because of the expiration of the appeal period) the time for appealing should not be extended unless the proposed appeal has some prospects of success - Jackamarra at [7]; (3) Generally, in an application for an extension of time to appeal the Appeal Panel will be required to consider: (a) The length of the delay; (b) The reason for the delay; (c) The appellant's prospects of success, that is usually whether the applicant has a fairly arguable case; and (d) The extent of any prejudice suffered by the respondent (to the appeal), - Tomko v Palasty (No 2) (2007) 71 NSWLR 61at [55] (per Basten JA) but note also [14], Nanschild v Pratt [2011] NSWCA 85 at [39] to [42]; and (4) It may be appropriate to go further into the merits of an appeal if the explanation for the delay is less than satisfactory or if the opponent has a substantial case of prejudice and, in such a case, it may be relevant whether the appellant seeking an extension of time can show that his or her case has more substantial merit than merely being fairly arguable - Tomko v Palasty (No 2) (2007) 71 NSWLR 61 at [14] (per Hodgson JA, Ipp JA agreeing at [17]) and Molyneux v Chief Commissioner of State Revenue [2012] NSWADTAP 53 at [58]-[59]." Reasons for not accepting late appeal 1. Mr Z opposes leave being granted to accept the late appeal because he says Mr X has not provided a satisfactory explanation for the delay. Mr Z concedes that the length of the delay is not substantial and that he would not be prejudiced if the time to appeal is extended. 2. The length of the delay, just over 6 weeks, is not substantial nor will the other parties suffer any significant prejudice if the time for lodging the appeal is extended. 3. The reason for the delay, as set out in Mr X's Notice of Appeal is as follows: "I contacted NCAT on Friday 22 December 2023, before the written statement of reasons was published to confirm that I was lodging an appeal. I was advised to wait for the written reasons After waiting for the written reasons and having difficulty completing the application in time, I contacted NCAT on Wednesday 13 March 2024, and was advised that it would be OK to be late but to lodge it as soon as practical. This is what I have done." 1. We do not understand Mr X to be submitting that he was told that it was "OK" to lodge out-of-time in the sense that the Tribunal would necessarily accept his late application. When asked during the hearing why he failed to lodge the appeal within time, Mr X said that there was a lot of documentation to prepare and he had to arrange for the Tribunal's decision to be printed. They are not satisfactory reasons for a delay of over six weeks. But the main reason we have decided to refuse to extend time for Mr X to lodge the appeal is that the appeal has virtually no prospects of success. Prospects of success on appeal Background and orders sought 1. On three occasions between 2015 and 2020, Ms W appointed one or more of her adult children as her enduring guardian and/or attorney. On 4 August 2022, in response to an application for review of those appointments, the Tribunal made a 12-month guardianship order for Ms W appointing the NSW Public Guardian (the 2022 Guardianship Order). In addition, the Tribunal made a 12-month financial management order committing the management of Ms W's estate to the NSW Trustee and Guardian (the 2022 Financial Management Order). 2. As required by ss 25(2)(b) and 25N of the Guardianship Act 1987 (NSW), the Tribunal conducted an end-of-term review of the 2022 Guardianship and Financial Management orders. In addition, the Tribunal considered applications made by Mr X and Mr Z for review of those orders. 3. After conducting those reviews, on 17 November 2023 the Tribunal decided to make a 12-month guardianship order and to appoint the Public Guardian as Ms W's guardian. The Tribunal decided not to revoke the 2022 Financial Management Order. Instead, the Tribunal decided to revoke the appointment of the NSW Trustee and Guardian and to appoint two of Ms W's sons, Mr Z and Mr A, jointly as her financial managers. 4. Mr X has appealed from the 17 November 2023 decision. The orders he seeks in relation to his mother's guardianship and financial management arrangements are: a declaration that Ms W's appointment of Ms Y as her enduring guardian and power of attorney in 2020 is invalid; a declaration that Ms W's appointment of Ms Y as her enduring power of attorney (EPoA) in 2020 is invalid; and a declaration that the instruments revoking Mr Z's appointment as enduring guardian and appointing Ms Y as her enduring guardian in 2017 are invalid. These orders are sought on the basis of Ms Y's alleged undue influence over Ms W, and Ms W's expressed wishes while she had capacity. Mr X also seeks orders that he be appointed as his mother's attorney, and that he and Mr Z be appointed jointly as his mother's enduring guardians. 5. In addition, Mr X sought orders that various changes Ms W made to her will be declared invalid and that he be appointed as the executor of her will. The Tribunal has no power, either when hearing original applications or on appeal, to change a person's will. Grounds of appeal 1. If permission were granted for Mr X to appeal out of time, he would only be entitled to appeal on a question of law. He would have to obtain the Appeal Panel's permission or "leave" to appeal on a question other than a question of law, such as a question of fact: Civil and Administrative Tribunal Act 2014 (NSW), s 80(2). 2. The question Mr X identified as a question of law was: "[M]y EPoA (was not activated. This is incorrect: it was activated by Dr Cameron on April 2, 2019, with a Certificate of Incapacity." 1. If permission were granted for Mr X to appeal out-of-time, the Appeal Panel would be highly unlikely to find that this ground identifies a question of law. Whether or not the EPoA was "activated" is likely to be characterised as a question of fact. For that reason, Mr X's ground of appeal "on a question of law" has minimal prospects of success. 2. As well as the above "question of law", Mr X identified six alleged "errors of fact" or purported failures to make factual findings for which leave to appeal would be required. He elaborated on those matters under the headings: "Mum's mental state"; "Mum was responsible for the legal documents made in 2020"; "[Ms Y] has credibility based on the roles Mum gave her"; "[Ms Y] did nothing wrong in sending $12,000 to her son"; "[T]his dispute does not require further investigation" and "statements by me". 3. Although the appeal is from the 17 November 2023 decision, many of Mr X's grounds of appeal assert that the Tribunal made incorrect factual findings at the 15 June 2022 directions hearings and in the 4 August 2022 decision. These findings were said to be "repeated" by the Tribunal in the reasons for decision under appeal. Mr X submits that the Tribunal did not undertake a proper forensic analysis of the evidence or address the issues he has raised asserting that various factual findings were incorrect. In some instances, Mr X submits that the Tribunal made no factual finding about certain matters when findings should have been made. 4. Mr Z's response is that the appeal is misconceived because the Notice of Appeal refers to the Tribunal's 17 November 2023 decision, but the orders sought do not relate to the proceedings the subject of that decision. Rather, Mr X is seeking a rehearing of the original applications which were decided by the Tribunal on 4 August 2022. Principles for granting leave to appeal 1. The principles on which the Tribunal may grant leave to appeal on grounds other than a question of law were summarised in Collins v Urban [2014] NSWCATAP 17 at [84]; "The general principles derived from these cases can be summarised as follows: (1) In order to be granted leave to appeal, the applicant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [19] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; (2) Ordinarily it is appropriate to grant leave to appeal only in matters that involve: (a) issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; or (c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed, BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [20] and the authorities cited there, SAB v SEM [2013] NSWSC 253 at [8] and [9] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45];" Likelihood of success of appeal 1. To evaluate the likelihood of success of any grounds of appeal, we identify below the key issues the Tribunal had to decide and the findings the Tribunal made. 1. Whether Ms W is someone for whom the Tribunal could make an order because she has a disability which prevents her from being able to make important life decisions? Based on a report prepared by a geriatrician dated 12 September 2023, the Tribunal found at [14]-[16] that Ms Y is such a person. 1. Should the Tribunal make a guardianship order and what order should be made? At [17]-[35], the Tribunal addressed the considerations listed in s 14(2) of the Guardianship Act. At [21], the Tribunal noted that "there continues to be a high level of mistrust between [Ms Y] on the one hand and [Mr X and Mr Z] and there are allegations of dishonesty and deceit. There was a continuing dispute about where [Ms W] should live". At [35], the Tribunal decided to exercise the discretion to make a guardianship order and to give the guardian the functions of accommodation, health care and authority to consent to medical and dental treatment. 1. Who should be the guardian? At [49]-[51] the Tribunal found that neither Mr Z nor Mr A met the requirements of the Guardianship Act, to be appointed as a guardian, specifically, to be "able to exercise the functions" conferred by the guardianship order: Guardianship Act, s 17(1)(c). Having made those findings, the Tribunal had no option but to appoint the Public Guardian. 1. Who should be the financial manager? Neither Mr X nor Ms Y sought to be the financial manager. At [77],[78] the Tribunal found that Mr Z and Mr A each were "suitable" people to be appointed to manage their mother's estate (Guardianship Act, s 25M(1)(a)) and, that it was in their mother's best interests that they be jointly appointed as her financial managers. 1. We address each of the alleged errors identified in the grounds of appeal below. In assessing the prospects of success of these grounds of appeal, we need to determine the likelihood that the Tribunal would grant leave to appeal on the basis of these grounds. 2. The "question of law" ground of appeal is that the Tribunal was wrong to find that Mr X's EPoA was not activated. Mr X referred to a medical report from Dr Bruce Cameron dated 2 April 2019 stating that Ms W's "medical conditions render her unable to fully manage her affairs without assistance". 3. In the appeal, Mr X could not point to any part of his Application for Review or the material he filed in support, where he had raised the issue of the activation of the EPoA. In any case, even if he did raise that issue, it was not relevant to any issue the Tribunal had to decide. In the proceedings the subject of the decision under appeal, Mr X did not put himself forward as a suitable guardian. On appeal he said that he and Mr Z should be appointed jointly. The Tribunal decided that Mr Z was not "suitable" and had no option but to appoint the Public Guardian. That conclusion does not depend on whether the Tribunal was wrong to find that Mr X's EPoA was not activated. 4. Two related factual errors were said to be "Mum's mental state" and "Mum was responsible for the legal documents made in 2020". The Tribunal is said to have accepted legal documents as valid when they were not valid. At [34](2), the Tribunal referred to Mr X's submission: "I had regard to the detailed submission made by [Mr X] and his proposal . . .a focus of his submission relates to historical events regarding the making of multiple appointments for attorney and enduring guardianship appointment by [Ms W], his allegations of misconduct against [Ms Y] and criticism of the Tribunal's reasons for making the guardianship order. I could see no basis for seeking to unravel these past events…" 1. These grounds of appeal are not supported by any evidence or submissions in the material Mr X lodged with the Tribunal. In any event, the validity of instruments executed in 2017 and 2020 were not material questions of fact that the Tribunal was required to decide. The relevant issues were as we have outlined above. 2. Another alleged error was that the Tribunal found that "[Ms Y] did nothing wrong in allegedly giving $12,000 from Ms Y's estate to her son". Mr X submits that although the Tribunal did not mention that matter, it is implicit in the Decision that the Tribunal made a finding to that effect. At [66], the Tribunal noted: NSWTG state that NSWTG has not found evidence to support [Mr X's] allegations against [Ms Y] regarding exploitation and missing furniture. 1. No finding was made about this allegation and the Tribunal was not required to make a finding about it. Ms Y did not put herself forward for appointment as her mother's financial manager, so the question of whether she was suitable for appointment did not arise. Furthermore, Mr X could not point to any part of his evidence or submissions to the Tribunal where he referred to that allegation and asked the Tribunal to make a finding about it. 2. Mr X also alleged that the Tribunal found that Ms Y has "credibility based on the roles Mum gave her". There is no finding to that effect in the Decision. In any case, Ms Y did not put herself forward to take on the role of guardian or financial manager, so her "credibility" was not an issue the Tribunal needed to determine. 3. Mr X submitted that the Tribunal made an incorrect finding that the dispute does not require further investigation. That finding is said to be implicit in the Tribunal's statement, "I could see no basis for seeking to unravel these past events" : Decision at [34](2). Mr X refers to submissions he made and feedback he received in the first directions hearing. The Tribunal was only required to make findings about facts relevant to the exercise of its power to review the 2022 Guardianship and Financial Management Orders. 4. The appeal has virtually no prospects of success for the following reasons. First, Mr X has failed to identify a question of law. Secondly, the so-called findings of fact, failure to make findings or failure to investigate, for which leave to appeal is required, were either not findings made by the Tribunal or were not the subject of any evidence or submissions to the Tribunal. Thirdly, and even more fundamentally, none of the challenged findings of fact were material, or findings that the Tribunal was required to make to resolve the issues in the proceedings. 5. The length of the delay is relatively short and there is no prejudice to the other parties. Mr X's reason for late lodgement is not satisfactory, but the main reason for not accepting the appeal out of time is that it has virtually no prospects of success. Orders 1. Leave to appeal out of time is refused. 2. The appeal is dismissed. ********** 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: 24 February 2025