ELQ v Public Guardian

1. The Tribunal then applied the legal principles it had identified to the findings of fact it had made. The Tribunal's reasoning, particularly at [72], [75] and [84], was that the applicants had failed to provide any evidence supporting their case that ED should be re-located to the Central Coast.
2. The Tribunal recited the history of a previous application for administrative review made by ELQ which resulted in a decision that ED not be re-located to the Central Coast: ELQ v Public Guardian [2021] NSWCATAD 184. The Tribunal was not persuaded that the appellants had advanced their case any further since that decision was made: Decision at [82]. The Tribunal's reasoning was that "the applicants have failed to provide any evidence to support their assertion of alternate accommodation for ED at the Central Coast". On that ground alone, the Tribunal concluded that their case was "lacking in substance".
3. The Tribunal went on to find at [86] that, at least since July 2023, the applicants had caused the proceedings to be significantly delayed and that that delay amounts to a "want of prosecution". Despite the matter having been listed for hearing on three occasions, those hearings did not go ahead because the applicants failed to provide evidence supporting their case that ED should be re-located. They did not provide a reasonable explanation for that failure.
4. Having found that the proceedings lacked substance and there had been a want of prosecution, the Tribunal gave reasons for exercising the discretion in s 55 of the NCAT Act to dismiss the proceedings: Decision at [90] - [91].

1. The principles for the granting of leave to appeal from interlocutory decision were considered by the Appeal Panel in Champion Homes Pty Ltd v Guirgis [2018] NSWCATAP 54 at [35] where the Appeal Panel said:

As stated in various decisions of the Tribunal and its predecessor, the Administrative Decisions Tribunal, the principles to be applied are to be derived from the principles applicable to leave applications in courts: see for instance, Johnston v Department of Education and Training (GD) [2007] NSWADTAP 6 and BHM v BHN & Ors [2014] NSWCATAP 26. These principles include the following:

(1) It is unnecessary and unwise to lay down rigid rules of practice or exhaustive criteria governing the grant of leave to appeal: Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39; (1981) 148 CLR 170 at 175; [1981] HCA 39;

(2) However, the requirement for leave is a filter restricting access to the appeal process: Coulter v R (1988) 164 CLR 350; [1988] HCA 3 at 359 per Deane and Gaudron JJ;

(3) Leave should only be granted where there are substantial reasons to allow an appellate review: Johnson Tiles Pty Ltd v Esso Australia Ltd [2000] FCA 1572; [2000] 104 FCR 564;

(4) Circumstances justifying leave may be an error of principle resulting in substantial injustice: Minogue v Williams [2000] FCA 125. However, these concepts may not be cumulative;

(5) There is a difference between the exercise of a discretion concerning a matter of practice and procedure and an exercise of a discretion that determines substantive rights: Adam P Brown per Aickin, Wilson and Brennan JJ at 177 citing with approval Jordan CJ in In re Will of FB Gilbert (dec) [1946] NSWStRp 24; at 323;

1. With reference to (9) above, the Appeal Panel summarised the principles on which permission to appeal may be given when the appeal is not on a question of law in Collins v Urban [2014] NSWCATAP 17 at [84]:

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]

1. The grounds of appeal are set out in a "statement" of ELQ dated 6 August 2024 and in another annexure to the Notice of Appeal. The Notice of Appeal does not seek leave to appeal, nor does it clearly articulate the grounds on which leave should be granted. We note that the appellants provided responses to questions as to why the Tribunal's decision was not "fair and equitable" even though those grounds of appeal only relate to appeals from a decision by the Consumer and Commercial Division of the Tribunal. Despite that misunderstanding, we have considered those grounds in determining whether we can discern grounds of appeal that may justify giving permission to appeal: Cominos v Di Rico [2016] NSWCATAP 5 at [13].
2. The appellants' grounds of appeal can be summarised as follows:

1. Flick goes on to refer to the case of Comcare v Holt (2007) 94 ALD 576; 2 AWR 3334; [2007] FCA 405; [2007] ALMD 5710. The claimant in that case lived in Alice Springs and was an adherent to the Buddhist faith. In the past he had been approved to attend a meditation retreat at Brisbane. Comcare contended that an equivalent experience was available elsewhere. In dismissing an appeal, Mansfield J concluded at [30] that as "a matter of common sense, if Comcare wished the AAT to find that the Northern Territory Buddhist Society would probably offer a retreat with similar benefits in Alice Springs, more evidence in support of that assertion was desirable. In a practical sense, in the particular circumstances, such evidence would have been adduced by Comcare. That is not to impose any onus of proof upon Comcare."
2. Similarly, in this case, if the appellants wanted the Tribunal to find that there is suitable accommodation for ED on the Central Coast, some evidence in support of that assertion is necessary. That is not to say that either party has the legal onus of proof; merely that, from a practical point of view, evidence is required to support assertions of this kind by either party.
3. The Tribunal's conclusion that the application lacked substance because of the absence of expert evidence from the appellants does not justify leave being granted for the appeal to proceed.

1. The Tribunal identified the duty in s 4 of the Guardianship Act and discussed its scope at [64] - [67] of the decision. At [90] the Tribunal expressly identified the "protective nature of these proceedings where the welfare and interest of ED is paramount" as a relevant factor in determining whether to exercise the discretion to summarily dismiss the application. The Tribunal also mentioned at [91], "the welfare and interests of ED that this dispute over his accommodation be finalised".
2. The appellants cited BTK v The Public Guardian [2015] NSWCATAP 89 and BZE v NSW Public Guardian [2015] NSWCATAP 64. In the current proceedings the Tribunal was not deciding whether or not to make a guardianship order. It was deciding whether to exercise the discretion in s 55(1) of the NCAT Act to dismiss the proceedings. Consequently, no question of law arises in relation to the applicability of s 14(2) of the Guardianship Act. However, when exercising the power under s 55(1) of the NCAT Act in relation to the review of a decision by the Public Guardian, the Tribunal has a duty to observe the principles in s 4 of the Guardship Act.
3. In the Tribunal's reasons for decision the factors in s 4 of the Guardianship Act, were clearly articulated and taken into account. Section 4 does not mean that where a discretion exists, the Tribunal must make a particular decision: WL v NSW Trustee and Guardian [2011] NSWADTAP 22 at . This ground of appeal does not justify leave being granted for the appeal to proceed.

(1981) 148 CLR 170

(1988) 164 CLR 350

(1991) 32 FCR 195

(1936) 56 CLR 221

(1991) 33 FCR 397

(1984) 1 FCR 354