YHG v Public Guardian

Grounds of appeal

1. The appellant has a right to appeal the decision now under appeal, an "internally appealable decision", on any question of law or, with the leave of the Appeal Panel, on any other ground: Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), s 80(2)(b).
2. The appellant is required to identify with precision the question of law said to be raised by the appeal: Ferella & Anor v Chief Commissioner of State Revenue [2014] NSWCA 378 at [6], [22]; Schwartz Family Co Pty Ltd v Capitol Carpets Pty Ltd [2017] NSWCA 223 at [13]. She failed to do so in the notice of appeal and submissions in support. In the appeal the appellant was ably assisted by a disability advocate but not legally represented. Therefore, in considering whether the appellant has identified a question of law we have adopted the "more generous or benevolent approach" endorsed by the Court of Appeal (Griffiths AJA, Meagher and Kirk JJA agreeing) in Kudrynski v Orange City Council [2024] NSWCA 33 at [50]-[51] and ask whether, as a matter of substance, there exists a question of law.
3. From the notice of appeal together and the appellant's oral and written submissions the following questions of law can be discerned: 1. whether the Tribunal denied the appellant and/or YKX procedural fairness by proceeding to review the 2022 guardianship order at the hearing on 28 September 2023 (the review hearing) in the absence of YKX; 2. whether the Tribunal failed to take such measures, as it was required to by 38(5)(a) of the NCAT Act, as are reasonably practicable to ensure that the appellant understood the nature of the review proceedings, specifically that the Tribunal would not be considering "financial management" at the review hearing; 3. whether the Tribunal failed to ensure, as it was required to by 38(5)(c) of the NCAT Act, that the appellant had a reasonable opportunity to be heard by being unkind towards and attempting to silence the appellant during the review hearing; 4. whether, in reviewing the 2022 guardianship order as required by s 25(2) of the Guardianship Act, the Tribunal applied the wrong test; 5. whether the Tribunal erred by admitting into evidence a report prepared by neuropsychologist, Dr Amy Baird, in circumstances where Dr Baird declined to provide an opinion about the appellant's capacity to make decisions about her personal affairs; 6. whether the Tribunal erred by inviting the director of the appellant's accommodation and services provider to make submissions during the review hearing in circumstances where the director had a "conflict of interest".
4. In addition, the appellant seeks leave to appeal on the ground that the finding made by the Tribunal that she was not capable of managing her personal affairs was against the weight of evidence.

Ground 1: whether the Tribunal denied the appellant and/or YKX procedural fairness by proceeding to review the 2022 guardianship order at the review hearing, in the absence of YKX

1. The precise nature of the relationship between the appellant and YKX is unclear. For the purpose of this appeal, we will assume, but not decide, that at the time of the review proceedings, YKX was the appellant's spouse within the meaning of s 3 of the Guardianship Act. In these reasons we will refer to YKX as "the partner".
2. The appellant contends that the Tribunal failed to notify the partner of the review hearing, and, in the alternative, to give the partner a reasonable opportunity to participate in that hearing. In submissions in support of the appeal, the appellant wrote that she felt it was unfair that the partner "was unable to attend the hearing to be there for support and provide evidence against the guardianship as he believes there is no need for it and that I have capacity to make my own decisions". The appellant claimed that the partner was not "sent a link to be able to attend remotely" and, although the Tribunal tried to call the partner, he was working and could not answer his phone.
3. On 12 September and 21 September 2023, the Registrar sent the partner notices of the review hearing listed for 23 September 2023. Each notice contained the time and location of that hearing and information about how to participate by audio visual link or telephone. In an email sent to the partner on 21 September 2023, the Registrar provided further information about how to attend the hearing remotely, including a link to enable the partner to attend.
4. A transcript of the hearing on 23 September 2023, prepared by the appellant and filed in these appeal proceedings, reveals that about eight minutes into that hearing, the presiding member asked the appellant whether the partner would be participating in that hearing. After confirming that the partner had returned from overseas, the appellant said that it was her understanding that "he had some work he was doing this morning". The Tribunal then telephoned the partner and when he did not answer left a message on his voicemail. Twenty minutes later the Tribunal again called the partner. Again he did not answer.
5. At [17] of the Reasons, the Tribunal said: 17 [YKX], who is described as [YHG's] partner and support person, did not participate. We phoned him and he did not answer. We were informed by [YHG] that he may have been busy at work. We were satisfied that [YKX], was aware of the hearing being listed and decided to proceed in his absence.

Consideration

1. The Tribunal was required to observe the rules of natural justice, or, as they are now more commonly referred to, procedural fairness: NCAT Act, s 38(2). Those rules include the hearing rule which is reflected in s 38(5)(c) of the NCAT Act, and requires the Tribunal to take such measures as are reasonably practicable to "ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings".
2. As a consequence of his status as the appellant's spouse, the partner was a party to the proceedings to review to the 2022 guardianship order (the review proceedings) and was entitled to be given written notice of the review hearing: Guardianship Act, ss 3F(3)(c), 25(4).
3. In circumstances where: 1. the partner was given written notice of the review hearing, and 2. where in the course of that hearing the Tribunal telephoned the partner twice to invite him to participate, it cannot reasonably be suggested that he was not notified of the hearing or given a reasonable opportunity to be heard at that hearing.
4. The premise on which this ground rests is not established. This ground of appeal must be rejected.

Ground 2: whether the Tribunal failed as required by 38(5)(a) of the NCAT Act to take such measures as are reasonably practicable to ensure that the appellant understood the nature of the review proceedings

1. The appellant contends that she was not informed that at the review hearing the Tribunal would only be reviewing the 2022 guardianship order and not "considering the financial management". By the latter we understand the appellant to mean the financial management order made by the Tribunal on 2 February 2023.

Consideration

1. By s 38(5)(a) of the NCAT Act, the Tribunal was obliged "to take such measures as are reasonably practicable to ensure that the parties to the proceedings before it understand the nature of the proceedings". Whether the Tribunal complied with that obligation requires consideration of the circumstances of each case, including the nature of the proceedings; any disability or disadvantage which might reasonably be expected to impede the ability of a party to understand the nature of the proceedings; any information provided, or made available to the party which explained the nature of the proceedings; any statement made by the party relevant to their understanding of the proceedings.
2. It may be, as she claims, the appellant did not appreciate, or fully appreciate, that at the review hearing the Tribunal would not be reviewing the financial management order that had been made eight months earlier. However, taken together, the following factors do not support the contention that the Tribunal failed to take such measures as are reasonably practicable to ensure that the appellant understood the nature of the review proceedings: 1. The notices of hearing sent to the appellant on 12 September and 21 September 2023 stated that at the review hearing the Tribunal would be conducting an end-of-term review of the 2022 guardianship order. The notices were written in plain English. 2. In a hearing report dated 21 September 2023 and sent on the same day to all parties, a member of staff of the Guardianship Division recorded that the matter before the Tribunal at the review hearing was the "end of term review of the guardianship order made on 10 October 2022". In that report the staff member recorded that on 21 September 2023, they spoke to the appellant and: "[E]xplained the nature of the upcoming hearing. [The appellant] informed that she is seeking to revoke the order and that she no longer wants to be subjected under the guardianship order. She confirmed to dial into the hearing." 1. There is no evidence which might suggest that, because of a disability, lack of education or some other factor, the appellant was unable to read or comprehend the notices of the hearing or the hearing report. 2. The sound recording of the review hearing filed by the appellant in these proceedings reveals that, at the commencement of that hearing, the presiding member explained that the Tribunal would be reviewing the 2022 guardianship order only. Towards the end of that hearing the presiding member said words to the effect that if the appellant wanted the February 2023 financial management order to be reviewed, she could apply to NCAT for review. 3. A personal statement addressed to "the Tribunal members", dated 21 September 2023, tends to indicate that when the appellant prepared that statement, she had a reasonable understanding of the nature of the review proceedings. The focus of that statement was the appellant's experience of being the subject of guardianship and her strong opposition to further guardianship orders being made. The statement makes no mention of financial management. In that statement the appellant said that she had "guardianship for medical, mental and accommodation decisions", that her "life has been torn apart" by guardianship and that she felt she had "no choices". The appellant went on to refer to several decisions made on her behalf by the NSW Public Guardian with which she disagreed and said that she wanted her "decision-making powers back".
3. This ground of appeal must be rejected.

Ground 3: whether the Tribunal failed as required by 38(5)(c) of the NCAT Act, to ensure that the appellant had a reasonable opportunity to be heard at the review hearing

1. In written submissions in support of the appeal the appellant said that during the review hearing she felt that the presiding member was "unkind and silenced me". In addition, she said that the presiding member was "argumentative with me which made me feel uncomfortable and not heard". In oral submissions the appellant contended that the Tribunal failed to give her the opportunity to "have a voice" and a large part of the hearing was devoted to "arguing about previous guardianship orders". She said, "the presiding member wouldn't let the issue go".
2. The appellant conceded that there was nothing in the transcript of the hearing which supported her claim that the presiding member was "unkind and silenced me". However, the appellant contended that the sound recording of that hearing revealed that the tone of voice used by the presiding member was "dismissive and unkind".

Consideration

1. There will be circumstances where rudeness, belittling or unkind conduct by a Tribunal member towards a party may support a finding that the Tribunal failed to afford procedural fairness, by denying that party a reasonable opportunity to be heard: NCAT Act, ss 38(2), 38(5)(c). In addition, such conduct may support a finding the Tribunal's conduct of the proceedings gave rise to a reasonable apprehension of bias.
2. The appellant's claim that the presiding member was "unkind and silenced me" largely relates to the following exchange which concerned whether the appellant had been the subject of a guardianship order before 2022: TRIBUNAL MEMBER: "And after that you [YHG] were discharge back into the community but then readmitted to [Mental Health facility]" YHG: "No, in fact I want to clear this up, I was never readmitted in mental health after that. So I don't know where that's coming from." TRIBUNAL MEMBER: "So, you, but you were at [Mental Health facility] when the first guardianship hearing was on, Sorry". YHG: "yes". TRIBUNAL MEMBER: "This time around cause you've been under guardianship, I think from 2001 to 2013, and the second time round was after that." YHG: "No, I correct you again with that, I've never be under guardianship before between 2001 to 2013, I never had guardianship." TRIBUNAL MEMBER: "Well there's mention here that the order was lapsed in 2013". YHG: "Well I don't know what's going on here, but you're wrong. And I could get family to back me up on that. So I don't want to sit here to today and there's evidence that is incorrect." TRIBUNAL MEMBER: "So in, there was an order in existence, I'm looking at the old file, in 2012 there was a guardianship order and then that order ended on the 16th of April 2013." YHG: "Ah, that's incorrect" TRIBUNAL MEMBER: "Well, I'm looking …" YHG: "I've never been under guardianship" TRIBUNAL MEMBER: "I'm look at the orders [YHG] , But it doesn't matter, that was a long time ago" YHG: "Well, it may be a long time ago, that start I was not under guardianship, so I don't what else to say to you but you've got incorrect information there" TRIBUNAL MEMBER: "Well you're, you're unfortunately you're wrong on this case cause I'm looking at the order, I'm looking at them in my file" YHG: "Well, I'm sitting here telling you I was not under guardianship." TRIBUNAL MEMBER: "Okay, alright, well I'll leave that alone. I'm looking at order date 16th of April 2013 saying the tribunal reviewed the order and revoked, revoked the order on that date. Anyway, as I said that was a long time ago and you don't seem to recall it but it's there. I guess the point I'm trying to make is in your statement" YHG: "I was not under guardianship sir, I was not under guardianship. And not recall it, I got a really good memory and I know my life. I wasn't under a guardianship. Now I think it may have been put in but it was not, it didn't go ahead, that's the thing. I was with, my COS with NDIS, I didn't have NDIS until 2018."
3. As the background to this appeal set out at [5]-[15] above reveals, the presiding member and the appellant were both mistaken in their respective understandings of the history of the guardianship orders made in respect of the appellant. The first guardianship order in respect of the appellant was made in 2012, not 2001, as asserted by the presiding member, or, 2002, as asserted by the appellant.
4. The exchange set out above could not be fairly characterised as demonstrating that the presiding member was belligerent and "refused to let the issue [of the history of the appellant's guardianship orders] go". That exchange lasted for a minute or two and ended with the presiding member saying, "I'm look[ing] at the orders Miss [appellant], But it doesn't matter, that was a long time ago", and later, "[A]s I said that was a long time ago and you don't seem to recall it but it's there".
5. Having reviewed the transcript and the accompanying sound recording we are not persuaded that the tone used by the presiding member during the above exchange, or any other part of the hearing, could be fairly characterised as harsh, belligerent or unkind. The presiding member did not raise his voice. His tone of voice was unremarkable.
6. The premise on which this ground rests is not established.

Ground 4: whether in reviewing the 2022 guardianship order the Tribunal applied the wrong test

1. The appellant contends that, in exercising the power to renew the 2022 guardianship order, the Tribunal misapplied s 25C(2) of the Guardianship Act by failing to undertake the review with "fresh eyes". The appellant contends that the Tribunal, in effect, adopted the findings made by earlier Tribunals and failed to consider her current circumstances.

Statutory framework

1. Section 25(2)(b) of the Guardianship Act, requires the Tribunal to review a guardianship order at the expiration of the term for which it has effect.
2. The powers available to Tribunal on review of a guardianship order under s 25(2)(b) are as follows: 25C Action on review … (2) On reviewing a guardianship order under section 25(2)(b), the Tribunal may - (a) renew, or renew and vary the order, or (b) determine that the order is to lapse (and revoke the order in respect of any unexpired period for which the order is specified to have effect).
3. Section 14 of the Guardianship Act states: 14 Tribunal may make guardianship orders (1) If, after conducting a hearing into any application made to it for a guardianship order in respect of a person, the Tribunal is satisfied that the person is a person in need of a guardian, it may make a guardianship order in respect of the person. (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.
4. Section 4 imposes a duty on the Tribunal when exercising functions under the Guardianship Act to observe the principles in s 4 of that Act: 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.
5. In IF v IG [2004] NSWADTAP 3, an Appeal Panel of one of NCAT's predecessors, the NSW Administrative Decisions Tribunal pointed out at [20] that there is no provision in the Guardianship Act which stipulates the matters which the Tribunal is to take into account when performing its review function under s 25(2)(b) and when determining which of its powers in s 25C(2) should be exercised. The Appeal Panel concluded at [20] that, by implication, the matters which must be considered are those set out in s 14 of the Guardianship Act. At [24], the Appeal Panel explained that, when exercising its powers to make or renew a guardianship order, the Tribunal was required to undertake a two-step process: 1. First, the Tribunal must satisfy itself that the person in respect of whom an application is made, or whose guardianship order is being reviewed, is a "person in need of a guardian" as defined by s 3 of the Guardianship Act. 2. Second, if satisfied that the person meets that statutory definition, the Tribunal must decide whether to exercise or not to exercise its discretionary power to make (or to renew) a guardianship order. That task requires the Tribunal to "exercise a structured discretion" by considering all of the matters set out in s 14(2), together with any other relevant matters. The matters listed in s 14(2) have no hierarchy or weighting. Each is a mandatory consideration. When undertaking the balancing exercise required by s 14(2) of weighing those factors which favour and those that do not favour the making or renewal of a guardianship order, the Tribunal is required to take into account the general principles set out in s 4 of the Guardianship Act.

Consideration

1. As the appellant correctly stated, when performing its review function under s 25(2)(b) of the Guardianship Act, the Tribunal was required to consider the appellant's current circumstances as at the time it conducted the review of the 2022 guardianship order. While the Tribunal was entitled to consider the fact that guardianship orders had previously been made in respect of the appellant, that history did not operate to create a presumption that the appellant was a "person in need of guardianship". Nor was it a consideration which tended to favour the exercise of the discretionary power to make a further guardianship order.
2. In considering whether, as is contended by the appellant, the Tribunal failed to conduct the review of the 2022 guardianship with fresh eyes, it is necessary to consider the reasons given by the Tribunal for its decision (the Reasons).
3. At [18]-[25], the Tribunal considered whether the appellant was "a person in need of a guardian". At [18], the Tribunal recorded that previous Tribunals had found that the appellant "has a mental illness, PTSD and trauma history and was otherwise disabled by physical impairments caused by trauma … which impacted her decision making". At [19], the Tribunal referred to more recent evidence, including a behaviour support plan dated 27 September 2023, a statement prepared by the appellant dated 21 September 2023, and a report prepared by a clinical neuropsychologist, dated 14 August 2023. At [21], the Tribunal recorded the appellant's view that she was "capable of making her own decisions". At [25], the Tribunal went on state that, based on previous findings and the evidence available at this hearing, it was satisfied that the appellant "continues to have a disability which impacts her making some important life decisions. She is a person for whom the Tribunal could make a further guardianship order."
4. At [26]-[31], under the heading "Should the Tribunal make a further guardianship order and, if so, what order?", the Tribunal set out the types of decisions made by the Public Guardian under the 2022 guardianship order, the types of decisions about the appellant's personal affairs that are likely to need to be made in the foreseeable future and the views of the hearing participants about whether it was appropriate that a further guardianship order be made. At [32]-[36], the Tribunal addressed each of the considerations listed by s 14(2) of the Guardianship Act by reference to the appellant's current circumstances.
5. In deciding whether the appellant was "a person in need of a guardian", the Tribunal considered not only the history of guardianship orders made in respect of the appellant but also more recent evidence about the appellant. The Tribunal did not treat that history as giving rise to a presumption that the appellant was "a person in need of a guardian". Nor did the Tribunal treat that history as a factor which weighed in favour of exercising the discretion to make a further guardianship order.
6. We reject the proposition that in undertaking its review function the Tribunal failed to have regard to the appellant's current circumstances and to look afresh at the question of whether a further guardianship order should, or should not, be made.
7. This ground of appeal is rejected.

Ground 5: whether the Tribunal erred by admitting into evidence the report prepared by neuropsychologist, Dr Amy Baird in circumstances where Dr Baird declined to provide an opinion about the appellant's capacity to make decisions about her personal affairs

1. The appellant contends that the Tribunal erred by admitting into evidence the report dated 14 August 2023 prepared by Dr Baird. Dr Baird is, and was at the time she prepared that report, a professional member of the Guardianship Division of NCAT. Dr Baird was not a member of the panel of the Tribunal which made the decision under appeal.
2. The appellant said that she was told that she could use Dr Baird's report to support her claim that she was capable of making decisions about her personal affairs. The appellant claimed that during the consultations, Dr Baird told her that she did not "do too badly [on neuropsychological testing] given you are taking medication" but failed to mention that in her report. The appellant said that she was "pretty angry" to learn that Dr Baird had declined to express an opinion about her decision-making capacity because she was a member of NCAT. As a consequence, she believed that she had wasted her time by attending the consultation with Dr Baird. Further, the appellant contended that Dr Baird was biased against her because she was a member of NCAT.

Consideration

1. We understand the appellant's primary complaint to be the Tribunal's decision to admit Dr Baird's report into evidence, in circumstances where Dr Baird failed to express an opinion about her decision-making capacity. We also understand the appellant to be concerned about the decision of the Create Disability Services coordinator (the Create coordinator) to request Dr Baird to undertake a neuropsychological assessment, in circumstances where Dr Baird was not prepared to give an opinion about her decision-making capacity. In addition, we understand the appellant to be concerned about Dr Baird's decision to agree to undertake that assessment, in circumstances where she was not prepared to give an opinion about decision-making capacity because she was a member of NCAT.
2. To put this argument in context it is necessary to consider the content of Dr Baird's report in some detail.
3. Dr Baird saw the appellant at consultations on 19 June 2023 and 18 July 2023. In the opening paragraph of her report, Dr Baird recorded that she had been requested by the Create coordinator to undertake "a neuropsychological assessment to characterise [the appellant's] cognitive functioning in the context of a complex medical and psychosocial history including diagnoses of organic delusional disorder and suspected acquired brain injury (ABI), against the background of a spinal injury with paraplegia and previous polysubstance abuse". Under the heading "background", Dr Baird set out the history of the appellant's hospital admissions from May 2022, said to be based on a chronology prepared by the Create coordinator, the appellant's self-report, several medical reports and hospital discharge summaries. Under the heading "current review", Dr Baird listed the medications the appellant reported to be taking, which included "Morphine, Lyrica, antidepressant, and an antipsychotic depot injection". At pages 3 and 4 of the report Dr Baird detailed the results of various tests she had administered to the appellant during consultations on 19 June 2023 and 18 July 2023.
4. Under the heading summary and opinion, Dr Baird wrote: Summary and opinion [YHG] is a 53 year old woman with a complex medical and psychosocial history with numerous psychiatric diagnoses including organic delusion disorder, schizophrenia and PTSD, against the background of medical comorbidities including a suspected ABI, paraplegia due to a spinal injury sustained over twenty years ago, and a history of polysubstance use. There are no medical records available regarding her suspected ABI. She denied ever having any head injury with loss of consciousness. She reports chronic pain and currently receives 24/7 support. She is currently on a CTO, and the Public Guardian and NSW Trustees were appointed in October 2022. She repeatedly expressed her opposition to these appointments and her CTO, and her dislike of her current living environment. On current neuropsychological assessment, the main finding was of markedly reduced speed of processing functions relative to average premorbid estimates. She also showed reduced performances of tasks assessing visual intellectual abilities, working memory (ability to hold and manipulate information in mind) and a single verbal recall task (short story recall). In contrast, her performances of verbal intellectual, other verbal recall (word list learning and recall), visual recall, and executive tasks including those assessing verbal fluency and response inhibition, were in keeping with expected levels. She reported only mild mood symptoms on a formal mood questionnaire. Overall, there is evidence of cognitive dysfunction primarily affecting speed of processing. There are likely multiple contributing factors including her past polysubstance abuse, chronic pain with opioid dependence, and her psychiatric disorders. It is not possible to determine the nature and/or severity or potential cognitive effects of any suspected ABI given the absence of any medical records regarding this, or any neuroimaging investigations. It is noteworthy that her performances of tasks assessing verbal intellectual abilities, executive functions and the majority of verbal and visual recall memory tasks were in keeping with average premorbid estimates. As we discussed I did not undertake any assessment of her decision making capacity in any domain given the potential conflict of interest due to me being a member of the Guardianship tribunal. If she is undergoing a future review of the guardianship and financial management appointments it is recommended she undergo an assessment of her capacity to make decisions in the various domains, as this is likely to fluctuate depending on the severity of her psychiatric and pain symptoms. She would benefit from engagement with an occupational therapist to monitor her functional abilities, and a clinical psychologist for ongoing and regular support for her mood and PTSD symptoms. More regular psychiatric reviews may be warranted given her concerns and reported side effects of her depot medication. I explained to her that I cannot review her psychiatric diagnoses and this requires an updated psychiatric review. I understand she is due to see a pain specialist which is urgently required. (Emphasis added)
5. In the Reasons at [21], the Tribunal recorded that the appellant "took issue with the report from Dr Amee Baird stating that she had been unaware that Dr Baird was a member of the Tribunal and was extremely disappointed that this had not been disclosed to her. She did not want the report to be taken into account". At [23] the Tribunal said: The significance of Dr Baird's report is that there is no finding made in that report to support [YHG's] contention that she has capacity to make her own informed decisions. Dr Baird concludes the report by stating that the question of capacity should be the subject of opinion by someone other than herself for the reasons given in the report. As noted [YHG] was not happy about that.
6. The above passage indicates that the Tribunal appreciated that Dr Baird had not expressed an opinion about the appellant's capacity to make her own informed decisions. If it is suggested that the Tribunal interpreted Dr Baird's failure to express an opinion as tending to indicate that Dr Baird was of the opinion that the appellant lacked capacity to make decisions, we cannot agree.
7. Undoubtedly, the Tribunal would have been assisted by an expert opinion about the appellant's capacity to make decisions about her personal affairs. However, we are unable to agree with the contention that because Dr Baird did not express an opinion about that issue, it was impermissible for the Tribunal to admit Dr Baird's report into evidence or to consider that report. The contents of the report, including the appellant's history, the results on testing conducted by Dr Baird and Dr Baird's analysis of those results, were relevant to issues the Tribunal was required to decide. The Tribunal did not err by admitting Dr Baird's report into evidence over the objection of the appellant.
8. This ground of appeal is rejected.

Ground 6: whether the Tribunal erred by permitting the director of the appellant's accommodation and services provider to make submissions during the review hearing, in circumstances where the director had a "conflict of interest".

1. The appellant contends that the Tribunal erred by permitting the director of her accommodation and services provider (the director) to make submissions during the review hearing, in circumstances where the director had a "conflict of interest". The conflict is said to arise because, if the appellant was no longer the subject of a guardianship order, she would be free to choose an alternative accommodation and services provider and the director was aware of her dissatisfaction with the provider.

Consideration

1. The appellant participated in the review hearing by AVL. At the commencement of that hearing the Tribunal asked the appellant whether there was anyone with her in the room. She identified the director and said, "he is just being my IT support at the moment, he is setting up the TV". When asked whether the director would be giving evidence, the appellant said "No, not at all". (The Transcript misattributes the appellant's comments to a Create coordinator.)
2. About 30 minutes into the hearing the Tribunal noticed that there was a person in the room with the appellant and asked them to identify themselves. The director introduced himself, explained that he was a director of the appellant's service and accommodation provider and requested leave to make a submission. The Tribunal agreed and the director said: "Now if you were to remove the guardianship, I have grave concerns that her health will decline very fast. She has neuropathic pain, her doctor has prescribed her medications. [YHG] refuses to take that medication because her the shakes. Now unfortunately the side effects of that medication because effect the neurons in the body it is a side effect, she refuses to take it, so she is in pain. [YHG] and I have had great conversations around her clinic needs. She loves, hates to see me. But I have grave concerns that if she has got, if these orders are removed. It wouldn't be a very good outcome because of her apprehension and lack of informed choices around her care. I'll give you another example, her CTO [community treatment order] order, her monthly injection. Its an argument to get her there. She says the medication doesn't work, it does work. I don't know how express that anymore. I know that [YHG] would not like to hear this, but if I do not tell you I believe we are setting her up to fail in that regard. She has to pressure areas that the wound care have been looking after, now we just picked up a third one. So I don't know that removing these orders are in her best interest. In regards in living in this, with us, her greatest request that she lives by herself, we have facilitated that.
3. Her dog, is her family. Her dog rules the roof under [YHG] . The staff that we have we tried map into [YHG's] liking, which is not always easy. But [YHG] does rule the roof here, like she should. And we have no aspiration of changing that model for her because we, I, have seen great changes. She is getting out more, she's smiling more, she is arguing with me less and it something that is working. But in regard to her clinic needs, she does need some kind of oversight." The Tribunal was not bound by the rules of evidence and was entitled to 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). In circumstances where the Tribunal had broad inquiry powers, where the separate representative appointed for the appellant in the review proceedings did not object to the director making submissions, and where the appellant was given an opportunity to make submissions after the director, we are unable to agree with the contention that it was procedurally unfair for the Tribunal to have permitted the director to make submissions.
4. Contrary to the appellant's suggestion, there is no rule that the Tribunal is not permitted to have regard to evidence given by a person who has, or is thought to have, an interest in the outcome of the proceedings. Any concern is addressed by the weight to be given to that evidence, which is a matter for the Tribunal.
5. This ground of appeal is rejected.

Should leave to appeal be granted?

1. The appellant seeks leave to appeal. In support the appellant repeats the argument made in respect of Grounds 1 and 3 above.
2. In Collins v Urban [2014] NSWCATAP 17 (Collins), an Appeal Panel of NCAT noted at [84] that to grant leave to appeal under s 80(2)(b) of the NCAT Act, there must be a "sound basis" for granting leave. The Appeal Panel stated that ordinarily it is appropriate to grant leave to appeal only in matters that involve: (a) issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; or (c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed. (Citations omitted)
3. The factors listed in Collins relevant to the exercise of the discretion to grant or to decline to grant leave to appeal from a decision are "not an exhaustive list": AHB v NSW Trustee and Guardian [2017] NSWCATAP 79 at [58]; Edwards v Commissioner for Fair Trading, Department of Finance, Services and Innovation [2019] NSWCATAP 208 at [34]. Where, as here, the decision under appeal was made by the Guardianship Division of NCAT, a relevant consideration in the exercise of the discretion to grant leave is the protective character of the jurisdiction exercised by that Division: P v NSW Trustee and Guardian [2015] NSWSC 579 at [198]; ZII v ZIJ [2018] NSWCATAP 255 at [60].
4. None of the grounds listed in Collins apply in this case. The decision under appeal is of great importance to the appellant but does not raise any issues of principle or public importance. The Tribunal went about its fact finding role in an orthodox manner. There is nothing to suggest from either the Tribunal's conduct of the hearing or the decision it made that an "injustice which is reasonably clear" has occurred. Nor does the protective character of the jurisdiction exercised by the Tribunal warrant the exercise of the discretion to grant leave to appeal for the reasons advanced by the appellant.
5. In declining to grant leave to appeal we note that the 2023 guardianship order is near the end of its term. The review of that order, required to be undertaken by s 25(2)(b) of the Guardianship Act is imminent. It will be open to the appellant to provide evidence about her decision-making capacity and any other matter she considers relevant to the question the Tribunal must decide, that is, whether the appellant is now a "person in need of a guardian", and, if so, whether the discretionary power to renew, or not renew, the 2023 Guardianship order should be exercised.

Orders 1. Leave to appeal is refused. 2. The appeal 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: 02 September 2024