YDW v YDZ

NCAT Appeal Panel|2023-12-07

REASONS FOR DECISION

By Notice of Appeal filed on 21 July 2023 the Appellant (YDW) appealed against procedural orders made by the Guardianship Division of the Tribunal on 23 June 2023, 6 July 2023 and 17 July 2023. The Appellant challenged the scope of summonses which the Registrar granted him leave to issue. The Appellant also challenged "confidentiality orders made against the Applicant/Appellant in the Applicant/Appellant's Absence (the Applicant/Appellants has asked the NSW Civil and Administrative Tribunal (NCAT) to supply these orders made in the Absence of the Applicant/Appellants but the NSW Civil and Administrative Tribunal (NCAT) has refused til date to supply these confederately (sic) orders made against the Applicant/Appellant in the Applicant/Appellant's absence".
The Respondent to the appeal is nominally the Appellant's father, YDZ, as there are guardianship and financial management orders in place with respect to him. As the Appellant's Notice of Appeal recognised, the NSW Trustee and Guardian (NSWTAG), JDZ's guardian and financial manager, was, in practical terms, the Respondent to the appeal. NSWTAG filed no submissions in the proceedings. An officer of NSWTAG appeared at the hearing but confirmed that NSWTAG did not seek to actively participate in the appeal, other than to record its opposition to the appeal. NSWTAG did not file a reply to the appeal seeking its dismissal. The NSWTAG officer was excused and ceased to participate in or listen to the hearing of the appeal.

A preliminary matter

The Panel asked the Appellant to identify the date on which the confidentiality orders which his Notice of Appeal challenged was made by the Tribunal. The Appellant was unable to identify the date of such order. That is unsurprising given that, by the operation of s 65 of the Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act), there is, pursuant to s 65(2) an express prohibition on the publication or broadcasting of the name of any person who appears as a witness before the Tribunal in any proceedings, or to whom any proceedings in the Tribunal relate, or who is mentioned or otherwise involved in any proceedings in the Tribunal except with the consent of the Tribunal.
There thus was no need for an order for confidentiality with respect to the Appellant or his father, who have been referred to and will continue to be referred to throughout the proceedings as YDW and YDZ respectively. Nothing before the Appeal Panel indicates, and the Appellant did not suggest, that the Tribunal has ever given consent to a departure from the provisions of s 65 of the CAT Act.
It is not insignificant in this context that, Tab 1 to the Appellant's Appeal Bundle, headed "Confidentiality Statement" reiterated the substance of the provisions of s 65(2) of the CAT Act. The Appellant appeared to accept that, in the circumstances to which we have referred, the Tribunal would not have made, or needed to make an order pursuant to s 65 of the CAT Act. The Appellant appeared to accept that, in those circumstances, his appeal with respect to the non-disclosure of his name or those of his parents could not succeed.

Material relied upon

The Appellant's Notice of Appeal set out his grounds of appeal and indicated "no" with respect to leave to appeal. The Appeal Panel suggested to the Appellant that the orders which he was challenging were, by their nature interlocutory and thus, pursuant to s 80(2) of the CAT Act required leave of the Appeal Panel. The Appellant accepted the Appeal Panel's suggestion that he required leave to appeal.
The definition of "interlocutory decision" in s 4 of the CAT Act provides (4(c)) that "the issue of a summons" is an interlocutory decision. The Appeal Panel amended the Appellant's Notice of Appeal to seek leave to appeal without requiring the filing of an Amended Notice of Appeal.
The Appellant filed two Affidavits in November 2023 which he confirmed that he no longer relied on in the appeal. The Appellant did not file an outline of submissions as such. On the morning of the hearing of the appeal the Appellant provided the Tribunal with a bundle of documents comprising 14 annexures. The Tribunal received those documents in evidence. The Appellant made oral submissions which occupied most of the afternoon of the hearing date, at the conclusion of which the Appeal Panel reserved its decision.

The orders challenged by the Appellant

The orders of the Tribunal of 23 June 2023 relevantly provided (order 3) that the application for summonses addressed to Lilian Wells Nursing Home, NSWTAG and Hall & Prior t/as Bexley Care Centre, filed by the Appellant on 6 June 2023 be refused. The Appellant was granted leave (order 4) to file an Amended Summons to issue a Summons to NSWTAG with respect to "copy of any record of all creditors or potential creditors in regards to YDZ and (the Appellant's since deceased mother) as at 6 June 2023". The balance of the application filed by the Appellant on 6 June 2023 for the Summons directed to the NSWTAG was refused (order 5).
A number of further procedural orders were made to facilitate the hearing of substantive proceedings with respect to the guardianship and financial management orders which, since 2019, had been in place with respect to the Appellant's parents.
The orders of 6 July 2023 which the Appellant has challenged dismissed the Appellant's application to set aside the orders of 23 June 2020.
The orders of 17 July 2023 relevantly provided (order 2) that the Appellant's application to have the guardianship review proceedings and financial management review proceedings with respect to each of his parents be heard separately from each other was refused. The orders reiterated that the hearing of the substantive proceedings be listed for 19 September 2023.
The Appellant informed the Appeal Panel that, to the extent that any orders challenged by him related to his late mother, to the extent that the Tribunal now has any jurisdiction, it ought not be exercised. The Appeal Panel agreed with that suggestion. The Appellant's mother passed away on 25 October 2023. During the hearing the Appellant became tearful on a number of occasions when referring to his late mother.

Reasons for the Decisions of the Tribunal

The Tribunal published extensive reasons for its decision of 23 June 2023. Those reasons provide background to the present proceedings. The interlocutory decisions of the Tribunal of 23 June 2023 related to the Appellant's father and mother. The Tribunal recorded [5] that YDZ was an "elderly man" who had been married to his wife for over 65 years. The Appellant is one of two adult children of YDZ and his wife [6]. On 1 August 2019 the Tribunal made a guardianship order for YDZ and appointed the Public Guardian as his guardian for twelve months. The Public Guardian was given decision making authority with respect to a variety of matters [7]. On 1 August 2019 a financial management order was made for YDZ committing management of his estate to NSWTAG [8]. Substantially similar guardianship and financial management orders were made with respect to YDZ's wife on that date [9].
A review conducted on 4 August 2020 renewed the guardianship order for YDZ for two years with substantially the same decision making functions as pursuant to the previous order [10]. On the same date the guardianship order was renewed for YDZ's wife in similar terms [11].
At a further review hearing on 16 October 2020, an application brought by the Appellant to review the financial management orders for both his parents was dismissed [12].
The Appellant appealed the decisions of 4 August 2020 and 16 October 2021 in relation to both his parents to the NSW Supreme Court. On 22 October 2021 the appeals were dismissed. The Supreme Court made a costs order against the Appellant on 14 December 2021 [13].
On 11 August 2022 the Tribunal made directions with respect to the end of term reviews of the guardianship orders of 4 August 2020 for YDZ and his wife. The reviews were set down for hearing, and directions made for the filing and service of material by the parties. A Separate Representative was appointed for YDZ and his wife. The Appellant and his brother were joined as parties to the proceedings [14]. The Tribunal was subsequently informed that the Appellant had filed a summons seeking leave to appeal the Supreme Court decisions. As a consequence, orders were made on 13 October 2022 vacating the listed date for the hearing of the reviews [15].
On 22 November 2022, having been advised that the appeal to the New South Wales Court of Appeal was listed for hearing on 6 March 2023, the Tribunal listed the proceedings for further directions at a date later in March 2023 [16]. On 17 March 2023 the appeal to the Court of Appeal was discontinued [17].
The Appellant subsequently lodged with the Tribunal two new applications with respect to his father, they being a request to review or revoke the financial management order filed 23 March 2023, and a request to review the guardianship order filed 4 April 2023 [18]. The Appellant filed applications in similar terms in relation to his mother [19].
On 4 April 2023 the Tribunal made orders and directions for the filing and serving of material in relation to various proceedings [21]. The Appellant appealed the orders and directions made on 4 April 2023 to the internal appeal panel of NCAT. On 12 May 2023, by consent, the timeframe for the hearing of the proceedings was varied. The Appellant's appeal was otherwise withdrawn and dismissed [23].
On 22 May 2023 the Appellant filed applications for summonses dated 17 May 2023 in respect of both his parents to four recipients which were named as: Lilian Wells Nursing Home (where YDZ lives); Hall & Prior (T/as Bexley Care Centre) where YDZ's wife lived, NSWTAG (Guardian Division); Public Guardian.
At a hearing on 25 May 2023 the Tribunal made orders approving the issue of summonses to each of the four entities referred to above. Although not every schedule item sought by the Appellant was approved by the Tribunal, "a large number were approved" [26]. The Tribunal set out the detail of the scope of each of the summonses which the Appellant was granted leave to issue. It is unnecessary for present purposes to refer to those details [28].
On 1 June 2023 the Registry issued written Notices to all parties and the Separate Representatives advising that the hearing of all of the proceedings concerning YDZ and his wife would occur on 25 July 2023 [29].
On 6 June 2023 the Appellant lodged "new" applications for summonses with respect to each of his parents. The summonses were directed to the same four entities referred to above "and in all but a few limited respects were in the same terms as the applications for summonses considered by the Tribunal at the hearing on 25 May 2023" [30].
On 7 June 2023 a Registrar refused each of the 6 June 2023 applications for summonses on the basis that they were "substantially the same as the summonses about which (the Tribunal) made directions on 25 May 2023". Orders in the same terms were made in the proceedings with respect to YDZ and the proceedings with respect to his wife [31].
The Appellant sought a review of that decision. That review application was determined by the Tribunal on 23 June 2023. Under the heading "Application by (YDW) to set aside Registrar's decision to refuse summonses, the Tribunal recorded [34]-[35] that the application involved interlocutory orders. In view of the Appellant's acceptance of that decision, it is unnecessary to say more about that topic.
The Tribunal dismissed the application pursuant to s 55(1)(b) of the NCAT Act on the basis that it was "misconceived" [36]. The Tribunal recorded its reasons for dispensing with a hearing of the application [38]-[44].
The Appellant sought an "oral" hearing to determine his application to set aside the Tribunal's orders with respect to the request for the issue of further summonses of 6 June 2023. The Tribunal declined to give the Appellant a "hearing" of his applications. Lest there be any misconception, dispensing with a hearing means, in practical terms, dispensing with an oral hearing. Dispensing with an oral hearing did not absolve the Tribunal from the obligation to give proper, genuine and realistic consideration to the merits of the case before it (Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33) or diminish that obligation in any way. It simply meant that the Tribunal determined the proceedings "on the papers".
The Tribunal referred to clause 6 of Schedule 6 of the CAT Act, which is the Divisional Schedule applicable to the Guardianship Division which provides: "6 Hearing required except for making of ancillary or interlocutory decisions (1) Despite section 50 of this Act, the Tribunal is required to hold a hearing in proceedings that involve the exercise of a substantive Division function. (2) However, the Tribunal may dispense with a hearing for the purposes of making an ancillary or interlocutory decision of the Tribunal."
It is apparent from the term "may dispense" in clause 6(2) that the power to dispense with a hearing is discretionary, albeit that discretion must not be exercised arbitrarily.
The Tribunal found [39] that as the decision which the Appellant sought reviewed was interlocutory the power to dispense with a hearing under clause 6(1)(b) of Schedule 6 of the CAT Act was enlivened. That finding is controversial. The Tribunal recorded that it then "had to consider whether or not to dispense with a hearing, or whether to conduct a hearing before determining the matter". As is not in doubt, and the Tribunal's subsequent reasons make clear, dispensing with a "hearing" did not mean that the merits of the Appellant's review application were not considered.
The Tribunal took into account [40] as a "factor weighing in favour of a hearing" the Appellant's request to have "an opportunity to put his case to support his application". The Tribunal considered that, as clause 9(1) of the NCAT Regulations, which limits the decisions which are able to be set aside to a decision which "determines proceedings" was not satisfied, conducting a hearing would not have changed the Tribunal's findings.
The Tribunal referred [42] to s 36(1) of the CAT Act, which obliges the Tribunal to conduct proceedings in a manner that facilitates the just, quick and cheap resolution of the real issues in the proceedings. The Tribunal also had regard [42] to the requirement of s 36(3) of the CAT Act which provides that the practice and procedure of the Tribunal should be implemented so as to facilitate the resolution of issues between parties in such a way that the cost to the parties and the Tribunal is proportionate to the importance and complexity of the subject matter of the proceedings.
The Tribunal held [43] that conducting a hearing "would have resulted in additional and unnecessary time, cost and expense to the parties and the Tribunal" and that "importantly" the "welfare and interests of the Appellant's parents would not have been served by having a hearing of a matter "that could only fail".
Under the heading "Review of decisions of registrar" the Tribunal then considered [45]-[71] the merits of the Appellant's review application. With respect to the application for a further summons to NSWTAG, the Tribunal recorded its reasons for refusing the Appellant's review application on the basis that "the change of date from 17 May 2023 to 6 June 2023, as the end date of the date range for certain groups of documents, being of two weeks, does not materially alter the description of the documents sought and does not alter my view that the new application for summonses should be dismissed. There is nothing in the material filed to date in respect of the substantive proceedings in respect of (YDZ and his wife) to indicate that this two week period is likely to be critical to the matters that will be considered by the Tribunal" [52].
With respect to the further summons sought to be issued to Hall & Prior t/as Bexley Care Centre, the Tribunal recorded its reasons for refusing the application [58] in part because the issue had already been determined on 25 May 2023, but, "in addition, the change of date from 17 May 2023 to 6 June 2023, as the end date of the date range for certain groups of documents, being a period of two weeks, does not materially alter the description of the documents sought and does not alter my view that the new application for summons directed to Hall & Prior t/as Bexley Care Centre should be refused".
With respect to the summons directed to Lilian Wells Nursing Home, the Tribunal's reasons [64] for rejecting the Appellant's review application were in substantially the same terms as those with respect to the summonses to the entities to whom reference has already been made.
With respect to the summons directed to NSWTAG (Trustee Division) the Tribunal recorded [67] that there was one material difference between the original summons and the Appellant's subsequent request. The Tribunal accordingly found [68] that the Appellant could issue a summons by 30 June 2023 to the Proper Officer of NSWTAG to produce "copy of any record of all creditors or potential creditors in regards to (YDZ and his wife) as at 6 June 2023". For the reasons the Tribunal recorded [69]-[70] the Tribunal otherwise rejected the Appellant's review application.
In view of the ambit of the present appeal, it is unnecessary to refer to later portions of the Tribunal's reasons for its decision.

The Tribunal's reasons for decision of 6 July 2023

On 6 July 2023 the Tribunal dismissed the Appellant's application to set aside the orders of the Tribunal of 23 June 2023. In its reasons of 6 July 2023 the Tribunal reiterated why the decision of 23 June 2023 was interlocutory [5] and referred [6] to the provisions of clause 9(1) of the NCAT Regulation, to which the Tribunal referred in its reasons of 23 June 2023. The Tribunal concluded [7] that "the decisions made on 23 June 2023 would not determine proceedings. The precondition to the set aside power was not met and so (the Appellant's) application to set aside the decisions is dismissed on the basis that the application was misconceived under s 55(1)(b) of the NCAT Act".
Written reasons for the decision of the Tribunal of 17 July 2023 do not appear to have been taken out. The Appeal Panel has not been directed to any request for written reasons for that decision. It is apparent from the terms of the orders that, save in the one respect about which the Appellant complains, the orders were in the nature of directions intended to facilitate the hearing of the substantive proceedings on 19 September 2023. As recorded earlier, the Tribunal refused the Appellant's application to have the guardianship review proceedings and financial review proceedings heard separately from each other (order 1.2).

Principles governing the appeal

In Collins v Urban [2014] NSWCATAP 17 the Appeal Panel stated at [84] that ordinarily it is appropriate to grant leave to appeal only in matters that involve: "(a) issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; or (c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed."
In P v NSW Trustee and Guardian [2015] NSWSC 579 at [191] Lindsay J indicated that five qualifications should apply to the comments of the Appeal Panel in Collins in the context of an appeal from the Guardianship Division. Four of those qualifications are relevant in appeals to the Appeal Panel (rather than to the Court). The four qualifications are: "(i) there is a need to take s 4 of the Guardianship Act specifically into account, as recognised in BPY v BZQ [2015] NSWCATAP 33; (ii) in deciding in how to proceed in dealing with any challenge to a decision of the Guardianship Division, it is important to be mindful of a need, characteristic of the protection jurisdiction but reinforced by statute, to administer a protected estate without strife, in the simplest and least expensive way; with informality of procedure; and in a manner calculated to facilitate the just, quick and cheap resolution of the real issues in dispute; (iii) given the broad evaluative or discretionary content of most decisions made on an exercise of protective jurisdiction, guidance about what is or may be an error of principle may, in particular cases, be derived from House v The King (1936) 55 CLR 498 [1936] HCA 40; and (iv) in reviewing an evaluative or discretionary decision of the Guardianship Division, it is necessary to make due allowance for the possibility that the Division's discretionary powers, in the exercise of a protective jurisdiction, are unconfined except by the subject matter, scope and purpose of the Tribunal's jurisdiction."
The Appeal Panel must give effect to the guiding principle referred to above when exercising functions under the CAT Act. That is reinforced by s 38(4) of the CAT Act, which requires that the Tribunal act with "as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms".
Because of the complexity and technicality of the concept underlying the Tribunal's appellate regime with respect to questions of law and leave to appeal, self-represented appellants may sometimes struggle to identify and articulate their grounds of appeal with the precision that those concepts require. It is thus not inappropriate having regard to the guiding principle 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" (Cominos v Di Rico [2016] NSWCATAP 5 at [13]). In doing so in guardianship matters, the Appeal Panel may adopt a liberal approach, having regard to the protective nature of the Tribunal's guardianship jurisdiction (ZNX v ZNY [2020] NSWCATAP 41 at [29]). However, the Appeal Panel must act fairly and impartially (Bauskis v Liew [2013] NSWCA 297 at [68]) and avoid the temptation "to itself draft its own Grounds of Appeal and then resolve those Grounds" (SZTOG v Minister for Immigration and Border Protection [2018] FCA 112).
Particularly in view of the Appellant's at times emotional presentation of his appeal, and persistent complaints that he has previously been denied procedural fairness by the Tribunal throughout his parents' guardianship and financial management proceedings, the Appeal Panel endeavoured to interrupt the Appellant's submissions as little as possible and, when doing so, attempted to either inform the Appellant of matters that he did not need to traverse or further traverse or endeavoured to focus him on what seemed to be the real issues of potential substance which the Appellant was trying to raise.
In Alexakis v Health Care Complaints Commission [2021] NSWCA 217 at [11] the Court of Appeal reiterated what it described as "the general principle applied by this Court in dealing with interlocutory appeals from matters of practice and procedure, namely that significant restraint will be applied before granting leave". As is not in doubt, the interlocutory order in this case was an order with respect to practice and procedure.

The Appellant's grounds of appeal

The Appellant's grounds of appeal asserted: "1 The Applicant's evidence was ignored. 2 The Tribunal Member made unfair and unjust orders in the Applicant/Appellant's absence. 3 Further grounds will be given when the Appellant Seeks Counsels Assistance. 4 Orders made in the Applicants/Appellant's Absence despite the Applicant/Appellant's made a Specific request for the hearing to be made in person and for the Applicant/Appellants to be present. 5 The Applicants/Apellants was denied the right to make a disqualification of the presiding member."
In the course of his oral submissions, the Appellant made clear the substance of his various complaints. It is convenient to commence with the Appellant's complaint that he was denied the opportunity to have an oral hearing of his review application. With respect to the Appellant, nothing to which he has referred establishes that any matter which he could have raised in oral submissions on 23 June 2023, 6 July 2023 or 17 July 2023 could, or should, have produced a different outcome.
The primary decision of relevance for present purposes was that of 23 June 2023. In the passages which have earlier been referred to, the Tribunal considered whether to dispense with an oral hearing of the Appellant's review application. In our view it was reasonably open to the Tribunal to dispense with a hearing, and to do so for the reasons which it recorded.
The Tribunal did not, without proper consideration, dispense with a hearing. It is relevant in this regard to refer briefly to the practical effect of the Tribunal's decision. The decisions of the Tribunal which the Appellant challenges do not preclude him from seeking the issue of further summonses to the entities referred to in the summonses which he has apparently issued, and the further summonses which he sought to have issued. In the event that the Appellant could demonstrate that production and inspection of documents pursuant to those summonses revealed that recipients of them failed to produce documents which should have been produced, he would be likely to be granted leave to issue further summonses to them.
The Appellant advised the Appeal Panel that he has issued the summonses which he was granted leave to issue. Nothing raised by the Appellant suggests that the issue of those summonses has revealed matters which have prompted him to seek to issue further summonses.
The Appeal Panel is not persuaded that any of the decisions of the Tribunal to dispense with a hearing on 23 June 2023, 6 July 2023 or 17 July 2023 was erroneous, and constituted a denial of procedural fairness to the Appellant. What the Appellant would have said of relevance had he been granted an oral hearing, and how it could have led to a different result has not been explained. The Appeal Panel is not persuaded that the Appellant should be granted leave to appeal with respect to the decision to dispense with a hearing of his review applications.
It is logical to then consider the Appellant's contention that he was denied the opportunity to make a disqualification application to apply for the disqualification of the Tribunal Member who dealt with his proceedings on 23 June 2023, 6 July 2023 or 17 July 2023.
The crux of the Appellant's complaints seems to be that, in earlier proceedings in which he was involved, the Tribunal Member who dealt with his application had made adverse findings with respect to the Appellant's credibility and/or made decisions with which he disagreed. Nothing to which the Appellant has referred the Appeal Panel demonstrates either that the Tribunal Member who dealt with his review application on each relevant occasion did not bring an impartial mind to bear on the determination of the Appellant's application or how any such lack of impartiality would have led the member to determine his application other than on its merits and according to law (Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63; 176 ALR 644; 75 ALJR 277).
In Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48; 174 ALR 655; 74 ALJR 1380 the High Court said at [11] that the "test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias (which, in the present case, was said to take the form of prejudgment) is whether a fair minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide".
Nothing to which the Appellant has referred the Appeal Panel satisfies the relevant test. It is relevant in this regard that the determinations of the Tribunal which give rise to the present appeal did not involve any assessment of the credibility of the Appellant. They could not have been influenced by any view previously formed in that regard. The issue was whether, on the material presented by the Appellant, the decision of the Registrar with respect to the Appellant's application to issue further summonses to the same entities as the Appellant's original summonses should be reviewed. The reasons for the decision of the Tribunal of 23 June 2023 identify the basis upon which, save in one limited respect, the Appellant's review failed. The asserted loss of the opportunity to make a disqualification application on each of the relevant dates was the loss of the opportunity to make an application which would almost certainly have been refused, and properly so.
The Appellant has not identified any evidence which he placed before the Tribunal on 23 June 2023, 6 July 2023 or 17 July 2023 which was "ignored" by the Tribunal. That is unsurprising given the terms of the summonses which the Tribunal identified and considered in its reasons of 23 June 2023. Similarly, in what way the orders made on any of the relevant dates were "unfair and unjust" has not been identified, save to the extent that the Appellant disagrees with them.
On 8 December 2023 the Appellant sent an email to the Tribunal setting out a series of orders which he sought in the appeal but said that he had overlooked providing to the Appeal Panel during the hearing on 7 December 2023. The first order sought is unexceptional, being that the Appellant's appeal be upheld. The Appeal Panel has been in no doubt that the Appellant has at all relevant times sought that his appeal be upheld.
The balance of the orders which the Appellant sought were directions with respect to a hearing in which he is involved which is apparently listed before the Guardianship Division of the Tribunal on 17 January 2024. Those proceedings have not been before the Appeal Panel, and we know very little about them, and certainly not enough to be making directions in those proceedings. Apart from any other reason for not doing so, as is readily apparent no party with an interest in those proceedings has had an opportunity to be heard in relation to the directions sought by the Appellant.
The Appellant submitted that the Tribunal had erred by rejecting his application that the guardianship and financial management proceedings be heard separately. The Appellant said that he had previously unsuccessfully opposed an order separating the hearing of the guardianship and financial management proceedings. The Appellant did not direct us to any decision to that effect. Accepting the Appellant's contention, does not change anything. The Appellant has not directed the Tribunal to any fact or circumstance which would suggest that the Tribunal's discretion to have the guardianship and financial management proceedings with respect to the Appellant's father heard together was erroneous in any way known to the law.
Both the guardianship and financial management proceedings relate to the same person. As is not in doubt, in the circumstances of the Appellant's father, it would be difficult for the Tribunal to meaningfully deal with guardianship issues without also dealing with issues relating to financial management, and vice versa. That is because the effectiveness of guardianship orders is often determined, or at least influenced by the terms of any orders for financial management. To the extent that the Appellant may argue that his father does not require orders for guardianship or financial management, it can reasonably be assumed that the facts and circumstances upon which he relies with respect to the asserted absence of need for a guardianship order are the same as those upon which he relies with respect to the asserted absence of need for a financial management order, and vice versa. Similarly, to the extent that the Appellant may contend that there should be guardianship and financial management orders with respect to his father but that he should be the guardian and financial manager, although not entirely identical, similar factual considerations would apply to both proceedings.
It is difficult to imagine, and the Appellant has not identified how the interests of justice would be potentially impeded by having the guardianship and financial management proceedings heard together or enhanced by having them heard separately. In all the circumstances, to separate the proceedings would appear the antithesis of the objectives of s 38 of the CAT Act. Nothing to which the Appellant has referred us suggests otherwise.
The Appeal Panel is comfortably satisfied on the material before it, and having regard to the nature of the Appellant's contentions with respect to the guardianship and financial management of his father, there is no prejudice or potential prejudice to the Appellant in having the proceedings heard together.
In the course of his oral submissions, and particularly in the context of procedural fairness, the Appellant referred the Appeal Panel to Zadig, a work of Voltaire, as well as the writings of Blackstone and the former Justice Kirby. Whilst the Appeal Panel suggested to the Appellant at the commencement of the hearing at 1415 that it would be likely to invite him to "wrap up" his submissions at around 1545, the Appeal Panel did not do, or need to do that. The Appellant concluded his submissions in his own time, and without suggesting that there was more that he wished to say which he was prevented from saying. As the transcript of the Appellant's submissions would confirm, and with respect to him, a not insignificant part of the time utilised by the Appellant for oral submissions involved matters which, although upsetting for the Appellant, could not, as a matter of law, advance his appeal. The Appeal Panel is not satisfied that the Appellant was denied procedural fairness at first instance, and has been assiduous in affording him procedural fairness in the appeal.
For the foregoing reasons, the Appeal Panel is not persuaded that any of the Appellant's pleaded grounds of appeal, or unpleaded challenges to the decisions of the Tribunal of 23 June 2023, 6 July 2023 or 17 July 2023 should be disturbed. Leave to appeal against those decisions would be refused on that basis.

The Appellant's further material

The Appeal Panel received and has considered the bundle of documents provided by the Appellant at about 1224 on 7 December 2023. The first of those documents is a Centrelink Medical Certificate which appears to relate to the Appellant stating that because of "anxiety, depression, PTSD", the date of onset of which was stated as 10/09/2018, the Appellant has been and will be unfit for "work/study" from 18 November 2023 to 18 February 2024. Although the document was dated 20 November 2023, it recorded "back pain, depression, will have back operation on 9/11/2022". It is unclear in what way the Medical Certificate was asserted to, or could advance the Appellant's application for leave to appeal.
Document 2 reveals photographs of a package of Tramal capsules which have apparently been prescribed for the Appellant. Again, it is difficult to understand how the Appellant's connection with that medication could advance the Appellant's application for leave to appeal. The Appellant's presentation before the Appeal Panel suggests that the guardianship and financial management proceedings with respect to his parents have been confronting and distressing for the Appellant, but not so as to raise concerns about his capacity to conduct his application for leave to appeal.
Annexure 3 to the Appellant's bundle comprised a series of directions made by the Tribunal on 12 May 2023 which varied, by consent, directions made on 14 April 2023. None of those directions relates to the summonses, or assumes significance for present purposes.
Annexures 4, 5, 6, 7 and 8 all relate to a person who the Appellant described as a notoriously violent and dangerous criminal. Annexure 8 was said to be the website of "poison man" as the Appellant said this man is known. The Appellant informed the Appeal Panel of the English meaning of words which appear on a number of the annexures. The crux of the Appellant's submissions in relation to the "notorious criminal" appeared to be that he facilitated the receipt of highly prejudicial and improper evidence by the Tribunal in the guardianship and financial management proceedings in 2019. The Appellant claimed that the material, which he has not been permitted to see, influenced the Tribunal's decisions to his detriment. The nature of the highly prejudicial evidence was not identified. Nor did the Appellant identify when he said that he came to know of the existence, or receipt of whatever the evidence might be. Nothing raised by the Appellant in relation to "poison man" has relevance to any of the matters with which the Appeal Panel is presently concerned. It is a matter of record that the Tribunal member who heard the 2019 proceedings recused herself from sitting on the present application for leave to appeal.
In the course of his submissions the Appellant made frequent allegations of impropriety on the part of NSWTAG and members of the Tribunal. The Appeal Panel was not referred to any evidence of such matters and, in any event, they appear to relate to proceedings which were determined more than four years ago in any event. As he demonstrated in 2020, the Appellant is aware of the availability of proceedings in the Supreme Court to address assertedly erroneous decisions of the Appeal Panel of the Tribunal.
Annexure 9 to the Appellant's bundle relates to criminal proceedings on a date which is not readily apparent involving drug charges against a female named Sarah Rutherford. Annexure 10 is a media report of a sentencing hearing of Ms Rutherford in the District Court of New South Wales. The Appellant's view that the intensive correction order reportedly made with respect to Ms Rutherford by the District Court was grossly and shamefully inadequate. Inferentially, the case is an example of the asserted failure of courts, and the Tribunal to do justice. Annexures 11 and 12 were copies of further media reports of the activities of Sarah Rutherford.
What may have happened in another case not involving the Appellant or his parents, of which his knowledge appears referable only to media reports assumes no significance for present purposes. The Appellant has strong feelings about the inadequacy of the sentence imposed on Ms Rutherford. As a citizen that is his right, but his views are not relevant to any of the matters with which the Appeal Panel is presently concerned.
A document on the letterhead of "Austral Agistment and Animal Shelter" described as "a Non-For Profit Organisation Rescuing and Saving Abandoned and Sick Animals" dated 28 June 2023, addressed to the Tribunal and signed by the Appellant appeared behind Annexure 13 in his bundle. Having asserted that the Appeal Panel was a "Higher Authority" than the Tribunal, the Appellant submitted that the orders of 23 June 2023 which "varied, changed, altered and ignored" orders made by a "principal registrar" by way of directions in an appeal were without power and thus null and void. Nothing to which the Appellant has referred the Tribunal establishes that, to the extent that a member of the Guardianship Division of the Tribunal may have varied procedural orders made by a Principal Member in a directions hearing in the Appeal Division was beyond power, or factually wrong or legally flawed. Consistently with the power of the Tribunal to control its own processes pursuant to s 38(1), and the requirements of s 38(4) and the "guiding principle" articulated in s 36(1) of the CAT Act, the Tribunal member could vary directions made by the Appeal Panel, provided that doing so was in the interests of justice. It has not been established that doing so in this case was contrary to those interests.
The balance of the documents contained in the Appellant's bundle were copies of orders of the Tribunal to which reference has earlier been made.

Conclusion

With respect to the Appellant, who appears to genuinely believe that he has been egregiously dealt with by NSWTAG and the Tribunal, nothing to which he has referred advances his case with respect to the matters which are before the Appeal Panel.
None of the decisions challenged by the Appellant has been shown to be beyond jurisdictional power. None has shown to have been reached arbitrarily or without regard to relevant matters. Nor have those decisions been shown to have been reached by having regard to irrelevant matters. The Tribunal does not accept that the Appellant was denied natural justice or procedural fairness in any of the proceedings which are the subject of the orders he challenges. The decisions were not so unreasonable that no reasonable decision maker could have made them. Nor were they arrived at by a process contrary to law or logic.
Even if, contrary to the Appeal Panel's conclusions the Appellant demonstrated legal error in some way, that would not change anything. If, having reviewed the documents which are produced pursuant to the summonses which the Appellant has had leave to issue, he considers that there must be documents covered by the summonses which have not been produced, whether by further summons or specific requests for production, or ultimately by examining the relevant officers of the entities in question, there are a number of ways in which the Appellant can address any asserted failure to produce documents under summons which should properly be produced. We should not be taken to be suggesting or implying that any summonses which the Appellant has been granted leave to issue have not been complied with. The Appeal Panel knows nothing about such matters, and does not need to in this application for leave to appeal.
The orders of the Tribunal are the application for leave to appeal filed on 21 July 2023 will be dismissed.

Order 1. The appeal filed on 21 July 2023, as amended to seek leave to appeal on 7 December 2023 is dismissed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 December 2023

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