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[2025] NSWCA 148
respondent. The Court substituted “Public Guardian” as first respondent in place of “NSW Trustee and Guardian”, refused leave to appeal, and made no order as to costs.
The Court of Appeal refused SY permission to appeal the dismissal of his challenge to the Public Guardian's appointment for VY. It said SY had not shown a matter of legal principle, public importance, or sufficiently clear injustice. The Court also noted that NCAT would review the order in October 2025 and that SY would be entitled to notice and to be heard at that review. The Court corrected the first respondent's name and made no costs order.
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2,281 words · generated 06/10/2026
SY applied for leave to appeal from a decision of Lindsay J dismissing his challenge to orders of the New South Wales Civil and Administrative Tribunal (NCAT). The orders appointed the Public Guardian as guardian for VY, one of SY's sons. The Court of Appeal, constituted by Leeming JA and Adamson JA, refused leave on 8 July 2025. It also corrected the first respondent's name and made no order as to costs (judgment [1], [15]-[18]).
4 cited instruments linked from this judgment.
The dispute began after VY was hospitalised in Belgrade, Serbia, in a psychotic state. SY commenced proceedings in NCAT in 2023 seeking a guardianship order with a view to facilitating VY's return to Australia. On 14 December 2023, NCAT appointed the Public Guardian for four months under a limited order. The order gave the Guardian custody of VY to the extent necessary to perform advocacy and health care functions (judgment [2]).
SY challenged that decision in the Supreme Court. During directions hearings, VY appeared and told the Court that he did not need a guardian. He also said that, if one were appointed, he did not want SY to be the guardian (judgment [3]). On 12 April 2024, NCAT reviewed the order and continued the Public Guardian's appointment for 18 months. The order included functions concerning accommodation, health care, services, travel outside Australia and VY's passport. It also required the Guardian to take reasonable steps to explain issues to VY and obtain and consider his views before significant decisions (judgment [4]).
The primary judge dismissed SY's challenge on 24 December 2024 (judgment [5]). The reasons recorded that SY wanted the guardianship role partly because he felt that public health professionals had not listened to him. The primary judge also found that VY needed a guardian, that VY strongly preferred that SY not be appointed, and that SY was not then suitable for the role. The reasons added that SY remained free, as VY's carer and a “significant other”, to provide information and make representations to public health authorities (judgment [6], [8]).
The primary judge considered the statutory appeal limits under Sch 6, cl 14 of the Civil and Administrative Tribunal Act 2013 (NSW). The judgment records that an appeal from the relevant NCAT order was limited, absent leave, to a question of law and that no question of law had been identified. The primary judge also considered the Court's parens patriae jurisdiction, describing its exercise as appropriate only in exceptional circumstances and not as a way to subvert the routine procedures of a specialist tribunal (judgment [7]).
On the leave application, SY relied on his medical expertise, his close relationship with VY, and his view that VY's objection was a product of what he called “inversion of feelings” during psychosis. He also argued that the state of psychiatric services made his appointment particularly important (judgment [10]). The Court noted that these submissions largely repeated arguments rejected below (judgment [11]).
The decisive question was whether SY had met the threshold for leave to appeal. The Court stated the test from Cheng v Motor Yacht Sales Australia Pty Ltd t/as The Boutique Boat Company: an applicant must demonstrate an issue of principle, a question of general public importance, or a reasonably clear injustice that goes beyond something merely arguable (judgment [12]).
The Court dealt separately with the possible grounds. It concluded that SY had identified neither an issue of principle nor a question of general public importance. It then considered his claim that it was unjust for the Public Guardian to be appointed instead of him. The Court acknowledged that SY regarded the result as a “reasonably clear injustice”, but said that this question had to be assessed objectively. On the material before it, the Court was not persuaded that there was injustice beyond what was merely arguable (judgment [13]).
That assessment was made in the context of the arguments presented, including SY's account of VY's opposition to his appointment. SY said the opposition reflected “inversion of feelings”, meaning that VY's psychosis caused him to hate those he would normally love. The judgment records that explanation but does not accept it as establishing the requisite injustice. Nor does the Court provide a separate clinical finding about that explanation. Its conclusion is confined to the appellate leave test (judgment [10], [13]).
The scheduled NCAT review was also relevant to the Court's account of the procedural setting. The guardianship order was to be reviewed on 12 October 2025. Section 25(4) of the Guardianship Act 1987 (NSW) required notice of the review to be served on each party. Because SY had been the applicant in NCAT, the Court said he would receive notice and be entitled to be heard, relying on GR v Secretary, Department of Communities and Justice [2023] NSWCA 239. It added that SY could raise his application to be appointed guardian at that review, where NCAT could decide the matter on its merits (judgment [14]).
The Court therefore refused leave. The result does not decide whether SY should be appointed guardian at a future review. The judgment expressly identifies that as a matter SY could raise before NCAT, which had power to decide it on the merits (judgment [14]-[15]).
There were also two ancillary matters. First, the Public Guardian's counsel requested a correction to the first respondent's name, referring to ss 3 and 77 of the Guardianship Act. The Court ordered that “Public Guardian” be substituted for “NSW Trustee and Guardian” (judgment [16], [18]). Second, because the Public Guardian did not seek costs, the Court made no order as to costs (judgment [16], [18]).
The judgment does not describe a change in the law. It applies an existing leave-to-appeal threshold, citing Cheng, and refers to the statutory review process for guardianship orders. The decision is best understood as an application of those stated principles to SY's application, rather than as a new rule or a modification of earlier doctrine (judgment [12]-[15]).
The appellate threshold stated in the judgment has three possible components: an issue of principle, a question of general public importance, or a reasonably clear injustice beyond what is merely arguable. The Court found that SY had not established any of them. It did not elaborate a general test for identifying every kind of “reasonably clear injustice”; it said the assessment is objective and applied that standard to the material before it (judgment [12]-[13]).
The Guardianship Act review point is distinct from the leave test. The Court referred to s 25(4) as requiring notice of the scheduled review to be served on each party. It then stated that SY, as the original NCAT applicant, would be entitled to receive notice and be heard. The judgment does not set out the full statutory scheme or consider other possible review rights, so the explanation should be read within those stated limits (judgment [14]).
The judgment also recounts the primary judge's discussion of the statutory restriction on appeals from NCAT and the parens patriae jurisdiction. That discussion is part of the procedural history and concerns the primary judge's reasons. The Court of Appeal's stated basis for refusing leave was the failure to meet the leave threshold, together with the upcoming NCAT review; it did not independently develop the parens patriae issue in its reasons (judgment [7], [12]-[15]).
Accordingly, the “after” position shown by this judgment is narrow: the Public Guardian remained appointed under the NCAT order, leave to appeal was refused, and NCAT was to review the order on 12 October 2025. The judgment does not state what NCAT later decided, or whether there have been subsequent changes to the law.
At [12], the Court said that a leave applicant must show “an issue of principle, a question of general public importance or a reasonably clear injustice going beyond something which is merely arguable.” In plain English, disagreement with the result, or an arguable complaint, is not by itself enough under the test the Court applied. The applicant must show one of the specified grounds at the required level.
At [13], the Court stated that “whether something amounts to a reasonably clear injustice is to be determined objectively.” This means that the applicant's sincere view that the outcome is unjust does not settle the issue. The Court assesses the asserted injustice itself against the leave threshold. Here, it was not persuaded that SY's case went beyond what was merely arguable.
At [14], the Court explained that SY would receive notice of the NCAT review and would be entitled to be heard. It added that he could “re-agitate” his application to be appointed guardian at that review. In plain English, refusal of leave did not prevent SY from putting his guardianship application before NCAT at the scheduled review. The Court described NCAT as able to decide that issue on its merits.
At [18], the formal orders record the result: the respondent's name was corrected, leave was refused and no order as to costs was made. Those orders define the immediate procedural outcome. They do not decide what NCAT should determine at the later review.
The decision is most directly relevant to an application for leave to appeal from a decision dismissing a challenge to NCAT guardianship orders, where the applicant must satisfy the threshold set out in Cheng. The central feature is not simply that the dispute concerns guardianship; it is that the applicant seeks permission to appeal and must identify a qualifying issue of principle, general public importance or sufficiently clear injustice (judgment [1], [12]-[13]).
It may also be relevant where an applicant describes an adverse guardianship outcome as plainly unjust but the alleged injustice depends on contested assessments of suitability, relationships, or the views of the person subject to the order. In this case, the Court recorded SY's position about his expertise and VY's objection, but found that his submissions did not establish the objective leave threshold (judgment [10], [13]). The decision does not establish a universal rule about how a family member's suitability must be assessed.
The scheduled review is another relevant feature. The Court considered the available merits-review process, including notice and the opportunity for SY to be heard, when explaining why leave was not warranted in this case (judgment [14]-[15]). The judgment does not say that a future review will always be an answer to an appeal, or that it removes any otherwise available appeal right. Its reasoning is tied to the statutory review date and circumstances identified in this matter.
This precedent should not be stretched to decide whether a particular person is suitable to act as guardian. The Court of Appeal did not determine that substantive question on the merits. It decided whether to grant leave. The primary judge's findings about SY's suitability are recounted as background, rather than converted by the Court of Appeal into a general rule for future cases (judgment [8]-[9], [15]).
The provided judgment does not identify any later court decisions treating SY v Public Guardian. It was delivered on 8 July 2025, and the material supplied contains no subsequent cases citing, applying, distinguishing or criticising it. No conclusion about its later treatment can therefore be drawn from this source.
The authorities it does cite are earlier decisions, not later treatment of this judgment. Cheng is cited for the leave-to-appeal threshold at judgment [12]. GR v Secretary, Department of Communities and Justice is cited for the notice and participation point concerning the NCAT review at judgment [14]. These are authorities used by the Court in its reasoning, not decisions on the later treatment of SY v Public Guardian.
The judgment itself is procedural and focused on the leave application. The source provides no information about what happened at the October 2025 NCAT review or in any later proceeding. Those matters should not be inferred from the Court's statement that SY could raise his application at the review.
The judgment leaves the merits of SY's application to be guardian unresolved. It says that SY could re-agitate the application before NCAT at the scheduled review and that NCAT could decide it on the merits. The Court of Appeal did not decide whether SY was suitable or whether the Public Guardian should remain appointed after review (judgment [14]-[15]).
The judgment also does not determine the truth or legal significance of SY's explanation that VY's objection reflected “inversion of feelings”. It records that submission, but the leave decision rests on the conclusion that the asserted injustice did not meet the objective threshold. It does not make a clinical finding about VY's condition or give a general rule about how decision-makers should treat a person's stated preferences during psychosis (judgment [10], [13]).
Nor does the judgment comprehensively analyse the scope of the Guardianship Act or the NCAT Act. It refers to s 25(4) of the Guardianship Act for notice of review, and to ss 3 and 77 in connection with correcting the respondent's name. It recounts the primary judge's discussion of Sch 6, cl 14 of the NCAT Act and parens patriae jurisdiction, but does not provide an extended appellate interpretation of those provisions or doctrines (judgment [7], [14], [16]).
Finally, the judgment does not establish what happened after the scheduled review, whether any further appeal was brought, or how later courts have applied its reasoning. Those remain open on the material provided.
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on this, relying on it, or using any draft, have it checked by a qualified Australian lawyer.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: SY v Public Guardian [2025] NSWCA 148
Hearing dates: 4 July 2025
Decision date: 08 July 2025
Before: Leeming JA; Adamson JA
Decision: (1) Substitute “Public Guardian” as the first respondent in lieu of “NSW Trustee and Guardian”.
(2) Refuse leave to appeal.
(3) Make no order as to costs.
Catchwords: APPEAL — whether leave to appeal ought be granted from decision of primary judge dismissing appeal from NSW Civil and Administrative Tribunal — no issue of principle, question of public importance or serious injustice demonstrated
GUARDIANSHIP — Public Guardian appointed to VY — decision reviewable in October 2025 — grant of leave not warranted
Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), Sch 6, cl 14
Guardianship Act 1987 (NSW), ss 3, 25, 65, 77
Cases Cited: Cheng v Motor Yacht Sales Australia Pty Ltd t/as The Boutique Boat Company (2022) 108 NSWLR 342; [2022] NSWCA 118
GR v Secretary, Department of Communities and Justice [2023] NSWCA 239
Category: Procedural rulings
Parties: SY (Applicant)
Public Guardian (First Respondent)
VY (Second Respondent)
Representation: Counsel:
Self-represented (Applicant)
B J Dean (First Respondent)
No appearance (Second Respondent)
Solicitors:
Not applicable (Applicant)
Crown Solicitor’s Office (First Respondent)
Not applicable (Second Respondent)
File Number(s): 2025/36456
Publication restriction: Publication or broadcasting of the names of the applicant or the second respondent is prohibited: Civil and Administrative Tribunal Act 2013 (NSW), s 65
THE COURT: SY, the applicant (the plaintiff in the Court below) seeks leave to appeal from the orders made by Lindsay J (the primary judge) on 24 December 2024 in the Equity Division of this Court (the Court below) dismissing his amended summons seeking review of orders made by the New South Wales Civil and Administrative Tribunal in its Guardianship Division (NCAT) on 12 April 2024: SY v Public Guardian [2024] NSWSC 1669. On that date, NCAT confirmed the Public Guardian (the first respondent in this Court and the first defendant in the Court below), in the office of guardian for VY (the second respondent in this Court and the second defendant in the Court below), one of the applicant’s sons, for a period of 18 months from the date of the order.
SY commenced the proceedings in NCAT in 2023 which arose from the circumstance that VY was hospitalised in Belgrade, Serbia in a psychotic state. SY sought a guardianship order in respect of VY with a view to facilitating his return to Australia. On 14 December 2023, NCAT made an order appointing the Public Guardian as VY’s guardian for a period of four months. The guardianship order was a limited guardianship order which gave the Public Guardian custody of VY to the extent necessary to carry out the functions of advocacy and health care.
SY challenged NCAT’s order by filing a summons in the Court below on 21 December 2023, which was subsequently amended on 9 February 2024. At a directions hearing before the primary judge on 19 February 2024 and 9 April 2024, the primary judge noted that VY appeared before the Court below (he was a party to the proceedings as second defendant) and informed the Court that he did not need a guardian but that if a guardian were to be appointed, his guardian ought not be SY.
On 12 April 2024, as referred to above, NCAT made the following orders:
The guardianship order for [the second defendant] made on 14 December 2023 has been reviewed. The order now is as follows:
1 The Public Guardian is appointed as the guardian.
2 This is a continuing guardianship order for a period of 18 months from 12 April 2024.
3 This is a limited guardianship order, giving the guardian(s) custody of [the second defendant] to the extent necessary to carry out the functions below.
FUNCTIONS:
4 The Guardian has the following functions:
(a) Accommodation
To decide where [the second defendant] may reside.
(b) The Guardian may authorise others, including members of NSW Police and the Ambulance Service of New South Wales to:
(i) take [the second defendant] to a place approved by the Guardian.
(ii) keep them at that place.
(iii) return them to that place should leave it.
(c) Health care
(i) To decide where [the second defendant] may receive.
(d) Services
To make decisions about services to be provided to [the second defendant].
(e) Travel
To make decisions about whether or not [the second defendant] can travel to any place outside Australia.
(f) Passport
To make a decision about whether or not the passport of [the second defendant] should be surrendered to the Guardian or some other authority the Guardian nominates pending a decision by the Guardian concerning travel.
CONDITIONS:
5 The condition of this order is:
(g) Standard Condition
In exercising this role the Guardian shall take all reasonable steps to bring [the second defendant] to an understanding of the issues and to obtain and consider their views before making significant decisions.
On 24 December 2024, the primary judge dismissed SY’s challenge to those orders.
In the primary judge’s reasons, his Honour noted at [32] that “[SY’s] desire to be clothed with the office of a guardian for the second defendant is a product, in part, of his frustration in not being (according to his perception) listened to by public health professionals.”
His Honour noted, at [39], that SY’s right to appeal to this Court from an order of NCAT was limited, unless leave were granted, to a question of law (cl 14(1)(b) of Sch 6 of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act)) and that none had been identified. Nor had leave to appeal been sought. The primary judge also considered whether the Court could intervene in its parens patriae jurisdiction. However, his Honour said, at [40], that this jurisdiction ought only be exercised in “exceptional circumstances” and ought not be used to subvert “the routine procedures of a specialist tribunal, such as is NCAT sitting as the Guardianship Division”.
Nonetheless, the primary judge found that NCAT’s decision was correct for the following reasons which were identified at [43] as follows:
(a) as both [SY] and the Public Guardian contend, [VY] is a person in need of a guardian.
(b) the strong preference of [VY] is that [SY] not be appointed as his guardian.
(c) without reflection on the good character of [SY], he is not, at the present time, a suitable person to be appointed as [VY’s] guardian.
(d) as his son’s carer and a “significant other”, [SY] is free to provide information about [VY’s] circumstances to public health authorities and to make representations to them concerning [VY’s] treatment.
46 [SY] is not, at the present time, a suitable person to be appointed as [VY’s] guardian because, not only is such an appointment unwelcome to the son, but [SY] has (by active criticism of public health professionals charged with treating the second defendant) rendered himself persona non grata with many health professionals with whom a guardian may be required to engage.
47 The Public Guardian is by far better placed than is [SY], by reason of his own conduct, to make decisions affecting [VY] which require an objective and orderly engagement with public health professionals.
48 The fact that, on his own evidence, [SY] has established a good working relationship with [VY’s] current “treating doctor” (so described in the current community treatment order affecting [VY]) demonstrates that he does not need to occupy the office of the guardian in order to be heard in the treatment of his son.
In support of his application for leave, SY, who appeared on his own behalf, submitted that NCAT and the primary judge were wrong to refuse his application to be VY’s guardian as he was eminently suitable to carry out that role. SY relied on his own medical expertise, which he submitted enabled him to ensure that VY obtained necessary and appropriate treatment for his health conditions, as well as his close relationship with VY. SY submitted that, to the extent to which VY had expressed a desire that his father not be appointed as his guardian, this was a manifestation of “inversion of feelings”. SY explained that this expression refers to the phenomenon that, when in the grip of psychosis, sufferers hate those whom they normally, when in a non-psychotic state, love the most. SY submitted that the parlous state of psychiatric services in New South Wales made it particularly important that he be appointed VY’s guardian for the maximum period of 5 years.
SY’s submissions to this Court largely replicated his submissions to the primary judge, which were rejected by his Honour.
In order to obtain a grant of leave to appeal, the applicant must demonstrate an issue of principle, a question of general public importance or a reasonably clear injustice going beyond something which is merely arguable: Cheng v Motor Yacht Sales Australia Pty Ltd t/as The Boutique Boat Company (2022) 108 NSWLR 342; [2022] NSWCA 118 at [15] (Bell CJ).
SY has failed to identify either an issue of principle or a question of general public importance. It is clear from SY’s submissions to this Court and to the Court below that he considers there to be a “reasonably clear injustice” arising from his having been passed over as a guardian for VY in favour of the Public Guardian. Indeed, he submitted that VY’s aversion to SY’s appointment as his guardian was evidence that VY loved him the most since VY’s illness caused such inversion of feelings. However, whether something amounts to a reasonably clear injustice is to be determined objectively. We are not persuaded that there is any reasonably clear injustice beyond that which is merely arguable.
The orders of NCAT which are ultimately sought to be challenged in this Court will be reviewed by NCAT on 12 October 2025. Section 25(4) of the Guardianship Act 1987 (NSW) requires notice of the review to be served on each party to the proceedings. Thus, as SY was the applicant in NCAT, he is entitled to receive notice of a review and will be entitled to be heard at that review: GR v Secretary, Department of Communities and Justice [2023] NSWCA 239 [109]-[111] (Adamson JA), [178] (Basten AJA) and [209] (Griffiths AJA). If SY wishes to re-agitate his application to be appointed as VY’s guardian, he can do so on that occasion before NCAT, which is empowered to make a decision on the merits.
For these reasons, the Court considers that leave ought be refused.
The Court makes the following orders:
Substitute “Public Guardian” as the first respondent in lieu of “NSW Trustee and Guardian”.
Refuse leave to appeal.
Make no order as to costs.
**********
SY
Public Guardian [2025] NSWCA 148
(2022) 108 NSWLR 342
The Court substituted “Public Guardian” as first respondent in place of “NSW Trustee and Guardian”, refused leave to appeal, and made no order as to costs.
Mr Dean, who appeared on behalf of the Public Guardian, did not seek the costs of the leave application. However, he sought that the name of the first respondent be corrected to comply with ss 3 and 77 of the Guardianship Act.
The Court has referred to SY and VY by pseudonyms in deference to the prohibition of names of persons involved in proceedings in the Guardianship Division for which s 65 of the NCAT Act applies. Although s 65 does not in terms apply to the proceedings in the Court below or the application for leave in this Court (but only to appeals in the Guardianship Division of NCAT or internal appeals against such decisions), it was considered that it was preferable to use a pseudonym, at least for VY. However, as SY is VY’s father, it is necessary to use a pseudonym for SY in order to avoid identifying VY.