DYH v Public Guardian

NCAT Appeal Panel|2021-09-10|Before: Dr J

Solicitors: DYH (self-represented and representing other appellants) Crown Solicitor (Respondent) File Number(s): 2021/178829 Publication restriction: The disclosure of the names of PQX, DYH, EIV, ENC and the relatives of PQX, referred to in these reasons for decision, is prohibited. Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Administrative and Equal Opportunity Division Citation: [2021] NSWCATAD 136 Date of Decision: 24 May 2021 Before: JS Currie, Senior Member File Number(s): 2020/00341901; 2021/00011720

REASONS FOR DECISION

This is an appeal from two decisions of the Tribunal, conducting an administrative review of decisions of the Public Guardian. Those decisions concerned the accommodation of an elderly woman with dementia and access visits by the woman's daughter.
For the reasons which follow, we have dismissed the appeal.

The Tribunal's decision

The Tribunal's task, when determining an application for an administrative review of the Public Guardian's decisions, is to decide what the correct and preferable decision is having regard to the material then before it (Administrative Decisions Review Act 1997 (NSW), s 63(1)). The Tribunal recognised this in its reasons (see DYH v Public Guardian [2021] NSWCATAD 136 at [10] and [19]).
As the Tribunal acknowledged (DYH v Public Guardian [2021] NSWCATAD 136 at [29]-[30] and [72]), the principles under s 4 of the Guardianship Act 1987 (NSW) were relevant to its determination as to the correct and preferable decision. Section 4 of the Guardianship Act imposes a duty on persons exercising functions under that Act to observe certain principles. It provides: 4 General principles It is the duty of everyone exercising functions under this Act with respect to persons who have disabilities to observe the following 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.

Accommodation decision

When reviewing the accommodation decision, the Tribunal took into account the appellants' position that the application of the principles concerning the importance of preserving the family relationships and cultural and linguistic environment of the protected person and the need to protect her from neglect, abuse and exploitation (Guardianship Act, s 4(e) and (g)) indicated that the Public Guardian's decision was not the correct and preferable decision.
The first daughter submitted to the Tribunal that the protected person should be placed in a care facility where Greek is spoken, which would facilitate her access to family members and preserve her cultural and linguistic environment. The Tribunal acknowledged that those submissions had "some persuasive weight" (at [85]). However, it considered that allowing the protected person to remain in her home would not deprive her of her cultural and linguistic environment (at [90]). It also considered that the protected person's accommodation at home preserved some of her family relationships (at [89]). It was not satisfied that there was a real prospect of neglect, abuse or exploitation of the protected person in her home environment (at [91]). The Tribunal also found, having regard to the evidence of the protected person's own wishes, that the Public Guardian's decision was the one which would best promote the welfare and interests of the protected person (at [99]).
For these reasons, the Tribunal affirmed the accommodation decision.

Access decision

When reviewing the access decision, the Tribunal found that there was "clear evidence of some estrangement and possible animosity" between the protected person and the first daughter (at [106]). It observed that the Public Guardian had proposed a trial access arrangement (by making the access decision) as a "possible foundation for more regular access between" the protected person and members of her family. The Tribunal found that the access decision is the decision which would best promote the protected person's welfare and interests (at [116], [121]).
For these reasons, it affirmed the access decision.

Public Guardian's application for non-publication and non-disclosure orders

The Public Guardian made an application for non-publication and non-disclosure orders under s 64(1) of the NCAT Act. The non-publication and non-disclosure orders were sought in relation to the names of staff of the Public Guardian involved in the management of the protected person's person, and names of staff of the NSW Trustee and Guardian involved in the management of the protected person's estate.
The Public Guardian sought the following orders: 1. In proceedings 2021/00178829, the names of officers of NSW Trustee and Guardian (including the Public Guardian) who are witnesses be anonymised. 2. There be no publication or broadcast to third parties of the names of officers of: (a) NSW Trustee and Guardian (including the Public Guardian) from time to time involved in the management of PQX's person or estate. 3. There be no disclosure to third parties of the names of officers of: (a) NSW Trustee and Guardian (including the Public Guardian) from time to time involved in the management of PQX's person or estate. 4. Nothing in orders 2 & 3 prohibit a person from referring by name to such an officer in any initiating process, formal complaint, submission or evidence which is filed by it with any governmental body or agency (including a court, tribunal or legally constituted investigatory commission) having authority to adjudicate on or investigate the conduct of NSW Trustee and Guardian (including the Public Guardian). 5. Non-disclosure of the confidential exhibit to the Appellants.
As can be seen from the orders, the Public Guardian sought to rely upon a confidential exhibit in support of her application.
The orders sought go beyond orders which relate to these proceedings. The proposed orders apply to officers of the NSW Trustee and Guardian, notwithstanding that it is not a party to the proceedings. Further, they purport to prohibit the disclosure of the names of officers of the Public Guardian from time to time involved in the management of PQX's person or estate, irrespective of whether the officer has any connection with these proceedings. In their current form, the proposed orders would purport to prohibit the disclosure of the name of a person who has not, at the time of this decision, been appointed as an officer, but who is appointed as an officer of the Public Guardian afterwards.
In our view, the purpose of s 64(1) of the NCAT Act is to authorise orders prohibiting disclosures and publications which relate in some way to the proceedings. Such orders may be made, bearing in mind that the "concept of 'open justice', that is, the requirement that proceedings be conducted publicly and in open view (Russell v Russell (1976) 134 CLR 495 at 520) is the starting point in all matters before the Tribunal" (Kostov v Ecclesia Housing Limited (No 4) [2018] NSWCATAP 241 at [18]).
Having regard to the breadth of proposed orders 2 to 4, and the principle of open justice, we are not satisfied that it is desirable to make those orders, within s 64(1) of the NCAT Act.
Proposed Order 1 relevantly requires the names of witnesses to the proceedings, who are officers of the NSW Trustee and Guardian or Public Guardian, to be anonymised. There were no witnesses who gave evidence before the Appeal Panel. Further, an order that persons' names be anonymised is not an order authorised by s 64(1) of the NCAT Act, although anonymisation may be the effect of an order prohibiting the disclosure of the name of any person under s 64(1)(a). It is the practice of the Appeal Panel, as presently constituted, not to refer to the names of individuals where that is not necessary for a decision, and it has not done so in this case.
For these reasons, we do not consider that it is desirable to make proposed Order 1. It would serve no useful purpose.
We are satisfied that it is desirable to make Order 5, prohibiting the disclosure of the confidential exhibit to the appellants. The Appeal Panel (differently-constituted) made orders on 27 August 2021, permitting the Public Guardian to file open evidence and submissions in support of her non-disclosure application, and also to file "(in an envelope suitably marked) any confidential evidence and submissions." The Public Guardian filed the confidential exhibit in reliance upon those orders.
It is desirable to make an order prohibiting the disclosure to a party of material filed on a confidential basis in support of non-publication or non-disclosure orders, so that parties are not discouraged from applying for such orders if they consider that it is appropriate to do so (see Pendrick v Commissioner of Police, NSW Police Force [2021] NSWCATAD 326 at [46]; Pollard v Commissioner of Police, NSW Police Force [2021] NSWCATAD 227 at [41]).
For these reasons, we have decided to make an order, under s 64(1)(d) of the NCAT Act, prohibiting the disclosure of the confidential exhibit, filed by the respondent, to the appellants.

Non-disclosure and non-publication orders made of Appeal Panel's own motion

The Tribunal may, of its own motion, make non-publication and non-disclosure orders under s 64(1) of the NCAT Act.
The decision at first instance records that a non-publication order was made as follows: "The publication of the name of any of the Applicants and of the person subject to the decision under review is prohibited under s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW)." As far as we are aware, no equivalent order has been made on appeal.
Section 65 of the NCAT Act prohibits the publication of the names of witnesses, the person to whom the proceedings relate and certain other persons, for proceedings in the Guardianship Division. The protected person is a person to whom proceedings in the Guardianship Division relate, as she has been subject to guardianship orders made by the Tribunal. However, the administrative review of a decision made by the Public Guardian is assigned to the Administrative and Equal Opportunity Division. Section 65 of the NCAT Act does not apply, on its terms, to such a decision or to an appeal from such a decision.
The policy which underlies s 65 of the NCAT Act is that the identity of persons the subject of guardianship orders should be protected. Having regard to that policy, and to the circumstance that a non-publication order was made in the proceedings below, we are satisfied that it is desirable to make a non- disclosure order, of our own motion, in respect of the protected person, the appellants (all of whom are her relatives), and all other relatives of the protected person. We have accordingly made an order under s 64(1)(a) of the NCAT Act, prohibiting the disclosure of the names of the protected person, the appellants, and the protected person's relatives who are referred to in these reasons.

Leave to appeal out of time

The decision under appeal is dated 24 May 2021. There is no evidence to suggest that the appellants did not receive the decision on that date.
The appeal was filed on 22 June 2021.
Rule 25(4)(c) of the Civil and Administrative Tribunal Rules 2014 (NSW) (NCAT Rules) relevantly provides that, if rule 25(4)(a) and (b) do not apply (as is the case here), an internal 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 that decision (whichever is the later). The appeal was lodged 29 days after 24 May 2021.
We may extend time for lodging the Notice of Appeal pursuant to s 41 of the NCAT Act. The appellants did not indicate that they were applying for an extension of time to appeal on their Notices of Appeal. Their position is that the appeal was filed within time and they do not need an extension of time. However, it is clear that the appellants wish to prosecute the appeal and that it was, in fact, lodged out of time. We note that the Appeal Panel may extend the period of time for the lodging of an appeal of its own motion (NCAT Act, s 41(1)).
The relevant principles which might generally inform the exercise of our discretion to extend time were set out in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 at [22]. Relevant factors to consider include length of the delay, the reason for the delay, whether the appellant has a fairly arguable case and the extent of any prejudice suffered by the respondent.
The Public Guardian does not object to an extension of time for the lodging of the appeals and, it may be inferred, would not suffer any prejudice if time were to be extended. In addition, the delay is very short, being only one day. The appellants are self-represented and apparently considered that the appeals were lodged within time. In these circumstances, we have decided to extend time for the lodging of the appeals to the date of filing (being 22 June 2021).

Grounds of appeal

The appellant may appeal as of right in respect of any question of law and otherwise requires leave to appeal: Civil and Administrative Tribunal Act 2013 (NSW) ("NCAT Act"), s 80(2)(b).
In Collins v Urban [2014] NSWCATAP 17 at [84], the Appeal Panel stated that 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."
Although these principles were articulated in the context of an appeal from a decision of the Consumer and Commercial Division, they apply equally to an appeal from a decision of the Administrative and Equal Opportunity Division (see, for example, Destination NSW v Taylor [2019] NSWCATAP 123 at [58]; Alam v Insurance and Care NSW [2020] NSWCATAP 215 at [31]; Thomas v Commissioner of Police, NSW Police Force (No 2) [2019] NSWCATAP 76 at [25]).
The Notices of Appeal state under "Grounds of Appeal": "Seeking leave, no error in law." The amended appeal grounds do not appear to us to raise a question of law. Although they refer to there being "no evidence" for certain factual propositions, this is in the context of an argument that the Tribunal's decision is against the weight of evidence. When the Notice of Appeal is read as a whole, we do not consider that the appellants are raising a "no evidence" ground (which would raise a question of law).
Accordingly, the appellants need leave to appeal in respect of each of their grounds.
The appellants have identified extensive grounds of appeal. These may be summarised as follows: 1. The Tribunal's decision was against the weight of evidence, including because the Public Guardian did not provide documents to support her decisions; because the daughter has a close and loving relationship with the protected person but was not consulted; and because there was no evidence supporting the Public Guardian's view that the protected person does not want to see the daughter. 2. The Tribunal should have given more weight to various aspects of the evidence, including the evidence that the appellants have been seeking to visit the protected person since 29 May 2019; that the access and accommodation decisions were made over a year after the relevant proposals; that the Public Guardian did not "exercise" the access decision (that is, allow the daughter access); that there is undue influence on the protected person from the daughter's siblings; and that a medical report dated 15 October 2020 does not support the conclusion that the protected person is conflicted or anxious about the daughter. 3. New evidence is available that was not reasonably available at the Tribunal hearing. That includes evidence of the Public Guardian's failure to "exercise" the access decision (or to provide the daughter with access to the protected person), copies of messages from the second daughter, evidence that the second daughter's daughter was arrested, and evidence of the aggressive behaviour of the second daughter as carer for the protected person, and the second daughter's behaviour in cutting of the protected person from communication with the husband, the first daughter, the grandson and a large number of other people.
The Public Guardian's position is that the appeal should be dismissed. She submits that an appeal is not an opportunity for a dissatisfied party to re-argue the case he or she put at first instance (Norsk Dor Pty Limited v Tuxfend Pty Limited [2020] NSWCATAP 183 at [46]).

Were the Tribunal's decisions against the weight of evidence?

We will deal with the first and second grounds together, as they are closely related to one another.
In support of their grounds, the appellants filed a large volume of material, and several submissions, submissions in reply and additional submissions. Much of this material was not directly relevant to the grounds advanced by the appellants.
The appellants appeared to hold the erroneous view that the Appeal Panel is a general review body which, like the Tribunal, makes the correct and preferable decision on the evidence before it at the time of its decision. The appellants were not always focused upon identifying error in the Tribunal's decision-making.
When assessing whether the Tribunal's decision was against the weight of evidence, it is necessary to have an understanding of the evidence which was before it.
The appellants relied upon statutory declarations, made in July 2020, in support of their appeal. One was from the first daughter's cousin (the niece of the protected person) who testified to the daughter and the protected person having a close and loving relationship until the son "changed the locks and threw them out," when the protected person was first diagnosed with dementia. The cousin stated that, in 2018, the protected person was expressing sadness that the daughter and the grandson had been kept from seeing her.
A friend of the first daughter stated in a statutory declaration that the protected person was residing on her own with the assistance of the first daughter and the grandson and that they shared a close and loving relationship. He stated that when the protected person returned from Cyprus, he was informed that the first daughter was physically abused by the son and thrown out of the house on 4 October 2018. The protected person has, in the friend's view, been isolated and "prompted to talk and think" by the son and the second daughter. He recounted an incident where he attended the family home with the daughter on 26 October 2019 seeking to gain entry, and the police later arrived. He says he was informed by the police that the son had told the protected person that the friend and the first daughter had come to kill her. He also stated that the second daughter and the son "were involved in substantial money extortion" of the protected person's accounts.
There are a number of other statutory declarations upon which the appellants rely, ranging in date from April 2019 to early August 2019, and then September 2020. They testify to matters such as the close relationship between the first daughter and the protected person, the aggressive conduct of the son and the effect of the actions of the second daughter and the son in isolating the protected person.
It does not appear, however, that these statutory declarations were before the Tribunal. The Tribunal made no mention of them when it summarised, in its reasons, the documentary material which was before it upon which the appellants relied (at [55]). Nor did the Tribunal member refer to them in the appellants' transcription of the hearing, where the Tribunal member set out the documents which were before him (Appeal Book p 247C). The appellant did not refer to the statutory declarations when making submissions at the hearing, according to her transcription of the hearing. The dates of the statutory declarations are consistent with them having been prepared for other Tribunal proceedings. We find, on balance, that the statutory declarations relied upon by the appellants were not before the Tribunal.
The Tribunal had before it a report from a psychiatrist dated 18 November 2020, obtained by the Public Guardian (referred to in the reasons at [38]-[39]). The psychiatrist expressed the opinion that the protected person's living arrangements were suitable and there was no need to move her into higher level care. The Tribunal referred to this report as confirmation of the protected person's strong view that she does not wish to live anywhere other than her home (at [95], [101]).
The Tribunal also had before it evidence of the Public Guardian as to an officer's visits to the protected person's home, and conversations with her over the telephone with the aid of a Greek interpreter (at 36, [93]).
The appellants have not established that the Public Guardian did not provide documents to support her decisions, as they alleged. It appears, from the Tribunal's reasons, that, in addition to the evidence referred to above, the Public Guardian provided a written statement of reasons for the accommodation decision and the access decision (see at [45] and [94]). It may be, as the appellants claim, that the Public Guardian did not provide "support system report, Greek interpreter details, dates of visits, how was the details obtained, by telephone, face to face contact, who was present, any names of friends or relatives to support the information of the report" (see Amended Appeal Grounds, 7(a)). However, if that is the case, that is not an error on the part of the Tribunal. The Tribunal was obliged to weigh the evidence which was before it. It could not take into account evidence which was not before it.
The appellants make other complaints about the Public Guardian, including that the Public Guardian had not consulted with them, and that the delays by the Public Guardian affected the protected person and her family emotionally. Further, they say that the Public Guardian never reviewed the issue of why the protected person does not want to see the daughter. None of these complaints identifies any error in the Tribunal's decision-making.
If the appellants are implicitly submitting that the Tribunal should have made decisions in their favour because certain evidence was not provided by the Public Guardian, or the Public Guardian did not conduct certain inquiries, we do not accept that premise. The Tribunal's role is to determine the correct and preferable decision on "the material then before it" (Administrative Decisions Review Act 1997, s 63(1)). The deficiencies identified by the appellants may have affected the strength of the evidence relied upon by the Public Guardian or the strength of the Public Guardian's position. However, we are not satisfied that it follows that the Tribunal's decision was against the weight of evidence.
Much of the evidence to which the appellants say the Tribunal should have given more weight is not relevant to its decision-making. If it is the case that both the access decision and the accommodation decision were made a year after the daughter's proposal, as the appellants claim, that may identify some unwarranted delay in the Public Guardian's decision-making. However, that does not mean the decisions she ultimately made are not the correct and preferable decisions. Similarly, the appellants' concerns that the Public Guardian has not acted on the access decision do not identify a defect in the decision the Public Guardian made. The Tribunal does not have jurisdiction to review the Public Guardian's implementation (or lack of implementation) of a decision; its jurisdiction is limited to a review of the decision itself.
Some of the matters raised by the appellants have more potential relevance to the Tribunal's review. The appellants say that the Tribunal failed to give adequate weight to the "undue influence" on the protected person from the second daughter and son, and their methods to keep the family separated from the protected person, which have been violent and aggressive. They also say that the Tribunal failed to recognise the physical abuse of the second daughter towards the first daughter. They submit that the psychiatrist's report of 22 November 2020 demonstrates the second daughter to be "slack" with the care of the protected person and does not provide any evidence that the protected person is conflicted or anxious about her first daughter.
However, even these matters are not centrally relevant to the decision about the first daughter's access to the protected person, or to the decision as to whether the protected person should be moved into a nursing home or remain at home. The appellants have identified "facts" which they say the Tribunal should have given more weight to, but have generally not identified the evidence supporting those facts. In many cases, the alleged facts are bare assertions.
The Tribunal took into account the appellants' allegations in its reasons. It acknowledged the "allegations of previous disruptive behaviour and an alleged assault by [the son] upon [the first daughter], for which an Apprehended Violence Order was issued against him" but stated that the protected person was not the person in need of protection under that order (at [87]). It took into account the disruptions to family relationships in which the son had an "active role" but did not find that to be determinative (at [89]).
We note that, although the second daughter lived in the property with the protected person at the time of the accommodation decision, she did not live there at the time of the Tribunal's decision. It seems she continued to act as the protected person's carer. The circumstance that the second daughter was no longer living with the protected person means that the evidence about the conduct of the second daughter is of less relevance to the Tribunal's accommodation decision than it otherwise would have been.
We are not persuaded that the Tribunal's decision was against the weight of evidence, or that it erred by failing to give more weight to particular aspects of the evidence on which the appellants rely. The evidence before the Tribunal comprised much assertion and hearsay. The appellants have not persuaded us that the Tribunal erred, nor that there is a circumstance which would justify the grant of leave to appeal. For example, we do not consider that they have established that there is "an injustice which is reasonably clear, in the sense of going beyond merely what is arguable," or "a factual error that was unreasonably arrived at and clearly mistaken" (to use the language of Collins v Urban).

Fresh evidence

The appellants sought to rely upon a significant amount of evidence which was not before the Tribunal. This includes: 1. bank statements in the name of the protected person, which are said to provide evidence of exploitation of the protected person (presumably by the son and/or the second daughter); 2. correspondence between the Public Guardian's staff members and the first daughter; 3. messages apparently sent by the second daughter to the first daughter, making comments such as "No amount of botox will change your ugly personality!!!" and addressing the first daughter as "you narcissistic bi-polar sociopath"; 4. a video said to have been recorded on 19 July 2021 which appears to show a woman (said to be the first daughter) walking across the road to embrace an elderly woman (said to be the protected person) in the presence of another woman (said to be the second daughter), with the second daughter eventually guiding the protected person into a car, then having an argument with the first daughter. The video is accompanied by a description of the incident, apparently written by the first daughter; 5. the Public Guardian's failure to "exercise" the access decision; and 6. the statutory declarations referred to above.
Section 80(3) of the NCAT Act confers on the Appeal Panel a discretion, if the grounds warrant, to determine an appeal by way of a "new hearing", and, in such a case, to "permit such fresh evidence" to be adduced as it "considers appropriate". The appellants did not seek to have their appeal determined by way of a new hearing. We do not consider that the appellants' grounds warrant proceeding by way of new hearing in any event. That does not necessarily mean, however, that the appellants are unable to rely upon their new evidence. New evidence may, in some circumstances, be relied upon in an appeal which is not by way of new hearing. An appeal such as this one is akin to a rehearing, with the ability to receive further evidence if appropriate (Ros v Commissioner of Police [2020] NSWCATAP 70 at [32]; Joel v Commissioner for Fair Trading (No 2) [2021] NSWCATAP 304 at [58]).
The Appeal Panel considered an application to adduce fresh evidence on an appeal in Mo v ABC Homes NSW Pty Ltd [2019] NSWCATAP 16. That was an appeal from a decision of the Consumer and Commercial Division, which was accordingly governed by cl 12(1) of Sch 4 to the NCAT Act. That clause restricts the grant of leave to appeal from a decision of the Consumer and Commercial Division, relevantly, to circumstances where the Appeal Panel is satisfied the appellant may have suffered a substantial miscarriage of justice because significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with). The clause does not have any application in these proceedings.
The Appeal Panel in Mo v ABC Homes NSW Pty Ltd [2019] NSWCATAP 16 rejected the new evidence, then said (at [40]): "The conclusion we have reached in the above paragraph is not just based upon the specific requirements of cl 12 of Sch 4 of the NCAT Act. In addition, it is necessary to say that there is an important policy behind the restriction on the introduction of fresh evidence in an appeal. Cases must be properly prepared, heard and finalised. If a party who is unsuccessful were to be allowed to introduce fresh evidence subsequently, the risk would be that the case would not be finalised but would be reopened for the purposes of the fresh evidence being considered. It is in the interests of justice that there be finality to disputes between parties, and finality is not assisted if fresh evidence is allowed to be introduced after the first instance hearing has concluded and should not be allowed expect in limited circumstances."
We agree that the principle of finality in decision-making is an important policy which tends against the admission of new evidence on an appeal.
In ZAC, ZAD, ZAE, v ZAF, NSW Trustee and Guardian, Public Guardian, ZAG [2016] NSWCATAP 110, the Appeal Panel considered an application to admit fresh evidence in an appeal from a decision of the Guardianship Division. The Appeal Panel stated (at [45]): "A party seeking to adduce fresh evidence in an appeal may only do so with the leave of the Appeal Panel and in accordance with well-established principles (see, for example, Gallagher v R [1986] HCA 26; (1986) 160 CLR 392, 402 (Mason and Deane JJ), 399 (Gibbs CJ); QP v RP [2014] NSWCATAP 59, [34]-[37])."
In QP v RP [2014] NSWCATAP 59, an appeal from a decision of the Guardianship Division, the Appeal Panel stated (at [37]), in response to an application to adduce new evidence: "It is the decision at first instance that the Appeal Panel must examine. It is not relevant to an examination of that decision whether the circumstances have changed since that time."
The Appeal Panel has observed, on other occasions, that the power to receive further evidence on appeal would ordinarily be construed on the basis that it is to be exercised for the correction of error by the first instance decision maker (Joel v Commissioner for Fair Trading (No 2) [2021] NSWCATAP 304 at [60]; Ros v Commissioner of Police [2020] NSWCATAP 70 at [33]-[35]). It is generally not relevant to the examination of a first instance decision in administrative review proceedings whether the circumstances have changed since that time (Ros v Commissioner of Police [2020] NSWCATAP 70 at [34]).
In Ros v Commissioner of Police [2020] NSWCATAP 70 at [33], the Appeal Panel summarised the relevant principles concerning the admission of further evidence as follows: "Generally speaking, the further evidence sought to be admitted would have to relate to the Tribunal's decision at first instance and have been evidence which was relevant at the time to that decision (BCL v NSW Trustee and Guardian [2014] NSWCATAP 18 at [26]-[28]). Whether it is likely the further evidence would have produced a different result at the Tribunal is relevant: BCL v NSW Trustee and Guardian [2014] NSWCATAP 18 at [26]-[28]; Mielczarek v Commissioner of Fair Trading [2016] NSWCATAP 217; Building Professionals Board v Hans [2008] NSWADTAP 13. Any potential prejudice to the other party upon the receipt of further evidence is also relevant: Lettau v Artwork Transport Pty Ltd at [25]. Whether the further evidence would allow the Appeal Panel to consider whether, with the benefit of hindsight, it has been demonstrated that serious injustice has resulted or will, in fact, result from the exercise of the Tribunal's discretion, may also be relevant: ZNX v ZNY [2020] NSWCATAP 41 at [25]."
We respectfully agree with all of those observations. In our view, the new evidence on which the appellants seek to rely was either reasonably available prior to the Tribunal hearing, is unlikely to have produced a different result and/or does not demonstrate that a serious injustice resulted from the exercise of the Tribunal's discretion.
The bank statements on which the appellants seek to rely as new evidence are from 2018. They could, in our opinion, have been obtained before the Tribunal hearing, by way of a summons. The statutory declarations and correspondence with the Public Guardian were, presumably, in the appellants' possession at the time of the hearing. The text messages from the second daughter were either available before the hearing, or if they were not, would not be unlikely to have led to a different result. We do not consider that the video, which post-dates the hearing, would be likely to lead to a different result. At most, the text messages and video show the second daughter behaving aggressively and with hostility towards the first daughter. They do not demonstrate that the accommodation decision or the access decision were not (or were probably not) the correct and preferable decision or assist in correcting any error made by the Tribunal.
For these reasons, we have decided not to admit the new evidence. Accordingly, the appellants' ground of appeal which relies on the fresh evidence cannot succeed.

Conclusion

For the reasons given above, we are not satisfied that leave should be granted to the appellants to appeal on grounds which do not raise a question of law. They have not identified any error in the Tribunal's decision-making and they have not identified any persuasive discretionary reason why leave should be granted.
Accordingly, we have refused leave to appeal and we have dismissed the appeal.

Costs

The Public Guardian sought, in her submissions, an order that the appellants pay her costs in accordance with s 60 of the NCAT Act.
The starting position is that each party to proceedings in the Tribunal is to pay the party's own costs (NCAT Act, s 60(1)). However, the Tribunal may award costs if it is satisfied that there are special circumstances warranting an award of costs (NCAT Act, s 60(2)).
It is appropriate that the parties be given an opportunity to make an application for costs, and to reply to any such application, with the benefit of our decision and reasons. We have made orders accordingly.
It is our preliminary view that the issues for determination in any costs application could be adequately determined in the absence of the parties by considering any written submissions or any other documents or material lodged with or provided to the Tribunal (NCAT Act, s 50(2)). However, if a costs application is made, and a party considers that a hearing of the costs application is desirable, the party may make submissions to that effect.

Orders

We make the following orders: 1. The time for the appellants to lodge a Notice of Appeal is extended to 22 June 2021. 2. The disclosure to the appellants of the confidential exhibit, filed by the respondent, is prohibited. 3. The respondent's application for orders under s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) is otherwise dismissed. 4. The disclosure of the names of PQX, DYH, EIV, ENC and the relatives of PQX, referred to in these reasons, is prohibited. 5. Leave to appeal is refused. 6. The appeal is dismissed. 7. Any party who seeks an order for costs is to file any submissions and evidence as to costs, on which the party relies, within 14 days. 8. Any party against whom a costs order is sought is to file any submissions and evidence in response within a further 14 days. 9. The costs applicant may reply within a further 7 days. 10. The parties are to address, in their submissions on costs, whether a hearing of the costs application should be dispensed with.

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: 10 December 2021

(Administrative Decisions Review Act 1997(NSW)

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Judgment (16 paragraphs)

Parties

Legislation Cited (5)

Cases Cited (21)

Cited By (2)