YHY v YHZ

Publication of the names of the parties

1. The publication or broadcast of the name of any person mentioned, or otherwise involved, in an "internal appeal" against decisions made by the Guardianship Division of NCAT, is prohibited: Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), ss 65(1), 65(2). Being an official report of the appeal proceedings, that prohibition does not apply to these reasons: NCAT Act, s 65(3). Nonetheless, because of the sensitive nature of the matters referred to in these reasons for decision, we will continue the usual practice in NCAT and not refer to the parties by name.
2. In this appeal, the Registrar assigned pseudonyms to the parties: "YHZ" (the person who is the subject of the guardianship order made by the Tribunal), "YHY" (the father of the subject person and the appellant in this appeal) and "YJB" (the mother of the subject person and the second respondent in the appeal). For ease of reading, we will refer to YHZ as the son, YHY as the father, and YJB as the mother.

Statutory framework

1. Part 3 of the Guardianship Act 1987 (NSW) sets out provisions related to review of an existing guardianship order. NCAT must review a guardianship order "at the request of any person entitled to request a review of the order" and "at the expiration of the period for which the order has effect": Guardianship Act, s 25(2).
2. As an existing guardian, the mother was entitled to seek review of the 2021 guardianship order: Guardianship Act, ss 25(2)(a), 25B(1)(a).
3. In addition, NCAT was required to review the 2021 guardianship order at the expiration of its term: Guardianship Act, ss 25(2)(b).
4. The action that may be taken by NCAT, on review, is as follows: 25C Action on review (1) On reviewing a guardianship order under section 25(1) or (2)(a), the Tribunal may - (a) vary the order, or (b) suspend or revoke the order, or (c) confirm the order, or (d) renew, or renew and vary the order. (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).
5. Under s 14 of the Guardianship Act, NCAT may make a guardianship order for a person if it is satisfied that the person is "a person in need of a guardian". A "person in need of a guardian means a person who, because of a disability, is totally or partially incapable of managing his or her person": Guardianship Act, s 3(1). A "person who has a disability" is further defined in s 3(2). There is no dispute here that the son is a person in need of a guardian.
6. Before exercising its discretion to make a guardianship order, NCAT must consider all of the matters set out in s 14(2) of the Guardianship Act: (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.
7. When exercising its power to make or to review a guardianship order, NCAT must observe the principles set out in s 4 of the Guardianship Act. That section provides: 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.

The decision under appeal

1. On the review, the Member found that the son continues to be a "person in need of a guardian" and decided to renew and vary the 2021 guardianship order and to appoint the mother as the sole guardian, for a period of one year, with accommodation, health care, medical/dental consent, services, and restrictive practices (chemical and environmental restraints) functions. Orders to that effect were made at the conclusion of the review hearing. Written reasons for that decision were provided to the parties on 6 December 2023 (the Reasons).
2. From a perusal of the Reasons, it is apparent that the Member formed views on the range of guardianship functions that should be granted, and who should be appointed as the son's guardian, based on the written material before her, as well as oral evidence given and oral submissions made at the hearing. Differing views were expressed by the father and mother about the son's best interests, including where he should live, the medical treatment he should receive, and who should be appointed as guardian. The son did not participate in the review hearing.

Nature of an internal appeal in NCAT

1. Decisions of the Guardianship Division of NCAT such as the decision before us are "internally appealable decisions": NCAT Act, s 32(4). To succeed in an appeal, an appellant must demonstrate either an error by the Tribunal below on a question of law, which may be argued as of right; or that permission (that is, "leave") to appeal should be granted to bring the appeal: NCAT Act, s 80(2).
2. An appellant to an internal appeal brought under s 80(2)(b) of the NCAT Act must identify with precision a 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]. Whether a question is one of law must be approached as a matter of substance: Haritos v Federal Commissioner of Taxation (2015) 233 FCR 315; [2015] FCAFC 92 at 62, [94], [203]; Kudrynski v Orange City Council [2024] NSWCA 33 (Kudrynski) at [50].
3. In deciding whether the father had identified a question of law we adopted the "more generous or benevolent approach" adopted by the Court of Appeal (Griffiths AJA, Meagher and Kirk JJA agreeing) in Kudrynski at [50]-[51]. In Kudrynski, the Court of Appeal considered an appeal from a decision of the NSW Land and Environment Court where the notice of appeal prepared by the self-represented appellant was "seriously deficient in several ways" and failed to "articulate clear grounds of appeal": at [34], [36]. While the approach adopted by the Court of Appeal in Kudrynski related to a different statutory context, it nonetheless provides useful guidance to Appeal Panels of NCAT.

Issues for determination in the appeal

1. In his Notice of Appeal lodged 10 January 2024, the father seeks the following orders: a joint guardianship order with the mother for the following functions; health, medical, dental, accommodation, services, restrictive practices, or an order that he be appointed the sole guardian for those same functions. He seeks leave to appeal on questions other than questions of law.
2. The father contends that the decision under appeal was unfair as his case was not fully heard or considered. He also says that he was not given sufficient time to address misleading information and accusations made against him at the hearing; that he was not permitted to fully explain his case; that matters raised in his emailed case were not referred to "and I later actually suspected my emails of 29/8/23 (3), 30/9/23, 14/11 and 14/11/23 were not attached to the file"; and that he asked for an adjournment which was denied. In addition, the father asserted that the Reasons contained factual errors and failed to refer to the information he had filed in support of his case. The father also seeks leave to rely on new or additional evidence that relates to the merits of the decision under appeal.
3. As earlier noted, some documents emailed by the father to Registry on 29 August 2023 were received but, as a result of administrative error, were not given to the Member who conducted the review hearing. We will call these documents the "missing documents" for ease of reference.
4. Applying the principles earlier discussed about identification of a question of law and limiting ourselves to the "missing documents" issue, a question of law that arises in the appeal is whether NCAT denied the father procedural fairness in failing to ensure that he had a reasonable opportunity to be heard on his case or to have his submissions considered in the review proceedings. This is so, particularly in light of the express requirement set out in s 38(5)(c) of the NCAT Act by which NCAT is required to take "reasonably practicable" measures to ensure that parties "have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings". Whether there has been a breach of procedural fairness raises a question of law: see e.g. Kudrynski at [52].
5. Where there has been a breach of the requirement to afford the father procedural fairness, the question arises whether that error was material to NCAT's decision and therefore whether there is jurisdictional error. That also raises a question of law. A jurisdictional error by a tribunal may arise on breach of a condition of making the decision, including, where the tribunal fails to observe a requirement of procedural fairness: LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610; [2024] HCA 12 (LPDT) at [3]. Relevantly, a breach of procedural fairness will constitute jurisdictional error, if the error is material to the tribunal's decision: Nathanson v Minister for Home Affairs (2022) 276 CLR 80; [2022] HCA 26 (Nathanson) at [1], [33] (Kiefel CJ, Keane and Gleeson JJ).

Participation in the appeal

1. The father and mother agreed at the appeal hearing, and we accept, that, as a result of his disability, the son is unable to participate in the appeal process, just as he did not participate in the hearing below. The Public Guardian elected not to participate in the appeal.

Appeal commenced out-of-time

1. By r 25(4)(c) of the Civil and Administrative Tribunal Rules (NSW), the father was required to lodge the appeal by 3 January 2023, 28 days after being given the reasons for the decision under appeal, 6 December 2023. The father lodged the Notice of Appeal on 10 January 2024, seven days after the statutory deadline for lodging the appeal.
2. The father explained that the delay in lodging the appeal was caused by the end-of-year holidays together with the time taken to make enquiries with NCAT's Registry about whether all of his written material had been provided to NCAT. Given that an adequate explanation has been given for the short delay in lodging the appeal, that these are proceedings where NCAT is concerned with the welfare and interests of the son, and that there was no objection to or suggestion that the other parties to the appeal would be prejudiced, we decided to exercise the discretion conferred by s 41 of the NCAT Act to extend the time for filing the Notice of Appeal to 10 January 2024.

Whether NCAT failed to afford the father procedural fairness

Legal principles

1. In determining proceedings before it, NCAT is under a duty to afford procedural fairness to the parties. Procedural fairness, or the duty to act fairly, applies to courts and tribunals which are empowered to determine matters affecting the rights and interests of a person. Procedural fairness requires that NCAT give the parties a fair hearing, and that it be free from actual or apprehended bias. The term "procedural fairness" is synonymous with natural justice (the latter term is used in s 38(2) of the NCAT Act). Procedural fairness will usually raise a question of law and "conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case": Kioa v West (1985) 159 CLR 550 at 585; [1985] HCA 81.
2. Key aspects of procedural fairness are stated expressly in the NCAT Act. Procedural obligations on NCAT include: affording natural justice (s 38(2)); ensuring the parties to the proceedings understand the nature of the proceedings (s 38(5)(a)); explaining Tribunal procedure to the parties on request (s 38(5)(b)); and ensuring the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings (s 38(5)(c)).
3. As earlier noted, denial of procedural fairness by a decision-maker gives rise to jurisdictional error if it is "material". Materiality in this context refers to a realistic possibility, as distinct from a probability, that the decision could have been different as a matter of reasonable conjecture but for the denial of procedural fairness (see e.g. Nathanson at [33]; MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506; [2021] HCA 17 at [31]-[41], [50]-[53]; Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3 at [45]-[50], [68]-[69]).
4. As the High Court has recently explained in LPDT, in most cases, an error will be jurisdictional if the error was material to the decision that was made in fact, in the sense that there is a realistic possibility that the decision that was made in fact could have been different if the error had not occurred. This is because a statute which contains an express or implied condition to be observed in a decision-making process is ordinarily to be interpreted as incorporating such a "threshold of materiality" in the event of non-compliance: at [7]. In some cases (such as apprehended or actual bias) the error of its very nature will be jurisdictional, irrespective of any effect that the error might or might not have had on the decision that was made: at [6].
5. As the High Court said in its joint judgment in LPDT at [16]: "…unless there is identified a basis on which it can be affirmatively concluded that the outcome would inevitably have been the same had the error not been made, once an [appellant] establishes that there has been an error and demonstrates that there exists a realistic possibility that the outcome of the decision could have been different had that error not been made, the threshold of materiality will have been met… (and curial relief will be justified subject to any issue of utility or discretion)".
6. Where, as here, NCAT made an error by failing to afford the father procedural fairness, all the father needs to show is that the error could have deprived him of the realistic possibility of a different outcome. In Nathanson, Kiefel CJ, Keane and Gleeson JJ in a joint judgment said (footnotes omitted): "[33] There will generally be a realistic possibility that a decision-making process could have resulted in a different outcome if a party was denied an opportunity to present evidence or make submissions on an issue that required consideration. The standard of 'reasonable conjecture' is undemanding. It recognises that a fundamental purpose of affording procedural fairness is to afford an opportunity to raise relevant matters which are not already obvious, or not liable to be advanced by the apparently persuasive "story" of the opposing party. Where a tribunal errs by denying a party a reasonable opportunity to present their case, 'reasonable conjecture' does not require demonstration of how that party might have taken advantage of that lost opportunity ... the standard of 'reasonable conjecture', correctly applied, proceeds on assumptions that are derived from the rationale for procedural fairness, namely that, if given a fair opportunity to present their case, a party will take advantage of that opportunity and that, by doing so, the party could achieve a favourable outcome."

The father's documents not before the Member determining the review

1. It is not in dispute that the following documents emailed by the father to Registry on 29 August 2023 were received but, as a result of an administrative error, were not given to the Member before or at the review hearing: 1. email from the father attaching a document titled "Further information to 2021/00254318 Re Guardianship Application for [the son]", being three pages of typed submissions/evidence; 2. copies of Federal Circuit Court orders dated 22 July 2015 and 19 December 2013; and 3. copies of the son's medical charts, 19 June 2023.
2. The medical charts referred to above were attached to a statement prepared by the mother and were before the Member.
3. For completeness, we note that the father also refers in his submissions to emails he sent to Registry dated 30 September 2023 and 14 November 2023, some containing attachments, which are said to be "missing". There are no records of any email dated 30 September 2023 from the father being received by Registry. The father may have meant to refer to an email he sent to Registry on 30 August 2023, in which he wrote: "Please add the attached list of the contents of [the son's] Primer (medication) to File […] in relation to [the son]." A Registry officer responded to the email informing the father that there was no attachment and requesting that he resend the email. No response was received from the father.
4. On 14 November 2023, the father sent two emails to Registry about the son's behavioural issues at his current accommodation, however these emails are recorded as having been received and placed on NCAT's file. Those emails, with attachments, were before the Member for the hearing and determination of the review.

Respective submissions of the father and the mother

1. The father submits that, because the missing documents were not before the Member determining the review, his submission opposing the mother's appointment as sole guardian and urging NCAT to continue the joint appointment of himself and the mother, or, in the alternative to appoint him as sole guardian, was not fully heard and considered. Material submitted by him was not addressed in the Reasons. The mother's case was fully heard and considered, whereas his case was not.
2. The father contends that the missing documents were (and are) highly relevant and significant to his argument about who should be appointed as guardian. His typewritten three page document contains factual information and submissions about the best interests of his son, relevant to the issues for determination on review. As to the Court orders, the father contends that the Federal Circuit Court had ruled on "a very similar situation", granting equal and shared parenting responsibilities in 2015 (admittedly while the son was a child). The 2013 Federal Circuit Court orders relate to sharing of access to information about the son's treatment. The father submits that he suffered prejudice because the Member did not have the opportunity to consider the contents of the missing documents prior to making the review decision.
3. The father further submitted that the Member would have been prejudiced against him from the outset of the hearing because she did not have his material to read, or had not read his case before the hearing, and the Member only had material from the mother in support of her case for sole guardianship. Further, he says that during the hearing the Member did not ask questions about his case, or did not ask the mother the same questions that he was asked. He says that he perceived that the Member was prejudiced when she walked into the hearing because she had only read one side of the story; the Member did not have all of his information beforehand which would have given her a more complete picture as to who is best placed to make decisions as guardian for his son.
4. The mother contends that the father was not at any disadvantage during the review hearing as he attended the hearing in person and was able to vocalise his case and opinions. She submits that the material in the missing documents had (and has) no relevance to the variation to the guardianship order she sought on her review application. Firstly, some of the material was historical and related to their son as a child and when he was living at home. Some examples in the material are 20 years old. Second, the father had ample time at the hearing to put forward his views, indeed he had had more time than anyone else at the hearing to speak and voice his opinion about his case. Further, the Member spent a lot of time seeking the father's views about who should be appointed guardian.

Consideration

1. Procedural fairness requires that parties have an adequate opportunity to put their case and test the case against them. Moreover, by s 38(5)(c) of the NCAT Act, NCAT is required to take "reasonably practicable" measures "to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings".
2. The Guardianship Division of NCAT employs a procedure by which parties are invited to lodge written material before a review hearing. The father and mother availed themselves of that opportunity. The parties could reasonably have anticipated that NCAT would have regard to that material before making its review decision.
3. At [24] of the Reasons, the Member referred to the written material that was submitted by the parties, recording that the mother submitted "supporting documentation and an Appointed guardian statement", and the father submitted "an Appointed guardian statement and an out-of-date behaviour support plan (11 August 2020)". It is apparent from that reference that the Member did not have before her the written material emailed by the father to Registry on 29 August 2023. That has been confirmed by Registry.
4. A failure by a tribunal to have regard to material lodged by a party before a hearing, will not necessarily mean that that party has been denied procedural fairness. It will depend on the facts of the particular case. As a starting point it will be necessary to consider whether the material NCAT failed to consider contained information that is relevant to an issue that NCAT was required to consider in the proceedings. In addition, it will be necessary to consider whether that material was otherwise available to NCAT, as was the case with the son's medical records, which were attached to a statement prepared by the mother (see [34] above). A further consideration may be whether the party that lodged the material NCAT failed to consider, addressed that material in oral evidence or submissions. These considerations are not exhaustive.
5. In determining whether the procedural unfairness occurred, the types of evidence that will be sufficient for establishing the relevant facts include the Tribunal's record and evidence of the content of the documents that were provided to Registry but not put before the Member. The Tribunal's records confirm that Documents 1 and 2 listed at [34] above were not before the Member assigned to hear and determine the review, and we are satisfied that this is the case. From our perusal of those missing documents, and noting that the mother and father disagree about the significance of the information contained in those documents, it cannot be said that that material has no relevance to the issues for determination on the review, which included whether the father was a suitable person to act as guardian for the son: see Guardianship Act, s 17(1)(c).
6. It is not necessary that the procedural unfairness be the result of intentional conduct. It is enough that it occurred. The Registry failed to follow its usual procedures. Neither the Member nor the father were aware that the Member did not have before her all of the material lodged by the father in support of his case. If that error had not occurred or if the father had been put on notice about the missing documents, he may have sought to tender that material at the review hearing, sought an adjournment with a view to having that material considered by the Member prior to the making of the review decision, or addressed the information contained in the missing documents in oral evidence or submissions. Certainly, the manner in which he might have chosen to conduct his case may have been affected. The father was denied a reasonable opportunity to put his case and to respond to the case put by the mother.
7. In terms of the requirement in s 38(5)(c) of the NCAT Act, we are satisfied that NCAT failed to take "reasonably practicable" measures to ensure that the father had a reasonable opportunity to be heard or otherwise have his submissions considered, prior to the Tribunal below making its decision which appointed the mother as sole guardian for a broad range of guardianship functions. The result was that NCAT failed to fully hear and consider the father's case. We are satisfied that the Tribunal failed to afford procedural fairness to the father.
8. We should add that neither of the parties participating in the appeal hearing provided a transcript of the review hearing. While the mother contends that the father suffered no disadvantage by the failure of the Member to have regard to the missing documents, and that the father had the opportunity to put forward all of his views at the hearing, the mother could not point to the parts of the hearing where he raised all of the same material as contained in the missing documents (and had an opportunity to address the relevance of that material), either by reference to a sound recording or a transcript of the sound recording.
9. It is necessary for the father to demonstrate that the procedural unfairness (the error) could "realistically" have affected the result. It is not for the Appeal Panel to speculate on what the outcome would have been had the error not occurred. It is sufficient that we are satisfied that the denial of procedural fairness deprived the father of the realistic possibility of a different outcome. As the High Court indicated in Nathanson at [33], there will generally be a realistic possibility that a decision-making process could have resulted in a different outcome if a party was denied an opportunity to present evidence or make submissions on an issue that required consideration. A fundamental purpose of affording procedural fairness is to afford an opportunity to raise relevant matters which are not already obvious, or not liable to be advanced by "the apparently persuasive 'story' of the opposing party". Where a tribunal errs by denying a party a reasonable opportunity to present their case, "reasonable conjecture" does not require demonstration of how that party might have taken advantage of that lost opportunity.
10. On the material before us, we are satisfied that there was a realistic possibility of a different result, had NCAT complied with s 38(5) of the NCAT Act and therefore fully heard or otherwise considered the father's case. As a matter of reasonable conjecture, the Member may have been influenced by the submissions or evidence contained in the missing documents so as to arrive at a different decision. This is particularly so, given that NCAT is required to consider a number of decision-making criteria in the Guardianship Act before varying an existing guardianship order (or making an initial guardianship order). Moreover, the Tribunal below may have conducted the hearing differently; it may have asked different questions of the parties and witnesses appearing before it, in determining who should be appointed as guardian and/or the range of the guardianship functions granted in respect of the son.
11. To put it another way, there is nothing in the material before us which provides a basis to consider the outcome would inevitably have been the same had the procedural unfairness not occurred. In sum, the Tribunal's error was material.

Other appeal grounds raised by the father

1. Because we have decided to allow his appeal on the basis outlined above, it is not necessary for us to consider the remaining appeal grounds.
2. Authority dictates that we hear and determine a procedural unfairness challenge prior to any other challenges and that "whenever a matter is remitted for a retrial, it is preferable that the appellate court restrict its assessment of the evidence to matters necessary to the finding of error": Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128; [2016] NSWCA 88 per Basten JA at [11], [13].
3. Insofar as the father seemed to have raised an apprehended bias claim in addition to the procedural fairness issue we have already considered, we have not found it necessary to address any appeal ground based on apprehended or actual bias.

Remittal of review application to Guardianship Division

1. Adopting and applying what is said in Chapman v Nicolosi (No 2) [2023] NSWCATAP 73 at [5]-[26], we consider that in the circumstances of this case the matter should be heard by a differently constituted Tribunal. To avoid any suggestion of pre-judgment by NCAT having previously made various findings on the review, it is in the interests of justice that the review of the 2021 guardianship order be conducted by a differently constituted Tribunal.

Orders

1. We make the following orders: 1. The time for filing the Notice of Appeal is extended to 10 January 2024. 2. The appeal is allowed. 3. The application for review of the guardianship order made on 6 September 2021 (review application) is remitted to a differently constituted Tribunal, with any further evidence in accordance with the directions of the Tribunal. 4. The decision under appeal continues until the review application has been redetermined in accordance with order 3.

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

Amendments 26 June 2024 - Catchwords - Appeal changed to Appeals 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: 26 June 2024