YDC v YDD

Publication of the names of the parties

1. The publication or broadcast of the name of any person, who is mentioned or is otherwise involved in an internal appeal against decisions made by the Tribunal is prohibited under s 65(1) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act). Being an official report of the appeal proceedings, that prohibition does not apply to these Reasons for Decision due to s 65(3) of the NCAT Act. Nonetheless, because of the sensitive nature of the matters raised in these proceedings, we will not refer to the parties by name but use the descriptors as previously noted.

Background to appeal

1. A guardianship order was first made in respect of the Subject Person on 12 November 2020. The Cousin was appointed as the subject person's guardian with decision making authority about the Subject Person's accommodation, health care, services and medical and dental treatment.
2. On 11 May 2021, the Cousin was appointed as the Subject Person's private financial manager subject to the directions and authorities of the NSW Trustee and Guardian.
3. On 11 November 2021, a statutory review of the guardianship order was conducted. A further 12-month guardianship order was made with the same functions as included in the 2020 order. The Cousin was reappointed as guardian.
4. The statutory review of the guardianship order made on 11 November 2021 was listed for hearing on 8 November 2022. Shortly before the commencement of that hearing, the Appellant filed a written request to be joined as a party to the review proceedings. On 8 November 2022, instead of proceeding with the statutory review, the Tribunal adjourned the hearing to a date to be confirmed by the Registry. It did not determine the Appellant's application to be joined as a party.
5. Amongst other matters raised in his written request to be joined as a party, the Appellant noted:

• It was not until 27 August 2022 that the Appellant found out that the Cousin had been appointed as the guardian for the Subject Person. The Appellant was concerned that he had been deliberately excluded from previous hearings.
• On the same date, according to the Appellant, the Cousin told family members that he had arranged for the Subject Person to be transferred to a disability accommodation provider. The Appellant noted that the Cousin was recently the Chair of the same disability accommodation provider and was still a Director of that organisation. The disability accommodation provider had recently been involved in a serious incident involving one of its clients. The Appellant was concerned that the Cousin has a conflict of interest in choosing the disability accommodation provider for the Subject Person as he oversaw inadequate safeguards in his governance role which increases future risks for the Subject Person.
• The Appellant proposed that the Public Guardian is appointed as guardian instead of the Cousin "given the high level of family conflict, dating back to at least 2016".

1. The statutory review was subsequently listed for hearing on 24 January 2023.
2. At a directions hearing conducted on 18 January 2023, the Appellant was joined as a party to the statutory review. The Tribunal registry was directed to send to the Appellant copies of all documents related to the review proceeding.
3. On 24 January 2023, the statutory review was conducted (2023 review proceeding). A further 12-month guardianship order was made in respect of the Subject Person with the same functions included in the order. The Cousin was reappointed as guardian. It is this decision that is the subject of these appeal proceedings (decision under appeal).

Statutory framework

1. The decision under appeal arose from a statutory review under s 25(2)(b) of the Guardianship Act 1987 (NSW) (the Act) of a previous guardianship order made on 11 November 2021. When conducting a statutory review and determining which of its powers in s 25C(2) of the Act to exercise (to renew, to renew and vary, or to allow the guardianship order to lapse) a Tribunal must have regard to the mandatory considerations listed in s 14(2) of that Act and the general principles set out in s 4 of that Act: IF v IG [2004] NSWADTAP 3 at [20].
2. Section 14(2) provides as follows: 14 Tribunal may make guardianship orders (2) In considering whether or not to make a guardianship order in respect of a person, the Tribunal shall have regard to: (a) the views (if any) of: (i) the person, and (ii) the person's spouse, if any, if the relationship between the person and the spouse is close and continuing, and (iii) the person, if any, who has care of the person, (b) the importance of preserving the person's existing family relationships, (c) the importance of preserving the person's particular cultural and linguistic environments, and (d) the practicability of services being provided to the person without the need for the making of such an order.
3. Under s 4 of the Act, it is the duty of everyone exercising functions under that Act with respect to persons who have disabilities to observe the following principles: 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.
4. Where the Tribunal makes a continuing guardianship order, s 15(3) of the Act instructs that the Tribunal must not appoint the Public Guardian where another person can be appointed as the guardian: 15 Restrictions on Tribunal's power to make guardianship orders (3) A continuing guardianship order appointing the Public Guardian as the guardian of a person under guardianship shall not be made in circumstances in which such an order can be made appointing some other person as the guardian of the person.
5. Under s 17(1) of the Act, a person shall not be appointed as a guardian unless the Tribunal is satisfied of the requirements set out in s 17(1)(a)-(c) of that Act: 17 Guardians (1) A person shall not be appointed as the guardian of a person under guardianship unless the Tribunal is satisfied that: (a) the personality of the proposed guardian is generally compatible with that of the person under guardianship, (b) there is no undue conflict between the interests (particularly, the financial interests) of the proposed guardian and those of the person under guardianship and (c) the proposed guardian is both willing and able to exercise the functions conferred or imposed by the proposed guardianship order.

Tribunal's decision

1. Mr Harper was given leave to appear as a Mackenzie Friend to the Appellant. Mr Harper is a non-lawyer advocate employed by One Door Mental Health.
2. At [10]-[15], the Tribunal considered whether the Subject Person remained a "person in need of a guardian". The Tribunal noted that everyone who participated in the hearing (save for the Subject Person) accepted that the Subject Person continued to have a disability that impairs his decision- making capacity ([14]). After referring to health professional reports provided by Dr Elaine Kwan dated 29 December 2022 and Dr Kate Willis and Mr Andrew Oehlers dated 19 January 2023, the Tribunal concluded that it was satisfied that the Subject Person was a person for whom the Tribunal could make a further guardianship order ([15]).
3. Issues around accommodation planning for the Subject Person and other areas of decision making were addressed in the reasons as follows: "[20] Mr Oehlers supported the appointment of a substitute decision maker for [the Subject Person]. He told me that the Unit [at the hospital] had trialled several discharge locations but all had met with failure. The treating team continue to work toward [the Subject Person] living in the community but there is no date for that to occur. He supported the appointed guardian being granted functions of accommodation, healthcare, medical/dental consents and services. I accepted his evidence based on his personal knowledge of [the Subject Person] and his experience of working with him. [21] …[The] NDIS Support Coordinator … works with [the Subject Person]. She provided me with the following information and submissions: (1) [The Subject Person's] discharge location is dependent on the quantum of NDIS Supported Independent Living (SIL) funding due to his high care needs. At present his package does not include active overnight supports and that limits places where he can safely reside. (2) The [disability accommodation provider] offered a place of accommodation to [the Subject Person] and [the NDIS Support Coordinator] thought it would be a good option for a 6-month trial. Unfortunately, [the Subject Person] became distressed and returned to the … Unit. (3) [The NDIS Support Coordinator] has lodged an NDIS Review, which is pending. [The NDIS Support Coordinator] is not now actively seeking new accommodation. Any accommodation would preferably be in the Penrith area. She accepted that it could realistically take more than 12 months to find accommodation appropriate to [the Subject person's] needs. (4) No decisions are forced on [the Subject Person] and he is usually willing to attempt new accommodation options. She does not support the use of an authorise other's function. [22] [The NDIS Support Coordinator] also supported the guardian being granted the functions of accommodation, healthcare, medical/dental consents and services. I accepted her evidence based on her personal experience of working with [the Subject Person]. [23] [The Cousin] told me he had worked closely with the treating team to find suitable accommodation for [the Subject Person]. Attempts to move to Llandilo and later Cambridge Park were not successful. He is a director of [the disability accommodation provider] and arranged a place for [the Subject Person] at one of its facilities. That also was not a success. [The disability accommodation provider] has now withdrawn any offer to provide accommodation to [the Subject Person]. There are no other current options on the table."
4. The Tribunal member concluded that another guardianship order should be made ([25]): "[The Subject Person] is an involuntary patient in the … Unit and has been diagnosed with chronic treatment resistant schizophrenia. He has high level care needs and so any guardian should be granted the health care and medical/dental consent functions. Further, for the eventual discharge to accommodation in the community a substitute decision maker will need both the accommodation and services function."
5. The Tribunal member made reference to the Subject Person's involvement on the hearing: "[19] [The Subject Person] had limited participation in the hearing. At one stage he locked himself in the bathroom. He did participate for a brief period by audio-visual link. He mumbled and I found his conversation difficult to follow. He told me that he did not need a guardian. He would like to go to T… House when he leaves hospital and did not want his cousin … to be reappointed as his guardian. He then left the room and did not return. Although [the Subject Person] did communicate his preferences, I was not satisfied that his views were well informed or founded on strong reasoning. [24] [The Appellant] spoke about his brother's earlier life including his early schooling and his preference for more involvement of [another brother] and [the Appellant] in their brother's life. Mr Harper supplemented [the Appellant's] evidence in that he recommended the use of four functions."
6. In relation to the issue of who should be appointed as the guardian for the Subject Person, the Tribunal member acknowledged that the Appellant did not wish to be considered for appointment and that it was only the Cousin, who wished to be appointed ([27]).
7. The Tribunal set out the statutory framework and legal principles to be applied at [28]-[32]: "[28] The Tribunal has to be satisfied that any person appointed as a private guardian meets the following requirements in accordance with section 17(1) of the Act. He/she must: (a) have a personality generally compatible with the personality of the person under guardianship; (b) have no undue conflict of interest (particularly financial) with those of the person; and (c) be able and willing to exercise the functions of the order. [29] In deciding whether a person is able to undertake the role of guardian, the Tribunal must consider whether the proposed guardian is able, having regard to the circumstances, to exercise the functions in accordance with the principles set out in section 4 of the Guardianship Act (C S and M Y v the Guardianship Tribunal and the Public Guardian (unreported) NSW Supreme Court, Windeyer J, 29 November 1999 and Re B [2011] NSWSC 1075, [66]). [30] In P v D1 & Ors [2011] NSWSC 257 the Supreme Court noted the importance of a proposed guardian being able to demonstrate insight and explain plans for how to act as guardian objectively and without conflict of interest. [31] The Tribunal is not able to appoint the Public Guardian as a person's guardian if there is a private person who can be appointed (s 15(3), Guardianship Act). [32] The Supreme Court has held that: the proper meaning to be given to the section is to read it as saying that the Public Guardian should not be appointed in circumstances in which an order can properly be made in favour of another person. That requires not only that the person be willing, reliable and responsible, but that the appointment will result in the policy considerations and principles set forth in the Act being given effect (W v G [2003] NSWSC 1170, [25])."
8. He then sets out submissions of the parties and other participants at [33]-[36]: "[33] Dr Kwan and Dr Wills/Mr Oehlers supported the appointment of the public guardian. The latter report preferred the public guardian 'given the accusations made by [the Appellant] against the health service and [the Cousin]'. Dr Kwan supported the public guardian referring to the 'divergent views of family members about [the Subject Person's] management and the negative impact of the conflict on [the Subject Person] and on family relationships'. Mr Oehlers said in his oral evidence that [the Cousin] is 'not inappropriate' but the public guardian would 'take the heat out of the family dynamic'. [34] Mr Harper submitted that there was some evidence of family conflict and supported the recommendation of the treating team. [35] [The Cousin] submitted that he has acted in a diligent and competent manner as the guardian. He has closely worked with the hospital treating team and the NDIS team and is best placed to continue that assistance. [The Subject Person] has benefitted by the combined efforts of all of those supporting him, including the current guardian. He observed that [the Subject Person's] stated concerns had only arisen since his brother [the Appellant's] recent involvement. He told me [the Subject person's] father, [named], has always supported him as the guardian. [36] [The NDIS Support Coordinator] strongly supported [the Cousin]. She told me he is easy to contact and is prompt in responding to recommendations put to him as the guardian. She also believes he is good at consulting all stakeholders. She considers [the Cousin] always puts [the Subject Person's] needs first. She agreed that there had been no observable family conflict until recently."
9. The Tribunal member concluded (at [38]) that he was satisfied that the Cousin met the requirements to be appointed as the private guardian. "[37] Weighing the evidence I was satisfied that [the Cousin] is suitable to be reappointed. He has acted diligently in the role to date and works well with the NDIS and hospital treating teams. I accepted the evidence that the relationship between [the Subject Person] and [the Cousin] was generally compatible until very recently. There is no conflict of interest (whether actual or perceived) now that any offer of an accommodation placement to [the disability accommodation provider] has been withdrawn. [The Cousin] remains ready and willing to fill the role. Finally, I am mindful that an order can properly be made appointing [the Cousin] and so it is not appropriate to appoint the public guardian."

Interlocutory matters

1. Directions were made by a differently constituted Appeal Panel on 22 March 2023 that a typed transcript of the relevant parts of the hearing, together with the sound recording of the entire hearing, should be filed in the appeal proceedings if what happened at first instance is being relied upon in the appeal. The Appellant filed a typed transcript of the hearing conducted 24 January 2023 (and the preceding directions hearings) prepared by Mr Harper. None of the other parties objected to the Transcript being relied upon in the appeal and we refer to it as appropriate in these Reasons.

Appeal framework

1. The decision under appeal in this matter is an "internally reviewable decision": NCAT Act, ss 4 and 32(4). A party may appeal an internally reviewable decision on any question of law or with the leave of the Appeal Panel on any other ground: NCAT Act, s 80(2)(b).
2. Section 81 of the NCAT Act sets out the orders that may be made on appeal: 81 Determination of internal appeals (1) In determining an internal appeal, the Appeal Panel may make such orders as it considers appropriate in light of its decision on the appeal, including (but not limited to) orders that provide for any one or more of the following: (a) the appeal to be allowed or dismissed, (b) the decision under appeal to be confirmed, affirmed or varied, (c) the decision under appeal to be quashed or set aside, (d) the decision under appeal to be quashed or set aside and for another decision to be substituted for it, (e) the whole or any part of the case to be reconsidered by the Tribunal, either with or without further evidence, in accordance with the directions of the Appeal Panel. (2) The Appeal Panel may exercise all the functions that are conferred or imposed by this Act or other legislation on the Tribunal at first instance when varying, or making a decision in substitution for, the decision under appeal.

Notice of Appeal

1. A letter dated 28 February 2023 attached to the Notice of Appeal set out seven grounds of appeal. In response to a question in the Notice of Appeal, the appellant indicated that all of the grounds of appeal relate to questions of law and that he does not seek leave to appeal the decision. Mr Harper also assisted the Appellant in this appeal and agreed that the focus of the appeal was the errors of law that the Tribunal member was said to have made.
2. The grounds of appeal set out in the Notice of appeal were as follows: 1. The Tribunal member made an error in reaching his decision to reappoint the Cousin as guardian, rather than the Public Guardian, because he did not properly apply the precedent set out in W v G [2003] NSWSC 1170. 2. The Tribunal member made an error in reaching his decision because he failed to consider the Cousin's lack of insight and plans as required by P v D1 & Ors [2011] NSWSC 257. 3. The Tribunal member failed to afford the Appellant procedural fairness because neither the Cousin nor the NDIS Support Coordinator made any written submissions confirming their position in the lead up to the proceedings and he was, as a result, disadvantaged in the presentation of his case. 4. The Tribunal member failed to afford the Appellant procedural fairness by withholding relevant documents, namely, a report written by Dr Kwan dated 21 October 2020. 5. The Appellant was a party to the original guardianship proceedings heard in 2020 as he falls within the definition of "carer" under ss 3F(2)(d) and 3D of the Act but because he was not included in the earlier proceedings, it was procedurally unfair for the Tribunal member to proceed on this occasion. 6. In deciding to appoint the Cousin as guardian, the Tribunal member failed to apply the principle set out in s 4(g) of the Act that the Subject Person should be protected from neglect and abuse. 7. In deciding to appoint the Cousin as guardian, the Tribunal member failed to consider the Subject Person's views and the importance of the preservation of the Subject Person's existing family relationships, both of which are mandatory considerations under ss 14(2)(a) and 14(2)(c) of the Act.
3. In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 the Appeal Panel set out at [13] a non-exclusive list of questions of law that is summarised as follows: "1. Whether there has been a failure to provide proper reasons; 2. Whether the Tribunal identified the wrong issue or asked the wrong question; 3. Whether a wrong principle of law had been applied; 4. Whether there was a failure to afford procedural fairness; 5. Whether the Tribunal failed to take into account relevant (i.e., mandatory) considerations; 6. Whether the Tribunal took into account an irrelevant consideration; 7. Whether there was no evidence to support a finding of fact; and 8. Whether the decision is so unreasonable that no reasonable decision-maker would make it."
4. In Cominos v Di Rico [2016] NSWCATAP 5, the Appeal Panel stated at [13]: [13] It may be difficult for self-represented appellants to clearly express their grounds of appeal. In such circumstances and having regard to the guiding principle, it is appropriate for the Appeal Panel to review an appellant's stated grounds of appeal, the material provided, and the decision of the Tribunal at first instance to examine whether it is possible to discern grounds that may either raise a question of law or a basis for leave to appeal. The Appeal Panel has taken such an approach in a number of cases, for instance, Khan v Kang [2014] NSWCATAP 48 and Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69. However, this must be balanced against the obligation to act fairly and impartially (Bauskis v Liew [2013] NSWCA 297 at [68] citing Hamod v State of New South Wales [2011] NSWCA 367 at [309]-[316]). Relevantly, s 38(2) provides that that Tribunal "may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice."
5. Taking these principles into account, having regard to the Notice of Appeal, the Appellant's written submissions and the oral submissions made by the Appellant and Mr Harper, we understood the questions of law raised in this appeal to be: 1. Whether the Tribunal failed to apply the correct legal principles in reappointing the Cousin as the Subject Person's guardian as set out in W v G [2003] NSWSC 1170 (Ground 1) 2. Whether Tribunal failed to apply the correct legal principles that required the Tribunal member to consider whether the Cousin demonstrated insight and explain plans for how to act as the Subject Person's guardian objectively and without conflict of interest as required by P v D1 & Ors [2011] NSWSC 257 (Ground 2) 3. Whether the Tribunal failed to afford procedural fairness to the Appellant: 1. By failing to offer to the Appellant the opportunity to request an adjournment of the hearing on 24 January 2023 in order to allow the Appellant a proper opportunity to respond to the evidence of the Subject Person's NDIS Support Coordinator 2. By failing to provide to the Appellant a copy of a report of Dr Kwan dated 21 October 2020 3. By failing to recognise the Appellant as a statutory party to the original guardianship application in 2020 4. (Grounds 3, 4 and 5) 1. Whether the Tribunal failed to take into account the mandatory considerations set out in ss 4(g) and 14(2)(a)-(b) of the Act (Grounds 6 and 7).

Replies to appeal

1. The Cousin did not file any material in advance of the appeal hearing. At the appeal, his position was that the Tribunal had not made any error of law and that the appeal should be dismissed.
2. We contacted the hospital in which the Subject Person is a patient. A nurse took a mobile telephone to the Subject Person and asked whether he wished to take part in the appeal and/or speak with the appeal panel members. The Subject Person declined to do so.
3. The Public Guardian did not participate in the hearing.

Whether the Tribunal failed to apply the legal principles set out in W v G [2003] NSWSC 1170 when it reappointed the Cousin as guardian (Ground 1)

1. The Appellant contended that in deciding to reappoint the Cousin as the Subject Person's guardian, rather than the Public Guardian, the Tribunal member failed to consider whether the Cousin could "properly" be appointed as the guardian for the Subject Person in accordance with W v G [2003] NSWSC 1170. This necessitates findings "not only that the person be willing, reliable and responsible, but that the appointment will result in the policy considerations and principles set forth in the Act being given effect" (at [25]). In the Appellant's submission, the Tribunal failed to have regard to that part of the judgement in W v G that gave an example of the circumstances in which a finding may be made that person could not be properly appointed, namely, where the "Tribunal considered the evidence established that such a decision was likely not to be in the interests of the person under guardianship" (at [26]).
2. Had the Tribunal properly applied the precedent set out in W v G of the Act, it would not have reappointed the Cousin. The Tribunal member had failed to consider the evidence of the poor relationship between the Subject Person and the Cousin and the resulting impact that appointing the Cousin as guardian could have on the Subject Person's relationship with others and the psychosocial stressors he may experience.

Consideration

1. The sentence highlighted by the Appellant in the decision of W v G should be read in context. Paragraph [26] of the decision reads in its entirety: "[26] While s 15(3) must be interpreted within the context of the Act and in accordance with its principles, it must be given effect within those bounds. In Lunacy and Mental Health proceedings it has always been the policy to appoint a member of the family as committee or guardian of the person if that were possible. The policy is continued under the Act which created the office of Public Guardian. Just because a decision is required about accommodation and there is some dispute about this does not mean that a close family member holding one view ought not to be appointed. On the other hand if the Tribunal considered the evidence established that such a decision was likely not to be in the interests of the person under guardianship then the person who would make such a decision would not be a person who could properly be appointed under s 15(3). In other words what is described as a "contest" is not sufficient reason not to appoint a person otherwise appropriate as guardian. This may mean that the Tribunal has to consider the evidence in some little detail. In the present case for instance, accepting that Mrs W, if appointed guardian, would retain the existing arrangements for the accommodation for Mrs G at Bundanoon, the Tribunal would need to decide whether that fact meant that Mrs W could not properly be appointed so that the appointment of the Public Guardian was authorized pursuant to s 15(3)."
2. Read in context, it is evident that his Honour was stating that when considering the potential appointment of a private guardian and there is dispute about a decision that the proposed guardian would make if appointed, the fact of that dispute, or "contest", is not sufficient reason in and of itself to not appoint the proposed guardian. The task that must be undertaken in such circumstances is a careful examination of the evidence to determine whether, in the Tribunal's view, the decision that would be made by the proposed guardian is or is not likely to be in the best interests of the person who will be the subject of the guardianship order. If the Tribunal finds on the evidence that the decision is likely not to be in the person's interests, then the person who would make such a decision cannot properly be appointed under s 15(3) of the Act.
3. In terms of the application of these principles to the decision under appeal, to the extent that there was any "contest" about particular decisions, the issue of the Subject Person's long-term accommodation appeared to be the critical area for decision-making under a renewed guardianship order. The Tribunal member referred in detail to the evidence about this issue (at [20]-[23] - see paragraph [21] above). Whilst the Appellant was critical of the Cousin's asserted inaction and conflict of interest about the accommodation issue and the evidence (at [23]) that there "are no other current options on the table", the Tribunal member appears to have accepted the explanation for the difficulties experienced in securing long-term accommodation set out in the evidence summarised at those paragraphs. This included the need to secure funding applied that would provide for an adequate accommodation model for the Subject Person, rather than it being the result of inaction by the Cousin. He also found that there was no conflict of interest (whether actual or perceived) between the interests of the Cousin and the Subject Person (at [37]). It was in the context of the evidence concerning the accommodation issue, in part, that the Tribunal member described the Cousin as having "acted diligently in the role to date and works well with the NDIS and hospital treating teams" and "remains ready and willing to fill the role" (at [37]).
4. The Tribunal member can be seen to have undertaken the kind of examination of the evidence that Windeyer J in [26] of W v G suggested is taken when a "contest" exists about a particular decision. He concluded that the Cousin would continue to make decision under a renewed order in the Subject person's best interests. No error is revealed in the approach taken by the Member in this respect.
5. To the extent that the Appellant contends that the Tribunal otherwise erred in its application of ss 15(3) and 4(a) of the Act, this is not borne out by an examination of the reasons for the decision under appeal.
6. Before appointing a person to act as the guardian of the person under guardianship, the Tribunal must satisfy itself that the proposed guardian satisfies each of the three matters listed in s 17(1) of the Act. By the combined operation of ss 15(3) and 17(1) of the Act, if satisfied that a proposed guardian meets the criteria for appointment listed in s 17(1) of that Act, the Tribunal is precluded from appointing the Public Guardian as the guardian.
7. The Tribunal's acknowledgement (at [27]) that the Cousin was the only person who wished to be considered for the appointment, and that his "suitability" for the role then had to be considered against the requirements of ss 17(1) and 15(3) of the Act, and relevant legal principle, demonstrates the Tribunal's understanding of the legal framework that he had to apply. The statement by the Tribunal (at [31]) that the Tribunal "is not able to appoint the Public Guardian as a person's guardian if there is a private person who can be appointed" is, in our view, no more than an attempt at a plain English reformulation of s 15(3) of the Act and does not constitute a legal error as suggested by the Appellant.
8. In respect of the Appellant's contention that the Tribunal member failed to consider the Subject Person's best interests under s 4(a) of the Act when it reappointed the Cousin as guardian, an examination of the reasons for the decision under appeal indicate that issues concerning the Subject Person's interests were addressed in a number of respects.
9. The Tribunal referred (at [33]) to the views expressed by the health professionals who had assessed and treated the Subject Person that the appointment of the Public Guardian would be preferable. He noted that the joint report of Dr Wills and Mr Oehlers preferencing the appointment of the Public Guardian "given the accusations made by [the Appellant] against the health service and [the Cousin]", as well as the oral evidence given by Mr Oehlers that the appointment of the Public Guardian would "take the heat out of the situation".
10. Notably, the Reasons referred to Mr Oehlers' view that the Cousin was "not inappropriate" for appointment. This is presumably a reference to the evidence given by Mr O (Transcript p.14) that: "Mr Oehlers: The recommendation [made in Mr Oehlers' written report for the appointment of the Public Guardian] wasn't made with the view or thinking that [the Cousin] was an inappropriate option, in some sort of way that he has not fulfilled the role of guardian. But rather, given the current conflict within the family that a public guardian would be more appropriate to weigh the opinions of [the Cousin], [the Appellant] and the health team. It wasn't meant to imply that [the Cousin] was not able to fulfill that role, but rather, at this time, the more appropriate option would be the - the public guardian would be the more appropriate option."
11. The Tribunal noted the support of the Appellant, through Mr Harper, for the appointment of the Public Guardian noting Mr Harper's comment (at [34]) "that there was some evidence of family conflict".
12. The Tribunal also noted earlier in the Reasons the views expressed by the Subject Person (at [19]). Notwithstanding the Subject Person's limited participation in the hearing and his communication difficulties, the Tribunal understood the Subject Person's views were that "he did not need a guardian" and "did not want his cousin … to be reappointed as his guardian". After expressing these views, the Subject Person "left the room and did not return". The Tribunal "was not satisfied that his views were well informed or founded on strong reasoning" ([19]).
13. In considering the extent to which intrafamilial conflict rendered the Cousin unsuitable for appointment as the guardian, the Tribunal considered references to "family relationships" and the "family dynamic" and the possibility that an alternative appointment might "take the heat" of the situation [33]. The transcript indicates that he also considered the extent to which the conflict between the Appellant and the Cousin affected the Subject Person (Transcript p. 16 and p. 17). At [37] the Tribunal concludes that, having regard to the evidence, the relationship between the Cousin and the Subject Person had been "generally compatible until very recently".
14. The Tribunal also took into account the Cousin's views as to how he perceived his own performance as guardian. This included the view "that he has closely worked with the hospital treating team and the NDIS team and is best placed to continue that assistance". In relation to the issue of family conflict, the Cousin "observed that [the Subject Person's] stated concerns had only arisen since his brother [the Appellant's] recent involvement" and that the "[Subject person's] father, [named], has always supported him as guardian".
15. The Tribunal also had regard to the views of the NDIS Support Coordinator who "strongly supported [the Cousin]" ([36]). The Tribunal referred to her evidence that "[the Cousin] is easy to contact… is prompt in responding the recommendations put to him as the guardian…is good at consulting with all stakeholders…[and] always puts [the Subject Person's] needs first]". She "agreed that there had been no observable family conflict until recently".
16. The Appellant is critical of what he described as a lack of notice given to him of the NDIS Support Coordinator's evidence about this issue and that criticism forms the basis of a separate appeal ground.
17. Having considered matters including the nature of decisions to be made about the Subject person's accommodation and the manner in which the Cousin had addressed those matters, as well as the evidence about intrafamilial conflict, the Tribunal makes findings (at [37]) as to why he was satisfied, having taken into account the evidence, that the Cousin was suitable to be reappointed. The Tribunal engaged with the elements of s 17(1) and concludes that the Cousin is able to meet each of those requirements (at [37]).
18. Although the Appellant may disagree with the weight given to different factors in arriving at his decision, when the reasons for the decision under appeal are read fairly and as a whole, it cannot be said that the Tribunal did not take into account the Subject Person's welfare and interests when considering the Cousin's suitability against the criteria in s 17(1) of the Act.
19. This ground is rejected.

Whether Tribunal failed to consider whether the Cousin demonstrated insight and explain plans for how to act as the Subject Person's guardian objectively and without conflict of interest as required by P v D1 & Ors [2011] NSWSC 257 (Ground 2)

1. Relying on the decision in P v D1 & Ors [2011] NSWSC 257 (P v D1), the Appellant contends that the Tribunal erred in appointing the Subject Person as guardian because he failed to consider the Cousin's lack of insight and future plans for the Subject Person and how he intended to act as the guardian objectively and without conflict of interest.
2. The Appellant contended that the Tribunal "made no effort to investigate [the Cousin's] future plans" in relation to finding accommodation for the Subject Person.
3. The Appellant also contends that the Cousin's position during the period of the last order as CEO and now Director of a large disability accommodation provider had placed him in a situation of conflict with the Subject Person when the Cousin accepted an offer of accommodation from the same organisation. This also demonstrated a lack of insight on the part of the Cousin due to the content of the negative press coverage of the disability accommodation provider, evidence of which was provided to the Tribunal by the Appellant. The Tribunal should have considered the Cousin's ability to avoid future conflicts of interest given that the Cousin was still a Director of the disability accommodation provider, in case there was ever another offer by that organisation.

Consideration

1. The principles outlined in P v D1 set out factors that may be relevant to consideration of whether a proposed guardian meets the requirements set out in s 17(1) of the Act. They do not, however, create a statutory requirement additional to those set out in s 17(1) of the Act.
2. The Appellant is critical, in particular, of what is asserted to be the Cousin's lack of plans concerning the Subject Person's long term accommodation. This aspect of the Tribunal's reasoning is addressed earlier in these appeal reasons and will not be repeated here.
3. The Appellant also asserted that the Cousin's then position as CEO and now Director of a disability accommodation provider had placed him in a situation of conflict with the Subject person when the Cousin accepted an offer of accommodation from that organisation.
4. Section 17(1)(b) of the Act requires that the Tribunal is satisfied that "there is no undue conflict between the interests (particularly, the financial interests) of the proposed guardian and those of the person under guardianship".
5. A "conflict of interest" is "undue" within the meaning of s 17(1)(b) of the Act if it is reasonably likely, to an unacceptable degree, to impede the proposed guardian's performance of the duties of a guardian in the particular case (IR v AR [2015] NSWSC 1187, [35]).
6. The evidence before the Tribunal at the hearing on 23 January 2023 was that the accommodation offer made by the disability accommodation provider had been withdrawn (at [21(2)] and [23]). There was nothing in the evidence to suggest that this organisation was being considered as a future accommodation or service provider to the Subject Person. Indeed, the evidence was that: "[21(3)] [The NDIS Support Coordinator] has lodged an NDIS Review, which is pending. [The NDIS Support Coordinator] is not now actively seeking new accommodation. Any accommodation would preferably be in the Penrith area. She accepted that it could realistically take more than 12 months to find accommodation appropriate to [the Subject Person's] needs."
7. The Tribunal found (at [37]) that in relation to the Cousin's request to be appointed guardian "[t]here is no conflict of interest (whether actual or perceived) now that any offer of an accommodation placement to [the disability accommodation provider] has been withdrawn".
8. The Appellant's contention that the Tribunal failed to consider whether the Cousin could perform the role of guardian without conflict of interest is not supported by the Tribunal's finding at [37] when the Tribunal directly addressed this issue. In arriving at this finding, the Tribunal's reasons make clear that he would not have necessarily regarded the Cousin's role with the disability accommodation provider as creating an undue conflict of interest when that organisation was the prospective accommodation provider for the Subject Person. However, he found that no such conflict existed in circumstances where the organisation had withdrawn the accommodation placement.
9. The Appellant's contention that the Tribunal should have found that the Cousin does not meet the requirement of s 17(1)(b) of the Act as it is possible that the disability accommodation provider may at some later time make another accommodation offer was not put to the Tribunal member at the review hearing and, in any event, is unlikely to form a basis for a finding of an undue conflict of interest.
10. This ground is rejected.

Breach of procedural fairness grounds (Grounds 3, 4, 5)

1. The Tribunal is bound by the principles of procedural fairness or natural justice. It may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice: NCAT Act, s 38(2). An important aspect of natural justice is the right to be heard. The Tribunal must ensure that a party has a reasonable opportunity to be heard and otherwise have his or her submissions considered: NCAT Act, s 38(5)(c). The Tribunal must also ensure that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue on any proceedings: NCAT Act, s 38(6).
2. The obligation of the Tribunal to accord procedural fairness in relation to Guardianship Division proceedings is summarized in BTD v NSW Trustee and Guardian [2015] NSWCATAP 87 (at [14]-[15]): "[14] The Guardianship Division is required to comply with the rules of procedural fairness, which are also known as the rules of natural justice: NCAT Act, s 38(2). Those rules require that a person be afforded a fair and unbiased hearing before decisions are taken which affect them: Aronson, Dyer and Groves, Judicial Review of Administrative Action, (5th ed 2013 LawBook Co) at 397. In particular the hearing rule, which is an element of procedural fairness, requires that a decision-maker hear a person before making a decision affecting their interests. McHugh J spoke generally of this rule in Re Refugee Tribunal; ex parte Aala [2000] HCA 57; (2000) 75 ALJR 52 at 73: One of the fundamental rules of the fair hearing doctrine is that a decision-maker should not make an adverse finding relevant to a person's rights, interests or legitimate expectations unless the decision-maker has warned that person of the risk of that finding being made or unless the risk necessarily inheres in the issues to be decided. It is a corollary of the warning rule that a person who might be affected by the finding should also be given the opportunity to adduce evidence or make submissions rebutting the potential adverse finding (Mahon v Air New Zealand Ltd [1983] UKPC 29; [1984] AC 808 at 820-821.) [15] The content of the hearing rule must be "appropriate and adapted to the circumstances of the particular case": Kioa v West [1985] HCA 81; (1985) 159 CLR 550 per Mason J at 585. The Guardianship Division's jurisdiction is a protective one. One of its primary aims is to protect vulnerable people from neglect, abuse and exploitation: The Act 1987 (NSW), s 4(g). But that is not its only obligation. The Guardianship Division of the Tribunal is also obliged to ensure that people who are parties to applications receive a fair hearing from an impartial decision-maker. The Tribunal is obliged to disclose to parties who have an interest in the proceedings, the substance of any adverse or prejudicial information and give them a reasonable opportunity to respond: KV v Protective & Ors; KW & Ors v KV & Ors (No.2) [2004] NSWADTAP 48."
3. In Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1, Gleeson CJ emphasised that "fairness is not an abstract concept" and that the "concern of the law is to avoid practical injustice" (at [37]).

Failure to offer adjournment due to "substantial and entirely new" evidence

1. The Appellant contends that the Tribunal member failed to afford him procedural fairness by not offering an adjournment to address the evidence provided by the NDIS Support Coordinator. The NDIS Support Coordinator had not made a written submission leading up to the hearing and at the hearing gave evidence in support of the Cousin that was "substantial and entirely new". The Appellant contended that he was disadvantaged in the proceedings as he was unable to review "all the evidence" prior to the proceedings. The Tribunal was obliged to provide "basic assistance to unrepresented parties" and was obliged to offer an adjournment.

Consideration

1. The evidence contended by the Appellant to be "substantial and entirely new" was summarised in [36] of the Reasons: "[36] [The NDIS Support Coordinator] strongly supported [the Cousin]. She told me he is easy to contact and is prompt in responding to recommendations put to him as the guardian. She also believes he is good at consulting all stakeholders. She considers [the Cousin] always puts [the Subject Person's] needs first. She agreed that there had been no observable family conflict until recently."
2. The following points may be made about the position put by the appellant.
3. The appellant did not seek to be appointed as the Subject Person's guardian. There was no adverse or prejudicial information provided by the NDIS Support Coordinator about the Appellant, nor adverse findings made against him by the Tribunal, that might necessitate an opportunity being provided to the Appellant to rebut the evidence.
4. In any event, the obligation on the Tribunal to afford procedural fairness to a party does not involve an obligation that a witness is to provide a party with a written statement by that person prior to a hearing, especially where a written statement is not in existence. The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice: NCAT Act, s 38(2). It is not uncommon when exercising the protective jurisdiction of the Guardianship Division for parties and witnesses to provide oral evidence and submissions without the Tribunal or other parties receiving prior notice of the content of that evidence or submission.
5. The NDIS Support Coordinator's oral evidence in support of the Cousin's reappointment as guardian (Transcript, p 14) was as follows: "[The Cousin] has been extremely present, and supportive and also progressive, um you know with [the Subject Person's] transition out into the community and he's very easy to get a hold of. He comes back in a timely manner with decisions and like [the Cousin] said as well, [the Cousin] very much consults with the team, it's not just [the Cousin] saying, no, making decisions on his own assumptions, yeah so, I think, I agree that [the Cousin] has been excellent to deal with throughout this and there's no time in any circumstance that [the Subject Person's] needs haven't been put first. I believe it's evident in the slow transition that we've been doing and then, you know, the stopping of that transition and going back to the NDIS to get also more funding because [the Subject Person] was in distress. So, we didn't progress that once he started."
6. The Tribunal addressed the different views he needed to weigh up as to who should be appointed as guardian (Transcript, p 14). He noted the view expressed on the Appellant's behalf by Mr Harper that "it might take some heat out of the situation, that seems to be the view supported by the hospital, whereas [the NDIS Support Coordinator] says in practice, [the Cousin] has been an exemplary guardian - can't really impugn his conduct" (Transcript, p 14).
7. Mr Harper, on behalf of the Appellant, along with other witnesses then made further submissions about this issue (Transcript, pp 15 and 16).
8. The Tribunal member then invited further submissions (Transcript, p 16): "Is there anything anyone else would like to say? What I will say is I'm not going to make a decision now. I want to think about it- I think everybody accepts there needs to be a guardian and everybody accepts there needs to be four functions. There isn't a consensus on who should be the guardian. I need to make a decision about that. Is there anything anyone else would like to say? So, what I propose to do is reserve, foreshadowing those decisions that I think I will make, but I haven't formed a final view on the guardian."
9. Mr Harper, on behalf of the Appellant, took up this invitation and made a further submission about the length of a potential guardianship order (Transcript, p 16).
10. Neither the Appellant nor Mr Harper made any further comment or submission about the evidence provided by the NDIS Support Coordinator despite being given the opportunity to do so and Mr Harper making submissions about other topics. The Appellant was given a reasonable opportunity to respond to the evidence of the NDIS Support Coordinator and otherwise to have his submissions considered. There was no breach of procedural fairness in this regard or of the obligation set out in s 38(5)(c) of the NCAT Act.
11. The Appellant also asserts a breach of procedural fairness by not being offered an adjournment.
12. Regardless of whether a party applies for an adjournment, the Tribunal is bound to offer a self-represented party an adjournment, if is appropriate to do so: Italiano v Carbone and Ors [2005] NSWCA 177 at [105]. The NCAT Appeal Panel in CKG v Public Guardian [2014] NSWCATAP 32 at [23] noted: "If a party complains of late receipt of material of significance they should be invited to explain why they regard themselves as prejudiced in responding to it in the course of the hearing now on foot. They should be asked why they need further time. They should have explained to them their right to apply for an adjournment or some other direction that might alleviate the prejudice they perceive. It does not follow that the Tribunal must accede to such an application, but the person affected should be given the opportunity in circumstances of the present kind to present their case for an adjournment."
13. From a review of the Transcript, neither the Appellant nor Mr Harper complained during the hearing about the NDIS Support Coordinator providing evidence or the substance of her evidence. There was nothing put to the Tribunal that should have caused it to consider whether an adjournment should be offered the Appellant.
14. In any event, the Appellant was given a reasonable opportunity to respond to the evidence of the NDIS Support Coordinator and in those circumstances, there was also no reason for the Tribunal to offer the Appellant an adjournment.
15. This ground is rejected.

Withholding of 2020 medical report

1. The Appellant contends that the Tribunal member failed to afford him procedural fairness by the withholding from him a report written by Dr Kwan dated 21 October 2020 (2020 report). Dr Kwan referred to her 2020 report in her more recent report dated 29 December 2022 that was in evidence before the Tribunal member. The Appellant was unaware of the 2020 report until he read a reference to it in the 29 December 2022 report and asserts that this was unfair to him because he was not afforded the opportunity to review or respond to all "relevant and significant" material and was unable to raise any concerns during the proceedings.

Consideration

1. The entirety of the reference to Dr Kwan's 2020 report is contained in her report dated 29 December 2022 as follows: "I refer to my previous guardianship report dated 21/10/20 which provides extensive background and details about [the Subject Person's] disabilities that are causing decision-making incapacity. That report also contained sensitive information from a family meeting in 2019 with [the Subject Person's] previous primary carer (his stepmother [X]) where she made allegations and expressed concerns for her safety in relation to [the Subject Person's] brothers."
2. Dr Kwan's 2020 report was not in evidence before the Tribunal on 23 January 2023. The Tribunal member's reasons make no reference to the 2020 report and nor was there a reference to it in the Transcript. It was not before us in the appeal proceedings.
3. In order to attract the hearing rule, a party must be aware of all the "credible, relevant and significant" material that will be considered: Kioa v West [1985] HCA 81 at [38]; (1985) 159 CLR 550 at 628-629.
4. Given that the 2020 report was not before the Tribunal member, it cannot be said that it was "adverse" to the Appellant in the review proceedings conducted on 23 January 2023 or that it was "relevant" or "significant" to the decision to be made by the Tribunal member on 23 January 2023.
5. The asserted denial of procedural fairness in relation to the withholding of the 2020 report is not made out.
6. This ground of appeal is rejected.

Failure to treat Appellant as a statutory party in first instance proceedings

1. The appellant contended that the Tribunal fell into legal error as he was "deliberately excluded" from earlier Tribunal proceedings prior to being joined as a party on 18 January 2023.
2. The appellant claimed that he should have been an automatic party to all proceedings before the Tribunal, pursuant to s 3F(2) of the Act, because he was the Subject person's "carer". The appellant claimed that he met the definition of a carer in s 3D of the Act because he provided "psychosocial support" to the Subject Person up until he was hospitalised in 2010, in the form of regular email communication.
3. The appellant relied on the decision in The Husband v the Public Guardian [2016] NSWSC 1720 (The Husband v Public Guardian) to support his claim that all decisions of the Tribunal from 11 November 2021, should be treated as invalid and "having no substance at all", on the basis that his exclusion from all prior hearings before the Tribunal meant that he was denied procedural fairness.

Consideration

1. Section 3F of the Act specifies who are "parties" to proceedings brought under the Act. Relevantly, ss 3F(1), 3F(2)(d) and 3F(3)(d) of the Act provide as follows: 3F Persons who are "parties" to proceedings under this Act (1) A person is a party to proceedings before the Tribunal under this Act as provided by this section. (2) Each of the following persons is a party to any proceedings before the Tribunal in respect of an application for a guardianship order under this Act - (d) the person, if any, who has care of the person to whom the application relates,… (3) Each of the following persons is a party to proceedings consisting of a review by the Tribunal of a guardianship order made under this Act - (d) the person who has care of the person the subject of the order,
2. The circumstances in which a person is to be regarded as having the care of another person is described in s 3D of the Act: 3D Circumstances in which a person "has the care of another person" (1) For the purposes of this Act, the circumstances in which a person is to be regarded as having the care of another person include (but are not limited to) the case where the person, otherwise than for remuneration (whether from the other person or any other source), on a regular basis - (a) provides domestic services and support to the other person, or (b) arranges for the other person to be provided with such services and support. (2) A person who resides in an institution (such as a hospital, nursing home, group home, boarding-house or hostel) at which he or she is cared for by some other person is not, merely because of that fact, to be regarded as being in the care of that other person, and remains in the care of the person in whose care he or she was immediately before residing in the institution. (3) In this section, remuneration does not include a carer's pension.
3. In The Husband v Public Guardian, the appellant husband was not notified, and did not know about nor attend, a hearing of guardianship and financial applications in relation to his wife (first instance hearings). Orders were made that appointed the Public Guardian and the NSW Trustee and Guardian respectively as substitute decision makers. An interlocutory hearing was conducted some months later to specifically consider the husband's contention that he was a party to the first instance proceedings on the grounds that he was the wife's spouse and/or he had previously provided care to the wife. The Tribunal concluded at the interlocutory hearing that that the husband fell within the definition of "carer" and was therefore a statutory party (but was not satisfied of a close and continuing relationship and did not fall within the definition in s 3F of the Act of spouse). At subsequent review hearing, the Tribunal treated the husband as a statutory party and made orders confirming the original appointments. The husband appealed the review decisions made by the Tribunal.
4. The Supreme Court allowed the appeal. The Court noted that the "thorough statements filed on behalf of the husband giving a detailed and admissible narrative account of the husband's long relationship with the wife have been an important integer in the Court's decision-making in this case" (at [13]). It agreed with the Tribunal that the husband was a statutory party as the "the person who had the care of" the wife at the time of the first instance proceedings and therefore a statutory party, but in addition had party status as a spouse and attorney pursuant to an enduring power of attorney. The Court held that the "undoubted denial of procedural fairness to the husband leading to the jurisdictional error on the Tribunal's making of the [first instance decisions] means that on appeal from that decision it would be treated as no decision (at [115]).
5. Here, the Appellant contends that the Act mandates that he was always a statutory party to the Tribunal's proceedings because he was a person "who has the care of the person to whom the application relates" under ss 3F(2)(d) and 3F(3)(d) of the Act.
6. The Appellant asserts that he satisfied the descriptors set out in ss 3F(2)(d) and 3(d) of the Act because he met the requirement set out in ss 3D(1)(a) and 3D(2) of that Act that immediately prior to the Subject Person's admission to hospital in up to 2010, he provided, on a regular basis and otherwise than for remuneration, "domestic services and support" to the Subject Person (the Appellant did not assert that he arranged for the Subject Person to be provided with domestic services and support and as such, consideration of s 3D(1)(b) of the Act was not necessary).
7. In the written Notice of Appeal, the Appellant described the "domestic services and support" provided by him to the Subject Person as "psychosocial support". In oral submissions before us, he described he and his brother as emailing each other regularly and the appellant providing his brother with support through his role with the Heritage Clubhouse.
8. In order for the Appellant's argument to succeed, we would need to be persuaded:

• that the Appellant provided the kind of support to his brother that he says he did, on a regular basis and otherwise than for remuneration
• that this support was provided to the Subject Person immediately before residing in hospital; and
• that the support provided by the Appellant constitutes "domestic services and support"

1. In The Husband v Public Guardian, the husband's status as a statutory party to the first instance proceedings was not the main area of contention. By the time of the appeal, the Tribunal had already accepted the husband's status as a statutory party as carer for his wife, and on appeal the Supreme Court also found that he satisfied the definition of "spouse" and attorney. In contrast to this case, we are not able to be persuaded, based on the Appellant's assertions made in the appeal proceedings, that he meets the requirements set out in s 3D(1)(a) and 3D(2) of the Act. The Appellant did not provide evidence or material beyond his assertions of his status as his brother's carer.
2. We note, for the sake of completeness, that the Appellant did not make submissions about this issue at the review hearing. He had, of course, been joined as a party, upon his application, under s 44 of the NCAT Act on 18 January 2023.
3. This ground is rejected.

Whether the Tribunal failed to take into account the mandatory considerations set out in s 4(g) and 14(2)(a) and (b) of the Act (Grounds 6 and 7)

Failure to consider mandatory consideration in s 4(g) of the Act - protection from neglect and abuse

1. The Appellant contended that the Tribunal failed to apply the requirement to protect the Subject Person from neglect and abuse: the Act, s 4(g).
2. In support of this ground, the Appellant submitted that the Subject Person had been involved in a serious incident with another patient and that he had been assaulted. The Appellant contended that the Tribunal failed to consider whether the Cousin's reappointment would result in the Subject Person being exposed to an increased risk of violence. The Appellant claimed that there is no evidence that the Cousin was aware of the incident until the Appellant had brought it to his attention in November 2022 in his joinder application, which calls into question the Cousin's inability to ensure that the Subject Person would not be exposed to future violence and abuse.

Consideration

1. The information provided to the Tribunal below relating to an alleged assault involving the Subject Person was contained in the report written by Dr Kwan dated 29 December 2022. Dr Kwan stated: "[The Subject Person] has consistently expressed unproven persecutory beliefs about select patients and staff, blaming others for pushing him leading him to fall, his ill health, bowel motions and the loss of belongings. Due to his impulsiveness he has acted on these persecutory beliefs, including an unprovoked attack on a co-patient [GC] which was witnessed by staff in early 2022. [GC] has not had a history of harming [the Subject person] but [the Subject Person] continues to express the erroneous belief that [GC] has assaulted him. [GC] had to be transferred to another unit for his safety and there have been no other assaults by [the Subject Person] on other co-patients."
2. The Appellant made reference in his written application to be joined as a party to the proceedings that the Subject Person had told him that he had been assaulted in the hospital and that the Appellant was not aware of any attempt by the Cousin to advocate for the Subject Person's welfare following this incident. That application was determined by a different member on 18 January 2023. This issue, however, was not raised or discussed in the review hearing.
3. The Tribunal is under a duty to observe the principles set out in s 4 of the Act when exercising functions under the Act (P v NSW Trustee and Guardian [2015] NSWSC 579 at [53]-[58]; ZBC v ZBD [2016] NSWCATAP 264 at [101], [105]).
4. However, the applicability of each principle will depend on a person's particular circumstances as there may be no evidence of one or more of the principles. For example, in a particular matter, the person may not have provided any views: the Act, s 4(c). In another, the principle of the importance of preserving family relationships (s 4(e) of the Act) will not have relevance in relation to a person without family. This was recognised by the Appeal Panel of the Administrative Decisions Tribunal in WL v NSW Trustee and Guardian (External) [2011] NSWADTAP 22 which held (at [75]) that "a decision maker is bound to observe any relevant principle in s 4. The decision maker may demonstrate that he or she has observed those principles either by referring to them expressly or by writing reasons for decision which demonstrate that all relevant principles have been observed." (emphasis added)
5. The Tribunal member was not in error by failing to specifically address the principle in s 4(g) of the Act that a person "should be protected from neglect, abuse and exploitation" in circumstances where evidence had not been put before him that the Subject Person was at risk of, or had experienced, neglect, abuse or exploitation. Rather, the only evidence available to him touching on these issues was in the form of Dr Kwan's December 2022 report. This material, the content of which was not challenged in the hearing by the Appellant or by any other witness, was that the Subject Person had been the instigator of an assault on another patient.
6. This ground is rejected.

Failure to consider mandatory consideration in ss 14(2) Act - the views of the Subject Person and preservation of family relationships

1. The Appellant contended that the Tribunal failed to consider mandatory considerations set out in s 14(2) of the Act, namely, "the views (if any) of the person" (s 14(2)(a)(i)) and "the importance of preserving the person's existing family relationships" (s 14(2)(b)).
2. The Appellant contended that the Tribunal failed to consider the Appellant's request for the Cousin not to be reappointed as guardian, had misstated the Subject Person's views, and addressed them in a "cursory way". The appellant asserted that the Subject Person's preference is not even mentioned in the Tribunal's weighing of the evidence at [37] of the Reasons.
3. The Appellant contended that the Tribunal did not consider the preservation of family relationships, particularly the Appellant's ongoing relationship with the Subject Person.

Consideration

1. Section 14(2) of the Act prescribes the matters that must be taken into account by the Tribunal when considering whether or not to make a guardianship order.
2. The issue of whether another guardianship order should be made for the Subject Person was not in dispute at the review proceedings. This is evident from the written reasons ([16]-[26]).
3. That the Appellant did not disagree with the making of another order is also evident from the following exchanges: (Transcript at p.6): Member: Is there a need for a guardian? So, the need for a guardian really goes to what kind of decisions if a guardian is appointed will they have to make? I've seen a report from Dr Kwan and from Dr Wills and Mr Oehlers, they make some recommendations. I've also seen the private guardian statements from [the Cousin], which has slightly different functions. So, what I might do is just put it over to the floor to discuss whether there is a view as to a need of a guardian and if so what functions? (Transcript p.11) Member: Alright, [Appellant], do you have a view on the functions that a guardian would require, or a different view I should say? [Appellant]: Yes, very deep active listening skills. (Transcript p.12) Member: So, sorry - we were talking about the decision-making areas a guardian needs, so I think the consensus at the moment is, someone is going to have to make a decision about [the Subject Person's] accommodation, his medical and dental consents, healthcare and services. Those are the decision-making areas that are in existence at the moment. The question is, should they be renewed, or do they need to be varied? It seems to me on the evidence, I'm minded to renew them. But I just want to canvass the views in case there is something that I haven't appreciated. David Harper: My understanding from [the Appellant] - previously [the Appellant] prepped me, correct me correct me if I'm wrong is that we understand that there a bunch of decisions to be made and it's not at the present time clear how well supported decision making may or may not work, particularly with so much change that is going to be needed. And so, while in the future, possible in the near future, but more likely in the medium term, the question about whether a substitute decision maker is still needed in case conflict will arise, so [the Appellant] has been correctly saying. I think right now, as of today, it seems to be [the Appellant] from what I recall I was talking about that the guardian is still going to be necessary for the time being. Overlapping voices. [The Appellant]: Obviously. That is self-evident.
4. Given the Appellant's approach in the review hearing to the making of an order, we understand from this appeal ground that his contention that the Tribunal member failed to take into account the mandatory considerations in ss 14(1)(a)(i) and 14(2)(b) of the Act is really directed towards the decision made by the Tribunal member to make a guardianship order that appoints the Cousin as the guardian. The matters set out in s 14(2) of the Act "will also be relevant to the decision as to who is the appropriate person to be appointed as guardian": Re B (No.1) [2011] NSWSC 1075, [66].
5. In relation to the contention that the Tribunal member failed to consider the Subject Person's views, when the reasons are read fairly and as a whole and not approached with an "eye keenly attuned to the perception of error" (Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at [272]) it cannot be said that the Tribunal failed to consider those views.
6. The Tribunal's Reasons referred to the participation of the Subject Person and his views (at [19]): "[The Subject Person] had limited participation in the hearing. At one stage he locked himself in the bathroom. He did participate for a brief period by audio-visual link. He mumbled and I found his conversation difficult to follow. He told me that he did not need a guardian. He would like to go to T… House when he leaves hospital and did not want his cousin …to be reappointed as his guardian. He then left the room and did not return. Although [the Subject Person] did communicate his preferences, I was not satisfied that his views were well informed or founded on strong reasoning."
7. The Transcript records (at p 5) that when the Subject Person was asked by the Tribunal Member if there was someone who he thought would be good at doing the job of guardian, noting that the Cousin was his current guardian, the Subject Person responded "No thank you…Inaudible".
8. That the Tribunal Member specifically turned his mind to the Subject Person's views about the Cousin is clear from the following comments (Transcript p 15): "Member: [The Subject Person's] view is a relevant consideration, and I did ask [the Subject person] at the start. I know it may have been a bit sketchy but he didn't seem to be very supportive of [the Cousin]. I mean sometimes that is only because a person is not well informed or they have firm views that may not be based on fact. It's really hard to drill down to the reasoning but I think on a cursory level, I have to accept that [the Subject Person] said he didn't support [the Cousin]."
9. The weight to be given to evidence is a question of fact. As Mason J explained in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1996) 162 CLR 24; [1986] HCA 40 at [40]: "It is generally for the decision-maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power."
10. It is evident from the transcript and the written reasons that the Tribunal member understood the Subject Person's views about the potential appointment of the Cousin as his guardian, but gave limited weight to those views. Whilst the Appellant may disagree with the weight accorded by the Tribunal member to the Subject Person's views, the contention that the Tribunal member failed to consider them at all cannot be accepted.
11. The Appellant also contends that the Tribunal member failed to consider the "importance of preserving the Subject Person's existing family relationships". The focus of the Appellant's critique in his written and oral submissions in the appeal was on the Tribunal member's failure to consider the Subject Person's ongoing relationship with the Appellant. He submitted that it is "not clear from the member's reasons whether he accepted that I had a pre-existing relationship with [the Subject person] that was necessary to preserve, or, alternatively, whether he viewed the importance of [the Cousin's] reappointment as a priority. In making this decision, however, the Member certainly has not prioritised section 14(2)(b) of the Act, and thus has not acted in accordance with section 4 of the Act."
12. The fact of the relationship between the Subject Person and his brother, the Appellant, did not appear to be a contentious issue in the review proceedings. Evidence was given by the Appellant as to his long-standing relationship with his brother.
13. The Appellant's submissions on the appeal do not contend that he put to the Tribunal member, for example, that the appointment of the Cousin as the guardian would impact on the relationship between the Subject person and the Appellant. A review of the transcript confirms this.
14. The main focus of the evidence provided by witnesses and parties in the hearing concerned the relationship between the Subject Person and the Cousin in respect of the Cousin's suitability for appointment pursuant to s 17(1) of the Act and, in more general terms, the impact on the Subject Person of the difficulties in the relationship between the Appellant and the Cousin. The Tribunal's reasons acknowledged the challenges in these family relationships but ultimately decided that the Cousin met the requirements in s 17(1) of the Act.
15. A decision maker is not to be criticised for failing to consider everything which the affected party has chosen to include in an "exhaustive list of all the matters which the decision maker might conceivably regard as relevant" (Sean Investments Pty Ltd v MacKellar [1981] FCA 191; (1981) 38 ALR 363, 375 (Deane J)). In our view, the Tribunal member had regard to the relationships between family members of the Subject Person and the impact of those relationships upon the Subject Person and by doing so can be seen to have taken into account the mandatory considerations in ss 14(2)(c) and 14(4)(e) of the Act. He did not fall into error by failing to make findings about the nature of the relationship between the Subject person and the Appellant, and its need for preservation, when that issue did not appear to be in contention in the proceedings and the Appellant had not raised for consideration the impact of the appointment of the Cousin on the relationship between the Appellant and the Subject Person.
16. This ground is rejected.

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: 21 December 2023