YJC v NSW Trustee and Guardian

Guardianship Act 1987 (NSW), ss 4, 4(a), 4(d), 4(g), 6K(1)(a), 6K(3), 14, 15(3), 16(1)(a), 17, 17(1), 17(1)(b), 18(1), 18(1)(a), 18(1A)(a)-(b), 18(1B)

Interpretation Act 1987 (NSW), s 11

Legal Profession Uniform Law Australian Solicitors' Conduct Rules 2015 (NSW), rr 4.1.2, 19.1

NSW Trustee and Guardian Act 2009 (NSW), ss 39, 73

Powers of Attorney Act 2003 (NSW), ss 36(1)-(2), 36(3A)(b)(i)-(ii), 37(1)

Ability One Financial Management Pty Ltd and Anor v JB by his Tutor AB [2014] NSWSC 245

Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72; (2005) 225 CLR 88

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; [1990] HCA 33

BHP Billiton Ltd v Dunning [2013] NSWCA 421

BHP Billiton Ltd v Dunning [2015] NSWCA 55

C v W [2015] NSWSC 1774

CNY17 v Minister for Immigration and Border Protection [2019] HCA 50; (2019) 268 CLR 76

Collins v Urban [2014] NSWCATAP 17

Commercial Bank of Australia Limited v Amadio (1983) 151 CLR 447; [1983] HCA 14

Da Costa v The Queen [1968] HCA 51; (1968) 118 CLR 186 at 194; [1968] HCA 51

Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 (2003); 77 ALJR 1088

Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337

Ferella v Chief Commissioner of State Revenue [2014] NSWCA 378

Gautam v Health Care Complaints Commission [2021] NSWCA 85

GDR v EKR [2012] NSWSC 1543

Houda v Seraphim [2025] NSWCATAP 135

IR v AR [2015] NSWSC 1187

Isbester v Knox City Council [2015] HCA 20; (2015) 255 CLR 135

Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48

Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390; [2010] HCA 32

Kudrynski v Orange City Council [2024] NSWCA 33

Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427

Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18

New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231

Orr v Cobar Management Pty Ltd [2020] NSWCCA 220

P v NSW Trustee and Guardian [2015] NSWSC 579

QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15

Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33

SAB v SEM & Ors [2013] NSWSC 253

Targeted Property Investments Pty Ltd v Look Up Technologies Pty Ltd (No 2) [2023] NSWSC 416

Thomas and Naaz [2023] NSWCA 40

Tobin v Ezekiel [2012] NSWCA 285

Tudor Capital Australia Pty Limited v Christensen [2017] NSWCA 260

Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204

W v G [2003] NSWSC 1170; (2003) 59 NSWLR 220

Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41, (1994) 181 CLR 41; (1994) 122 ALR 41

Wollondilly Shire Council v Styles [2024] NSWCATAP 104

Woodward v Woodward [2015] NSWSC 1793

YFM v NSW Trustee and Guardian [2003] NSWADTAP 59

YFM v NSW Trustee and Guardian [2023] NSWCATAP 266

YJC v Public Guardian [2024] NSWCATAP 160

ZCP v ZCQ [2016] NSWCATAP 213

ZKF v ZKG [2019] NSWCATAP 64

ZXH v ZXI [2022] NSWCATAP 269

ZXO v Public Guardian [2022] NSWCATAP 260

The publication of the evidence given in these proceedings to the Tribunal is prohibited. This order is made under s 64(1)(c) of the Civil and Administrative Tribunal Act 2013 (NSW).

The publication or broadcast of the name of any party or witness is prohibited. This order is made under s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW).

Note: A reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

1. YJC brings an appeal from several decisions made by the Guardianship Division of the NSW Civil and Administrative Tribunal (NCAT) following a hearing on 10 December 2024. In those proceedings, at the direction of an NCAT Appeal Panel, the Tribunal considered and determined two applications made under the Powers of Attorney Act 2003 (NSW) and the Guardianship Act 1987 (NSW) which had been remitted to the Tribunal for reconsideration.
2. The person the subject of this appeal, YJF (the Mother), is in her earlier nineties and has been diagnosed with dementia. On 18 November 2021, she executed an enduring power of attorney appointing three of her children to act as her attorneys (the 2021 EPoA). On the same day, in a separate instrument the Mother appointed the same children as her enduring guardians (the 2021 EGA).
3. In June 2023, the Mother wrote to two of her children whom she had appointed as her attorneys and enduring guardians, YJC and YJD, and said that she had revoked their respective appointments. As a consequence, the third child, YJE (the Sister) became the Mother's sole enduring guardian and attorney.
4. YJC and YJD challenged the revocation of their appointments and made several applications to NCAT under the Powers of Attorney Act and the Guardianship Act. In October 2023, following a hearing, the Tribunal decided:

(1) to make a financial management order in respect of the Mother and to commit the management of her estate to the NSW Trustee and Guardian (the NSW Trustee);

(2) to dismiss the application made by YJC and YJD to review the revocation of their appointment as the Mother's attorneys; and

(3) to dismiss the application made by YJC and YJD to review the appointment of the Sister as the Mother's enduring guardian.

1. YJC and YJD appealed against each decision. The appeal was allowed in part: YJC v Public Guardian [2024] NSWCATAP 160. The Appeal Panel (the First Appeal Panel):

(1) affirmed the decision to make a financial management order and to commit the management of the Mother's estate to the NSW Trustee;

(2) set aside the decisions of the Tribunal to dismiss the applications seeking review of:

(a) the revocation of the 2021 EPoA, and

(b) the Sister's appointment as the Mother's enduring guardian;

(3) remitted to the Guardianship Division for reconsideration, the applications for review of the revocation of the 2021 EPoA and review of the Sister's appointment as the Mother's enduring guardian (the remitted applications).

1. Following a hearing on 10 December 2024, the Tribunal constituted to reconsider the remitted applications (S Handebo, Principal Member; P Landau, Senior Member (Professional); P Davidson, General Member), made the following orders:

(1) to declare that the Mother did not have capacity to revoke the 2021 EPoA; and

(2) to make a guardianship order for a term of three years and to appoint the Mother's granddaughter, the Sister's daughter (the Granddaughter), as the Mother's guardian.

1. On 7 January 2025, the Tribunal issued written reasons for its decision (the Reasons). YJC (the appellant) appeals from these decisions together with several interlocutory decisions made by the Tribunal.
2. For the reasons that follow, we allowed the appeal in part. We reconsidered one of the decisions made by the Tribunal, to appoint the Granddaughter as guardian, and affirmed that decision. In addition, we declined to give the appellant leave to appeal several challenged interlocutory decisions.
3. These reasons should be read together with YJC v Public Guardian [2024] NSWCATAP 160.

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) (the NCAT Act), ss 65(1)-(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 discussed in these reasons, we will not refer to any of the parties or witnesses by name.
2. For ease of reading, in these reasons we will refer to these people by the following descriptors and not the pseudonyms they have been assigned by the Registrar for the purpose of this appeal:

One of the Mother's sons. Appointed in 2021 by the Mother as enduring guardian and attorney.

Third respondent. The person the subject of the appeal and the person who made the 2021 EPoA and 2021 EGA.

Seventh Respondent. One of the Mother's daughters. Appointed in 2021 by the Mother as her enduring guardian and attorney.

One of the Mother's daughters and the mother of the Granddaughter. Appointed in 2021 by the Mother as enduring guardian and attorney.

Sixth respondent. One of the Mother's granddaughters. The daughter of the Sister. Appointed by the Tribunal as the Mother's guardian in December 2024.

Fourth Respondent. One of the Mother's grandsons. Living with the Mother in December 2024.

The appellants in the First Appeal and the applicants in the remitted applications.

1. The appellant filed written submissions in support of the appeal. Shortly before the hearing of the appeal, he applied for leave to be represented by his son. A differently constituted Appeal Panel refused that request.
2. At the hearing of the appeal, the appellant said that he did not wish to make oral submissions. We said that this caused difficulties because we found parts of his written submissions to be unclear. The appellant said that he was unable to answer any questions about those submissions because while he endorsed them, he did not fully understand them.
3. The Grandson filed submissions opposing the appeal and attended the hearing of the appeal. We have not taken those submissions into account because they largely re-agitated arguments made by the Grandson in the proceedings the subject of this appeal and are of no apparent relevance to the appeal. The Granddaughter also filed submissions opposing the appeal. Because she is not a party to the appeal, we have not considered those submissions.

(1) the decision to appoint the Granddaughter as guardian for the Mother (Decision 1);

(2) the decision to order that the guardianship order made in respect of the Mother be for a period of three years (Decision 2);

(3) the decision to decline to declare that the 2021 EPoA remains valid under s 36(3A)(b)(ii) of the Powers of Attorney Act (Decision 3);

(4) the decision to decline to adjourn the hearing listed on 10 December 2024 (Decision 4);

(5) the decision to decline to "interview ... Mum alone" (Decision 5); and

(6) the purported decision to decline to consider each of the allegations made by the applicants about the conduct of the Solicitor (Decision 6).

1. The appellant has a right to appeal an internally appealable decision on any "question of law" or, with the leave of the Appeal Panel, on any other ground: NCAT Act, s 80(2)(b). Where, as in Decisions 4, 5 and 6, the decision under appeal is in the nature of an interlocutory decision, the appellant requires the leave of the Appeal Panel: NCAT Act, s 80(2)(b).
2. An appellant seeking to appeal "as of right" from an internally appealable decision on a "question of law" must articulate with precision the question of law said to be raised by the appeal: Ferella v Chief Commissioner of State Revenue [2014] NSWCA 378 at [6], [22]; Kudrynski v Orange City Council [2024] NSWCA 33 (Kudrynski) at [48]; Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204 at [25].
3. Question of fact and, generally, mixed questions fact and law do not constitute questions of law: Wollondilly Shire Council v Styles [2024] NSWCATAP 104 at [23]. A question of law does not depend on facts not found by the decision-maker whose decision is the subject of the appeal: Orr v Cobar Management Pty Ltd [2020] NSWCCA 220 at [48], [109].
4. What constitutes a question of law is "vexed and context dependent" in the sense that the distinction between matters of fact and of law may turn on the circumstances in which the question arises: Targeted Property Investments Pty Ltd v Look Up Technologies Pty Ltd (No 2) [2023] NSWSC 416 at [33(4)], citing Thomas and Naaz [2023] NSWCA 40 at [52] and Da Costa v The Queen [1968] HCA 51; (1968) 118 CLR 186 at 194; [1968] HCA 51; Unique Commercial Group Pty Ltd v Cusumano at [37].

1. The appellant contends that the six decisions from which he appeals, together raise 40 questions of law. Those questions as stated by the appellant are reproduced in Annexure A to these reasons.
2. In many of those stated questions it was not possible to discern a question of law, less still a question decided contrary to law. This was because:

(1) Many of the stated questions fail to identify with particularity the question of law said to be raised by the appeal. For example:

(a) in respect of each challenged decision one of the stated questions is "asking the wrong question and/or identifying the wrong issue". However, the question itself does not identify the wrong question/issue the Tribunal is said to have asked/identified; and

(b) in respect of most challenged decisions, one of the stated questions is "arriving at ultimate errors of fact not supported by evidence". However, the question does not identify the purported error of fact.

(2) In some of the stated questions, the appellant makes no, or no intelligible, submissions. For example, by Grounds 14 and 21, the appellant asserts that the finding made by the Tribunal that it was not satisfied that the Mother was induced by dishonesty to revoke the 2021 EPoA, was made without evidence. However, he fails to make any submission in support of that assertion.

1. Adopting the "more generous or benevolent approach" endorsed by the Court of Appeal (Griffiths AJA, Meagher and Kirk JJA agreeing) in Kudrynski at [50], [51], based on the notice of appeal and the submissions in support, we considered whether as a matter of substance, a question of law could be discerned. That task was made difficult because the appellant declined to make oral submissions in support of the appeal. In our view, the more benevolent approach endorsed by the Court of Appeal in Kudrynski does not require that we second guess the question of law that the appellant is endeavouring to raise.
2. In these reasons, we consider in turn each challenged decision and, if possible to discern, state the questions of law identified by the appellant.
3. In addition, the appellant seeks to rely on fresh evidence which he contends warrants the Appeal Panel granting leave to appeal.

1. On 2 October 2024, Principal Member Handebo made several procedural directions, which included what the appellant terms "the cull direction". For consistency we adopt that term. The appellant contends that by that direction, the Tribunal failed to comply with orders made by the First Appeal Panel and failed to take into account "relevant considerations". To understand that contention it is necessary to set out some background facts.

1. As noted above, the First Appeal Panel remitted to the Tribunal for consideration the applications made by the applicants seeking review of the purported revocation of their appointment as attorneys and the Sister's appointment as enduring guardian under the 2021 EGA (the remitted applications): Orders 3, 4.
2. In addition, the First Appeal Panel directed the Tribunal to reconsider each application on the basis of the material that was before the Tribunal at the hearing on 19 October 2023: Orders 5 and 6.
3. The cull direction required the applicants (by 16 October 2024) and the respondents (by 30 October 2024) to file and serve:

"c. With respect to the written material that was before the Tribunal as at 19 October 2023:

i. A paginated bundle of documents containing all documents relied upon for the current Hearing, noting that only those documents that are directly relevant to the legal and factual issues requiring determination by the Tribunal should be included in this bundle of documents, and documents that are not included in this bundle of documents may not be relied upon at Hearing without leave of the Tribunal;"

(emphasis added)

1. The Tribunal later extended the time for complying with these directions. Nothing turns on this.

1. At the hearing on 19 October 2023, the First Tribunal considered the three applications made by the applicants seeking:

(1) review of the 2021 EPoA;

(2) review of the purported revocation of the 2021 EPoA; and

(3) review of the 2021 EGA.

(1) exercised the discretion conferred by s 36(1) of the Powers of Attorney Act to review the 2021 EPoA;

(2) exercised the discretion conferred by s 37(1) of the Powers of Attorney Act to treat the application made by the applicants for review of the 2021 EPoA as an application for a financial management order under the Guardianship Act;

(3) made a financial management order;

(4) committed the management of the Mother's estate to the NSW Trustee;

(5) summarily dismissed the applicants' application seeking review of the purported revocation of the 2021 EPoA; and

(6) summarily dismissed the applicants' application seeking review of the 2021 EGA.

1. In the First Appeal, the applicants did not challenge the first, second and third of the above decisions. Rather they challenged the fourth, fifth and sixth decisions.
2. The First Appeal Panel:

(1) dismissed the appeal from the decision to commit the management of the Mother's estate to the NSW Trustee;

(2) allowed the appeal from the decision to summarily dismiss: (1) the application to review the purported revocation of the 2021 EPoA; and (2) the application to review the 2021 EGA; and

(3) remitted to the Tribunal for reconsideration the applications seeking review of the purported revocation of the 2021 EPoA and the 2021 EGA.

1. Over 2,000 pages of documents were before the First Tribunal, much of which that Tribunal considered to be irrelevant to the applications it was required to decide: Reasons for Decision, NCAT (J McAteer, Senior Member (Legal); J McAuliffe, Senior Member (Professional); and K Clark, (General Member)) 9 October 2023, unrep at [12]. That material included documents that were relevant to the application to review the operation and effect of the 2021 EPoA and the subsequent decision to make a financial management order. Because the First Appeal Panel did not remit that application to the Tribunal for reconsideration, any material, which was before the First Tribunal that was solely relevant to that application, was irrelevant to the remitted applications.
2. The appellant appears to contend that by Orders 5 and 6 the First Appeal Panel required the Tribunal, in reconsidering the remitted applications, to take into account all of the material before the original Tribunal, including material irrelevant to those applications.
3. The evident purpose of the cull direction was to assist the Tribunal to identify from the material that was before the First Tribunal, the material the parties considered to be relevant to the remitted applications. The cull direction gave the parties the opportunity to identify from the voluminous material before the First Tribunal, the material they considered relevant to those applications, and to give that material to the Tribunal and to each other. That direction did not prevent the Tribunal considering material considered by one party to be irrelevant, but not by another.
4. The cull direction was an unremarkable case management tool and entirely consistent with the "guiding principle" the Tribunal to observe, "the just, quick and cheap resolution of the real issues in the proceedings": NCAT Act, s 36(1).
5. The contention that the cull direction was at odds with or in contravention of Orders 4 and 5 made by the First Appeal Panel is rejected.

Decision 1: to appoint the Granddaughter as the Mother's guardian

1. We understand that the questions of law said by the appellant to be raised by this decision are:

(1) Whether in deciding to appoint the Granddaughter as guardian, the Tribunal failed to engage with a "substantial, clearly articulated argument relying on established facts", namely that, the "conditions" proposed by the Granddaughter if the Mother were to come to live with her, demonstrated:

(a) that the Granddaughter was not willing to exercise the functions of the guardianship order; and

(b) that there was an undue conflict between the financial interests of the Granddaughter and those of the Mother (the impugned findings);

(2) whether the finding that the Granddaughter was able to exercise the functions of the guardianship order was made without evidence;

(3) whether the decision to appoint the Granddaughter as guardian "lacked an evident and intelligible justification"; and

(4) whether the decision to appoint the Granddaughter as guardian was vitiated by a reasonable apprehension of bias.

1. We deal with the last of these questions under the heading "procedural fairness grounds".

Decision to appoint the Granddaughter as the Mother's guardian

1. At the hearing on 10 December 2024, at their request, the Tribunal revoked the appointments of each of the three enduring guardians appointed under the 2021 EGA, that is, the applicants and the Sister. The Tribunal proceeded to treat the application for review of the 2021 EGA as an application for a guardianship order, and to exercise the discretion of make a guardianship order: Guardianship Act, ss 6K(1)(a), 6K(3), 14. In that order, the Tribunal appointed the Granddaughter as the Mother's guardian and made the period of that order three years.

Statutory framework and principles: appointment of a guardian

1. Where the Tribunal decides to make a guardianship order, it must appoint a person or persons aged 18 years or more as the guardian of the person under guardianship: Guardianship Act, s 16(1)(a).
2. Where, as here, the Tribunal makes a continuing guardianship order, s 15(3) of the Guardianship Act instructs that the Tribunal must not appoint the Public Guardian where another person can be appointed as the guardian.
3. The Tribunal must not appoint a person as guardian for a person under guardianship unless the Tribunal is satisfied that the proposed guardian meets each of the three criteria in s 17(1) of the Guardianship Act:

17 Guardians

(1) A person shall not be appointed as the guardian of a person under guardianship unless the Tribunal is satisfied that:

(a) the personality of the proposed guardian is generally compatible with that of the person under guardianship,

(b) there is no undue conflict between the interests (particularly, the financial interests) of the proposed guardian and those of the person under guardianship, and

(c) the proposed guardian is both willing and able to exercise the functions conferred or imposed by the proposed guardianship order.

1. Section 4 imposes a duty on anyone exercising functions under the Guardianship Act, including the Tribunal and any appointed guardian, to observe the principles in s 4 of that Act (the section 4 principles):

4 General principles

It is the duty of everyone exercising functions under this Act with respect to persons who have disabilities to observe the following principles:

(a) the welfare and interests of such persons should be given paramount consideration,

(b) the freedom of decision and freedom of action of such persons should be restricted as little as possible,

(c) such persons should be encouraged, as far as possible, to live a normal life in the community,

(d) the views of such persons in relation to the exercise of those functions should be taken into consideration,

(e) the importance of preserving the family relationships and the cultural and linguistic environments of such persons should be recognised,

(f) such persons should be encouraged, as far as possible, to be self-reliant in matters relating to their personal, domestic and financial affairs,

(g) such persons should be protected from neglect, abuse and exploitation,

(h) the community should be encouraged to apply and promote these principles.

Reasons given for appointing the Granddaughter as the Mother's guardian

1. The Granddaughter was the only person to nominate to act as guardian. Her appointment was supported by the Sister and the Grandson and opposed by the applicants. The applicants urged the Tribunal to appoint the NSW Public Guardian.
2. At [213], after setting out the statutory provisions and legal principles which govern the appointment of a guardian, the Tribunal said that it was required "to undertake an assessment of whether [the Granddaughter] meets the requirements under s 17(1) of the Guardianship Act". At [229], after considering those requirements, the Tribunal said it was satisfied that the Granddaughter met each criterion, and therefore it "was precluded from appointing the Public Guardian".
3. At [218]-[220], the Tribunal considered the question of whether there was an undue conflict between the interests of the Granddaughter and the Mother: Guardianship Act, s 17(1)(b). At [218], the Tribunal rejected the applicants' submission that because the Granddaughter was reportedly a beneficiary under the Mother's will, she had "a financial interest which would conflict with her obligations to ensure that the Mother receives necessary and appropriate access to health care and medical treatment". The Tribunal considered that submission lacked a proper evidentiary basis and was "unnecessarily inflammatory and offensive".
4. At [221]-[228], the Tribunal considered whether the Granddaughter was willing and able to exercise the functions conferred by the guardianship order. We consider those reasons below.

Ground 1: Whether the Tribunal failed to engage with a "substantial, clearly articulated argument relying on established facts"

1. The appellant contends that the Tribunal failed to engage with the argument made by the applicants that because of the conditions proposed by the Granddaughter, set out in a letter from the Grandson to NCAT, dated 18 November 2023 (the disputed conditions):

(1) the Granddaughter was unwilling to exercise the functions of the guardianship order; and

(2) this gave rise to an undue conflict between the interests of [the Granddaughter] and those of the Mother.

1. Citing, Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 (2003); 77 ALJR 1088 (Dranichnikov), the appellant contends that the Tribunal failed to engage with the above argument, which was substantial, clearly articulated and relied on established facts.

Failure to respond to a substantial, clearly articulated argument relying upon established facts

1. In Dranichnikov, Gummow and Callinan JJ (with whom Hayne J agreed) held that for a decision-maker "[t]o fail to respond to a substantial, clearly articulated argument relying upon established facts" was both a constructive failure to exercise jurisdiction and a failure to accord natural justice: at [23]-[25].
2. In Gautam v Health Care Complaints Commission [2021] NSWCA 85 at [104], Payne JA (with whom Leeming JA and Simpson AJA agreed) explained that a failure to expressly address an argument or to consider some material, without more, does not constitute legal error. However, a failure to address a "substantial, clearly articulated argument" may amount to a failure to afford procedural fairness and, in some circumstances, a constructive failure to exercise jurisdiction: see Dranichnikov at [24]-[25]. At [105], Payne JA explained that "the ultimate question is whether a failure to consider and address certain issues or arguments involved a failure to address central or critical elements of the case or claim".

1. In December 2024, the Mother was living in her own home with her Grandson, (the family home). The applicants claimed that she was being exploited by the Grandson because he was living in the family home rent free. In addition, they said that contrary to his claim, the Grandson was not providing adequate care and support to the Mother. Further, they claimed that it was not safe for the Mother to remain living in the family home because it was in a state of disrepair, citing in support a report prepared by an architect commissioned by the NSW Trustee in January 2024 (the architect's report). The Sister and the Grandson disagreed and asserted that the Mother was well cared for and that it was her strong wish to remain living in the family home. While they conceded that the home needed some repairs, they claimed that the applicants had overstated the scope and cost of necessary repairs and had exaggerated the risk to the Mother of continuing to live in the family home.
2. On 12 November 2024, the applicants sent an SMS message to the Granddaughter: "we have made a decision to move your grandmother to [your home]". Five days later, the appellant wrote to the Granddaughter announcing that he had decided to move the Mother out of the family home and that if she was not prepared to honour her promise "to look after nan", he would look at nursing home options.
3. In response, in a letter to the Tribunal dated 18 November 2024, the Grandson said that he disagreed with the applicant's assertion that it was unsafe for the Mother to remain living in the family home and asserted that the repairs to the family home recommended in the architect's reports could be undertaken for a modest amount, between $4,300 and $6,000. He went on to say that if contrary to the Mother's wishes, the Tribunal "decided that [the Mother] should live with [the Granddaughter]", then the Granddaughter "would welcome nanna into her home subject to conditions". Those conditions included:

(1) That an Aged Care Assessment Team (ACAT) assessment of the Granddaughter's home be undertaken and that the Mother pay for any required items identified in that assessment to enable her to live safely in the Granddaughter's home;

(2) That if any of the Mother's possessions which she wished to keep did not fit in the Granddaughter's home they be stored in a shed on the Granddaughter's property and the cost of erecting that shed, be borne by the Mother; and

(3) That either the Granddaughter or the Public Guardian be appointed as the Mother's guardian; all disputes and legal actions involving the Mother be withdrawn; that the applicants not be permitted to act as the Mother's attorney or enduring guardian and the Mother's financial affairs continue to be managed by the NSW Trustee.

1. In an email sent 2 December 2024 addressed to the NCAT Registrar and the Principal Solicitor of Legal Aid NSW (the 2 December submission), the applicants raised several concerns about the solicitor appointed by Legal Aid following an order by the Tribunal made under s 45(4) of the NCAT Act, that the Mother be separately represented in the proceedings (the First Separate Representative). The applicants contended that, in a report prepared for the purpose of the proceedings, the First Separate Representative failed to consider several significant issues, including the Granddaughter's suitability to be appointed as guardian given her stated intention to impose the disputed conditions if the Mother were to come to live with her. The applicants argued that those conditions gave rise to a conflict between the interests of the Mother and those of the Granddaughter (the conditions argument).

Tribunal's consideration of the conditions argument

1. As the appellant contends, the Reasons reveal that the Tribunal appears to have assumed that the sole argument advanced by the applicants in support of the contention that there was a conflict between the interests of the Granddaughter and those of the Mother, was the Granddaughter's alleged interest in preserving the Mother's estate because she was reportedly a beneficiary under the Mother's will. At [214], the Tribunal commenced its consideration of whether the Granddaughter met the criteria in s 17(1) of the Guardianship Act, by saying it did not intend to engage with the argument between the parties about the disputed conditions. The Tribunal said that dispute was based on a misunderstanding about its role, which was "to determine who should be appointed as guardian, not who should provide care to [the Mother] or under what conditions". The Tribunal pointed out that, contrary to the understanding of the parties, there is "no requirement for a guardian and a carer to be the same person".
2. The Tribunal did not return to consider the conditions argument.

Was the conditions argument a substantial, clearly articulated argument relying upon established facts?

1. If accepted, the applicants' argument that the disputed conditions demonstrated an undue conflict between the financial interests of the Granddaughter and those of the Mother, it would be dispositive of the question of whether the Granddaughter met the criteria for appointment in s 17(1)(b) of the Guardianship Act. It follows that the conditions argument was a substantial argument.
2. In addition, the conditions argument relied on "established facts". In a letter to NCAT dated 18 November 2024the Grandson said that if the Mother were to come to live with the Granddaughter, she intended to impose the disputed conditions.
3. The more difficult question is whether in the proceedings, the applicants clearly articulated the conditions argument. To answer that question requires consideration of the circumstances in which that argument was made, which include:

(1) In written submissions filed on 17 October 2024 in answer to directions made by the Tribunal on 2 October 2024, the applicants made no mention of whether the Granddaughter met the criteria for appointment in s 17 of the Guardianship Act.

(2) The 2 December submission was a five-page document emailed to NCAT and NSW Legal Aid, headed "our concern about independent representative appointed by NCAT failing to act competently". In that submission the applicants said:

"[THE FIRST SEPARATE REPRESENTATIVE's] FAILURE TO CONSIDER SECTION 17(1) EXCLUDES [THE GRANDDAUGHTER]

29. 18 November 2024 correspondence from Respondent [Grandson] addressed to The Registrar (Guardianship Division), was copied to us and Legal Aid ([the First Separate Representative]).

30. This correspondence lists 8 "conditions" that [the Granddaughter] has apparently advised her Brother (Respondent, the Grandson) MUST be met, for her to 'care' for our Mum. These 'conditions' necessarily exclude [the Granddaughter] as being appointed Guardian, under both subsection (b) and (c). They also fail to comply with section 4 Principles. It is completely unsatisfactory we must tell [the First Separate Representative] this, rather than his supervisor!

31. [The Granddaughter's] "conditions" include proposals to carry out extensive building works on her property (improving its value) to meet the standards of an ACAT Assessment

32. [The Granddaughter's] property in [address omitted] was built in 1940, it contains asbestos, and it was not built to comply with any modern building standards or safety requirements Extensive building costs to meet ACAT assessments exclude [the Granddaughter] under s 17(1)(b).

33. [The Granddaughter] has another 'condition' to build a shed/concrete slab using our Mum's money. In May 2020, [details omitted] - to allow [the Granddaughter] to demolish existing sheds and to rebuild an extensive 3 bay shed, with roller doors.

34. In October 2023 a Google Street view for [address omitted] still shows two vehicles, a caravan & tandem box trailer in the yard AFTER she built new sheds. To confirm this fact, simply view [the Granddaughter's] address provided above, in Google.

35. Our Mother owns no items of monetary or sentimental value she could reasonably wish to take with her to [the Granddaughter's] House - that would require storage in a New Shed - built on a concrete slab - using Mum's money - using tradesmen [the Granddaughter] "approves". But it is fair to say from Google Street View - that [the Granddaughter] could use extra shed space!

36. [The Granddaughter] can inform the Tribunal how much money she spent on her 2020 DA - to build a new three bay shed, on a concrete slab, with roller doors and solar panels

37. [The Granddaughter's] unenforceable 'condition 7' necessarily excludes her under section 17(1)(c). [The Granddaughter] stated she is unwilling to take on the role of Enduring Guardian UNLESS all disputes are resolved, all legal actions withdrawn, or if Applicants remain Guardians or are permitted to act under powers of Attorney, or if the Public Trustee is removed. These conditions are unenforceable & subvert the law and Orders of Appeal Panel!"

(3) During the hearing each applicant repeatedly said that they opposed the Granddaughter being appointed as guardian. However, the only mention made of the disputed conditions was the following statement made by the appellant:

"What we would say is that [the Granddaughter] is excluded from being appointed as enduring guardian under section 17 because she's not clearly willing or able to act as enduring guardian unless multiple conditions are met. She also has a financial conflict of interest in being appointed by NCAT."

Matter of YJF, NCAT 2023/00203653, Sound recording, Part 3, 10 December 2024, 0:06:32

(Our emphasis)

(4) Towards the end of the hearing, the presiding member invited each applicant to make oral submissions about the proposed appointment of the Granddaughter. Referring to their submission "that [the Granddaughter] is not a suitable person to be appointed guardian", the presiding member asked the appellant, "now you've provided written submissions on [that] issue ... is there anything else specifically that you'd like to say?". Later, the presiding member extended the same invitation to Sister 2, "I'm conscious that [the applicants'] written submission may have already covered your view, but is there anything else you would like to share with us". Neither applicant took up that invitation. See, Sound recording, Part 3 0:06: 32.

1. In determining the remitted applications, the Tribunal was faced with the difficult task of identifying from the voluminous material filed by the parties, that which was relevant to the issues it was required to decide. Reflecting what the Tribunal aptly described at [59] as "highly dysfunctional family dynamics", much of that material concerned issues of no, or peripheral, relevance to the remitted applications.
2. That task was further complicated by the fact that shortly before the hearing, the central issue to be determined in relation to the review of the 2021 EGA had pivoted from whether the appointment of the Sister, and/or the applicants as enduring guardians should or should not be confirmed, to whether the Granddaughter met the criteria for appointment as guardian. As a consequence, the material filed about the suitability of the Sister and the applicants to remain as enduring guardians became redundant.
3. As stated in the hearing, the applicants asserted that the appointment of the Granddaughter would give rise to a "conflict of interest" but failed to articulate the basis for that assertion. Nonetheless, given that the Tribunal said that it had read the applicants' submission, their failure to elaborate on the conditions argument in oral submissions cannot be said to indicate that they had abandoned that argument.
4. In the 2 December submission, the applicants said that the disputed conditions gave rise to a conflict between the Granddaughter's interests and those of the Mother. They reasoned that if, as proposed by the Granddaughter, the Mother were required to bear the costs of repairing the Granddaughter's house to meet "ACAT standards" and of constructing a shed on the Granddaughter's property to store the Mother's possessions, this would increase the value of the Granddaughter's property and give rise to a conflict between her financial interests and those of the Mother.
5. The conditions argument contained in the 2 December submission was misconceived in part, but nonetheless it was clearly articulated. However, that argument was contained in a document which, as its heading suggests - "our concern about independent representative appointed by NCAT failing to act competently" - was unrelated to the Granddaughter's suitability to act as guardian. Can it therefore be said that the conditions argument was "clearly articulated" in the Dranichnikov sense?
6. The obligation to consider a party's submissions, in our view, does not require the Tribunal to ferret through material filed by a party of no apparent relevance. Regrettably, in the Guardianship Division it is not uncommon for parties, who are in the main self-represented, to file material which is irrelevant to the factual and legal issues that the Tribunal must determine. In addition, it is not uncommon for the Division to be copied into correspondence between parties and between parties and third parties, which is unrelated to those issues.
7. Despite its unhelpful heading, for the following reasons the Tribunal was obliged to consider the conditions argument contained in the 2 December submission. First, while not determinative, that document was listed in a table headed "Documents lodged for the hearing" contained in a hearing report prepared by a NCAT registry officer and provided to all parties. Second, and more significantly, the Tribunal acknowledged that the applicants made written submissions about the Granddaughter's suitability to act as guardian and said that it would consider those submissions. It can be inferred that the Tribunal was referring to the 2 December submission and that the applicants understood that to be the case because that document appears to be the only document filed by the applicants in which they addressed the question of the Granddaughter's suitability to act as guardian.
8. The conditions argument was a substantial, clearly articulated argument relying upon established facts, that the Tribunal was obliged to, but failed to consider.
9. This ground of appeal is established.
10. We reconsider below the decision to appoint the Granddaughter as guardian, specifically whether we can be satisfied that there is no undue conflict between the interests (particularly, the financial interests) of the Granddaughter and those of the Mother.

Was the condition argument a "substantial, clearly articulated argument based on established facts" in relation to the question of whether the Granddaughter was willing to act as guardian?

1. In the 2 December submission, referring to the disputed conditions, the applicants argued that "unenforceable condition 7" demonstrates that the Granddaughter is "unwilling to take on the role of guardian". Referred to at [57](4) above, that condition was to the effect that the applicants not continue as the Mother's enduring guardians and the NSW Trustee continue to manage the Mother's financial affairs.
2. At [214], the Tribunal said, in effect, that the applicants' argument was misconceived because they had conflated the roles of carer and guardian, and, in addition, misunderstand the role of Tribunal: "to determine who should be appointed as guardian, not who should provide care to [the Mother] or under what conditions". The Tribunal pointed out that "there is no requirement for a guardian and a carer to be the same person", and went on to say that any dispute concerning the conditions proposed by the Granddaughter "to provide daily care to [the Mother] in her home are of little import to the Tribunal's determination as to whether [the Granddaughter] is a suitable person to be appointed as [the Mother's] guardian".
3. As the appellant points out, the Tribunal did not address the submissions made by the applicants about "unenforceable condition 7". At the hearing, the applicants announced they wished to resign as the Mother's enduring guardians. Neither they nor any other party suggested that the appointment of NSW Trustee be revoked. It follows that the question of whether condition 7 demonstrated that the Granddaughter was unwilling to act as the Mother's guardian did not arise for consideration. Dranichnikov is not authority for the proposition that a decision-maker is obliged to consider a submission about an issue which is, or has become, irrelevant to the issues it is required to decide.
4. This ground must fail.

Grounds 2 and 3: whether the finding that the Granddaughter was able and willing to exercise the functions of the guardianship order was made without evidence and "lacked an evident and intelligible justification".

1. Grounds 2 and 3 overlap and we deal with them together.
2. The appellant contends that the finding made by the Tribunal that the Granddaughter was able to act as guardian was made without evidence. In addition, he contends that that finding was legally unreasonable because it lacked "an evident and intelligible justification", citing Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 at [75], [76].

1. A tribunal of fact which makes a finding of fact or draws an inference where there is a complete absence of evidence makes an error of law: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; [1990] HCA 33 (Bond) at 356 (Mason CJ); Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390; [2010] HCA 32 at [91] (Hayne, Heydon, Crennan and Kiefel JJ).
2. In Bond, Mason CJ noted at [88]-[89] that there was "no error of law simply in making a wrong finding of fact" and "want of logic is not synonymous with error of law". The Chief Justice continued:

"So long as there is some basis for an inference - in other words, the particular inference is reasonably open - even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place."

1. A conclusion that there was some evidence capable of supporting a particular finding of fact requires that there be a rational connection between particular evidence and that finding: BHP Billiton Ltd v Dunning [2015] NSWCA 55 at [35]- [43]; Tudor Capital Australia Pty Limited v Christensen [2017] NSWCA 260 at [300].

Reasons for finding that the Granddaughter was able to exercise the functions conferred by the guardianship order

1. At [221]-[228], the Tribunal considered the question of whether the Granddaughter was willing and able to exercise the functions conferred by the guardianship order, accommodation, authority to authorise others to take, keep and return the Mother to a place approved by the guardian, health care, services, and, if she lacked capacity to do so, to consent to medical and dental consent on behalf of the Mother.
2. At [223], the Tribunal recorded that it raised with the Granddaughter its concerns that given the "fractious nature" of the relationships within the Mother's family, whether she would be able to "independently exercise the necessary functions, rather than acting as a proxy for the views of her mother and brother". The Tribunal noted that the Granddaughter claimed that while she recognised the need to consult, she "would make decisions that she considers to be in [the Mother's] best interests even if such decisions are inconsistent with the views of other close family members".
3. At [223], the Tribunal recorded that it also raised with the Granddaughter whether she would be willing to consult with the applicants about "any major long-term decisions to be made" in relation to the Mother. The Tribunal noted that the Granddaughter said that she would consult "with the caveat that she would not expect to be abused or harassed [by the applicants] whilst undertaking this role". The Tribunal said it took this to mean that the Granddaughter would be "willing to consult with [the applicants] provided that they are prepared to engage with her civilly and respectfully".
4. At [224], the Tribunal said that given that the Granddaughter is a registered nurse with a background in aged care it could "have some confidence that [the Granddaughter] has an appreciation of the nature of the decisions she would be required to make" and have an understanding of "the aged care sector and medical interventions required for elderly Australians".
5. At [226], the Tribunal referred to the examples given by the applicants of "difficulties in communicating with [the Granddaughter]". At [227], the Tribunal noted that "family conflict" of itself is "not a sufficient reason to decline to appoint a person as guardian who is otherwise suitable", but it may be relevant in evaluating whether the proposed guardian is "willing and able" to exercise the functions of their appointment.
6. At [228], the Tribunal said that the Mother's family is "embroiled in conflict" and that the appointment of a guardian "will be unlikely to change this situation". The Tribunal found that the Granddaughter "is well aware of the nature and the extent of the conflict", and "notwithstanding the difficulties she may face in navigating the family conflict" has nominated to act as guardian. The Tribunal found that the Granddaughter had insight and presented as "open and forthright". The Tribunal said it was "confident that [the Granddaughter] can undertake the responsibilities of guardianship notwithstanding the conflict".

1. To appoint the Granddaughter as guardian, the Tribunal was required to be satisfied that she "is both willing and able" to exercise the functions conferred by the guardianship order. To do so required the Tribunal to make an evaluative judgement and consider not only whether the Granddaughter possessed the necessary skill and experience to be able to exercise the functions conferred by the guardianship order, but also whether she would be able to do so in a manner consistent with the statutory duty imposed by s 4 of the Guardianship Act: W v G [2003] NSWSC 1170; (2003) 59 NSWLR 220 at [25] (Windeyer J); IR v AR [2015] NSWSC 1187 at [36] (Lindsay J); ZKF v ZKG [2019] NSWCATAP 64 at [34].
2. The Tribunal found that the Granddaughter had insight into the challenges posed in carrying out the role of guardian in those circumstances. The Tribunal accepted the Granddaughter's claim that she understood that as guardian she would be obliged to act in the Mother's best interests, and, in making major decisions on behalf of the Mother she would consult with but not act as proxy for the Sister and the Grandson. In addition, the Tribunal accepted her claim that in making such decisions she would consult with the applicants, providing that they were prepared to engage with her "civilly and respectfully".
3. The Tribunal found the Granddaughter's qualification as a registered nurse with a background in aged care gave her an appreciation of the type of decisions that she may be required to make on behalf of the Mother.
4. The above findings were the basis for the ultimate finding reached by the Tribunal that, notwithstanding the challenges posed by the family conflict, the Granddaughter was willing and able to exercise the functions conferred by the guardianship order in a manner which conformed with the obligation to give paramount consideration to the welfare and interests of the Mother. Those findings were largely based on evidence given by the Granddaughter. However, it does not follow, as we understand the appellant to contend, that there was no probative evidence to support those findings. The Tribunal had the opportunity to observe the Granddaughter give evidence and to assess the reliability of that evidence.
5. The finding that Granddaughter was willing and able to exercise the functions conferred by the guardianship order was a finding reasonably open to the Tribunal. The contention that there was no evidence capable of supporting that finding is, in truth, an expression of disagreement with that finding.
6. For largely the same reasons, we reject the argument that the finding lacked "an evident and intelligible justification". The Tribunal identified the evidence on which that finding was made. The reasoning path which led it to make that finding is apparent from the Reasons.
7. Each ground must be rejected.

Decision 2: to make the Guardianship order for a term of three years

1. We understand the questions of law said by the appellant to be raised by this decision to be:

(1) whether the decision to make the guardianship order for a period of three years lacked an evident and intelligible justification;

(2) whether the Tribunal failed to give adequate reasons for its decision to make the guardianship order for a period of three years; and

(3) whether the Tribunal departed from the principle said to established by ZCP v ZCQ [2016] NSWCATAP 213.

Term of an initial guardianship order: statutory provisions

1. Where, as here, the Tribunal makes an initial continuing guardianship order, that order has effect "for such period (not exceeding 1 year from the date when it was made) as the Tribunal may specify in the order": Guardianship Act, s 18(1)(a). Despite the requirement stated in s 18(1)(a), that an initial guardianship order be made for a period not exceeding one year, the Tribunal may make an initial continuing guardianship order for a period of up to three years, but only if satisfied that (a) the person the subject of the order has permanent disabilities, (b) it is unlikely that the person will become capable of managing his or her person, and (c) there is a need for an order of longer duration than 12 months: Guardianship Act, ss 18(1A)(a), 18(1B).

Legal principles: obligation to give adequate reasons

1. The Tribunal was required to give all parties a written statement of reasons for any decision it made, except, an ancillary or interlocutory decision: NCAT Act, Sch 5, cls 11(1), 11(2)(c). The Tribunal was required to include in that statement the matters referred to in s 62(3) of the NCAT Act: Sch 6, cl 11(3).
2. Section 62(3) of the NCAT Act states that a written statement of reasons must set out the following: (a) the findings on material questions of fact, referring to the evidence or other material on which those findings were based, (b) the Tribunal's understanding of the applicable law, and (c) the reasoning processes that led the Tribunal to the conclusions it made.
3. In New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231 (Orr), Bell P (as the Chief Justice then was), in considering the nature of the Tribunal's obligation to give reasons, said at [66] that the function of an appeal court in the context of appellate review is "to determine not the optimal level of detail required in reasons for a decision but rather the minimum acceptable standard", citing Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 at [48]. Referring to the statement made by Basten JA in Resource Pacific Pty Ltd v Wilkinson at [48] that "[t]ransparency in decision-making is an important value, but it is not cost free, and may involve separate parameters of quantity and quality", Bell P said at [67] the "identification of separate parameters of quantity and quality is, with respect, a useful one".
4. At [70], Bell P went on to state that the "sheer volume of work undertaken by tribunals is such that a perhaps more relaxed standard of review of reasons with corresponding compensation for linguistic infelicities is appropriate than may be the case when an appellate court is hearing an appeal from another court". Bell P, however, acknowledged that there are "certain minimum characteristics that a Tribunal's reasons must possess" which, in relation to NCAT, are supplied by s 62(3) of the NCAT Act. He stated at [72] that while s 62(3) of the NCAT Act provides a "useful starting point, it still leaves for consideration the question as to the quality and detail of the reasoning process that must be exposed".

Adequate reasons for decision to make the guardianship order for a period of three years

1. The appellant contends that the Tribunal failed to give "any adequate reasons" for:

(1) departing from the "usual course" said to be established by ZCP v ZCQ of not making an initial guardianship order for more than 12 months; and

(2) finding that it was in the Mother's interests to make a guardianship order for a period of three years in circumstances where the applicants and multiple family members had expressed concerns about the Granddaughter being appointed as guardian.

1. At [232], the Tribunal said it was satisfied that the pre-conditions to exercising the discretion to make an initial guardianship order for a period exceeding 12 months were established and gave these reasons for exercising that discretion:

(1) given the ongoing litigation and conflict in this matter, it would not be in the Mother's interests for the order to be reviewed earlier [than three years]; and

(2) should the need arise, an earlier review of the guardianship order may be requested by an interested party.

1. The reasons for making an initial order for a period exceeding 12 months were brief but adequate. The reasoning path which led the Tribunal to exercise the discretion to make the initial guardianship order for a term exceeding 12 months is apparent.
2. As to the argument that the decision lacked an intelligible justification because family members held concerns about the proposed appointment of the Granddaughter, it is to be recalled that the Tribunal did not share those concerns and found that the Granddaughter was able to exercise the functions conferred by the guardianship order in a manner which conformed with the section 4 principles.

1. The appellant contends that ZCP v ZCQ is authority for the proposition that in deciding the period of a guardianship order, the Tribunal must "follow the 'normal course' of a one-year review". In support, the appellant cites the following passage from ZCP v ZCQ:

"[50] [A]s is usual in the early period of operation of protective orders, there has been a first hearing followed a year later by a review hearing. The Tribunal includes expert membership in the field of disability services. The members have special knowledge of the nature of specific disabilities, and their likelihood of continuation. The Tribunal is well placed to form a view on whether after the first review the next review period should move from one year to a longer period. This is a discretionary judgment. Nothing was put to us to suggest that any irrelevant considerations were brought to bear on that judgment."

1. ZCP v ZCQ concerned an appeal from a decision to renew a guardianship order, not, as in the decision under appeal a decision to make an initial guardianship order. However, nothing turns on this because while the Guardianship Act specifies different maximum periods for making initial and renewed guardianship orders, the governing provisions are the same. The starting point is that the Tribunal may make an initial guardianship order for "a period not exceeding 12 months"; and a renewed guardianship order for "a period not exceeding three years". If satisfied of the matters set out in s 18(1B) of the Guardianship Act - that the person the subject of the order has permanent disabilities, it is unlikely they will become capable of managing their person, and there is a need for an order of longer than 12 months (initial guardianship order), 36 months (renewed guardianship order) - the Tribunal may exercise the discretion to make an initial guardianship order for a period not exceeding three years (s 18(1A)(a) of that Act); and a renewed guardianship order for a period not exceeding five years (s 18(1A)(b) of that Act).
2. In ZCP v ZCQ after referring to members of the Tribunal having specialist expertise in the field of disability, the Appeal Panel said that the Tribunal "is well placed to form a view on whether after the first review the next review period should move from one year to a longer period". Contrary to the appellant's assertion the Appeal Panel did not say that a Tribunal cannot make a renewed (or initial) guardianship order for a period not exceeding the period specified in s 18(1) of the Guardianship Act. Rather the Appeal Panel said that to do so involves "a discretionary judgment".

1. None of the grounds raised by the appellant in relation to Decision 2 are established.

Decision 3: to decline to declare the 2021 EPOA remains valid under s 36(3A)(b)(ii) of the Powers of Attorney Act

1. We understand the questions of law said by the appellant to be raised by this decision are:

(1) Whether, by the cull direction the Tribunal failed as required by s 38(6) of the NCAT Act to ensure "as far as practicable, that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue in the proceedings;

(2) Whether the finding made by the Tribunal that it was not satisfied that the Mother was induced to revoke the 2021 EPoA by undue influence, was made without evidence;

(3) Whether in considering whether the Mother was induced to revoke the 2021 EPoA by the Sister's alleged dishonesty and/or alleged breach of her fiduciary duties, the Tribunal failed to engage with a "substantial, clearly articulated argument relying on established facts".

Revocation of power of attorney: statutory provisions

1. Section 36(2) of the Power of Attorney Act states that, where on the application of an "interested person" a review Tribunal (NSW Supreme Court and NCAT) has reviewed the revocation of a power of attorney, it may decide to make an order under s 36(3A) of that Act:

36 Interested persons may apply for review

...

(3A) Orders relating to revocation of power of attorney A review tribunal may make either or both of the following orders with respect to the revocation of a power of attorney -

(a) an order declaring that the principal did or did not have mental capacity to revoke a power of attorney,

(b) an order declaring that the power of attorney remains valid (either in whole or in part) if the tribunal is satisfied -

(i) the principal did not have the capacity necessary to revoke it, or

(ii) the revocation is invalid for any other reason, for example, the principal was induced to make the revocation by dishonesty or undue influence.

The decision to decline to declare the 2021 EPoA remains valid under s 36(3A)(b)(ii) of the Powers of Attorney Act

1. The Tribunal found that in June 2023 the Mother did not have mental capacity to revoke the 2021 EPoA and declared under s 36(3A)(b)(i) of the Powers of Attorney Act that the 2021 EPoA remained valid: at [131].
2. Having made that declaration, the Tribunal went on to consider the applicants' alternative argument that "the 2023 Revocation was [also] brought about as a consequence of undue influence and/or dishonesty and/or a breach of fiduciary duties". The Tribunal concluded that it could not be so satisfied and declined to make a declaration under s 36(3A)(b)(ii) of the Powers of Attorney Act.
3. The appellant does not challenge the Tribunal's decision to declare under s 36(3A)(a) of the Powers of Attorney Act that the 2021 EPoA remained valid because the Mother did not have mental capacity to revoke that instrument. Rather he appeals from the Tribunal's decision to decline to declare that the 2021 EPoA remains valid on the ground that the Mother was induced to revoke that appointment by "undue influence, dishonesty and/or a breach of fiduciary duties".

Whether by the cull direction the Tribunal failed to comply with s 38(6) of the NCAT Act

1. The appellant contends that as a consequence of the cull direction, the Tribunal failed to have regard to the affidavits prepared by the Grandson (9 October 2023) and the Sister (14 August 2023), which had been tendered in the proceedings before the First Tribunal. In support, he points to the finding made by the Tribunal at [144] that "by the time [the Mother] travelled to Sydney to meet with [the Solicitor] in person she had already executed the 2023 revocation". He contends that this finding demonstrates that the Tribunal failed to have regard to the affidavits prepared by the Grandson and the Sister. That finding was made in the context of the Tribunal considering the applicants' claim that the Mother was induced to revoke their appointments as attorneys by undue influence exercised by the Sister: at [135]-[145].
2. There are several difficulties with the appellant's submission. However, the short answer is that while the Grandson and the Sister said in their respective affidavits that they accompanied the Mother to Sydney in June 2023 to meet with the Solicitor, a fact which is not in dispute, neither made any mention of whether before doing so, the Mother had or had not met with the Solicitor or had or had revoked the 2021 EPoA. The impugned finding does not demonstrate that the Tribunal failed to have regard to the affidavits prepared by the Sister and the Grandson, less still that the Tribunal failed to comply with the obligation imposed by s 38(6) of the NCAT Act "to ensure, as far as practicable, that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue in any proceedings.
3. This ground of appeal is rejected.

Whether the finding made by the Tribunal that it was not satisfied that the Mother was induced to revoke the 2021 EPoA by undue influence was made without evidence

1. At [135]-[145], the Tribunal summarised the principles which govern the doctrine of undue influence, citing the oft-quoted statement of Mason J in Commercial Bank of Australia Limited v Amadio (1983) 151 CLR 447; [1983] HCA 14 at [2], that undue influence arises where "the will of the innocent party is not independent and voluntary because it is overborne".
2. At [142], the Tribunal found that since at least late 2021, the Mother had consistently told solicitors, medical practitioners, the Tribunal and others that she intended to remove the applicants from the management of her financial affairs.
3. The Tribunal accepted that it was possible that the Mother, "may have been influenced by others and/or coached in forming her views". However, citing Tobin v Ezekiel [2012] NSWCA 285, the Tribunal said that the doctrine of undue influence "is not concerned with the process by which [the Mother's] views are formed, but rather whether [the Mother's] own free will in executing the instrument was overborne to the extent that it cannot be said that the instrument reflects her intentions": at [143].
4. The Tribunal went on to consider whether as submitted by the applicants, the circumstances surrounding the meeting between the Mother and the Solicitor in Sydney in June 2023 demonstrated that in revoking their respective appointments as attorneys, the Mother had been subject to undue influence. At [144], the Tribunal summarised that submission: "[The Sister's] act of removing Mum from familiar surrounds of her home (suffering from dementia, double incontinence and crippling arthritic pain) - then forcibly placing our Mum in a car - then driving Mum to Sydney & putting her in a room alone with [the Solicitor] is undue influence!" (emphasis in original). The Tribunal rejected that submission, finding that by the time the Mother travelled to Sydney to meet with the Solicitor she had already instructed the Solicitor by video conference to revoke the appointment of the applicants as attorney. The Tribunal said it based that finding on the oral evidence given by the Solicitor.

1. The appellant contends that there was no evidence to support the finding that the Mother had instructed the Solicitor to revoke their respective appointments as attorney before she met with him in person in Sydney. In support, he argues that:

(1) that finding is contradicted by the affidavits prepared by the Sister and the Grandson, referred to above; and

(2) the Solicitor gave inconsistent oral evidence about when he first received instructions from the Mother.

1. The Solicitor prepared an affidavit for the purpose of the proceedings before the Tribunal and gave oral evidence by telephone. In oral evidence, he conceded that his recollection of the timeline about taking instructions from the Mother about revoking the appointment of the applicants as attorneys was poor. In oral evidence, he said initially that he first spoke to the Mother by telephone and met with her in person about a week later. Later, after referring to his affidavit, the Solicitor said that he was mistaken: his first meeting with the Mother was by video conference. Towards the end of his oral evidence, the Presiding Member put to the Solicitor his understanding of the Solicitor's claims about the timeline: "the instructions for the revocation were taken via video conference, the documents for the revocation were prepared ... and then the face to face meeting took place after, after the revocation had already been executed and sent". The Solicitor agreed that was a correct summary of his evidence.
2. Given the inconsistencies in the Solicitor's oral evidence, together with his candid admission that his recollection of the timeline was poor, it was open to the Tribunal not to accept the Solicitor's claim that the Mother had revoked the applicants' appointment as attorney before travelling to Sydney in June 2023. Nonetheless, despite those shortcomings the finding that the Mother had revoked the 2021 EPoA before travelling to Sydney to meet with the Solicitor was reasonably open to the Tribunal.
3. The Reasons reveal that in considering the Mother's decision to revoke the applicants' appointment, the Tribunal considered significant the evidence that since 2021, the Mother had told various people that she intended to remove the applicants from the management of her financial affairs. The appellant does not challenge that evidence.
4. In substance the appellant contends that the undue influence finding was against the weight of evidence, not made without evidence. This ground must be rejected.

Whether the Tribunal failed to engage with a "substantial, clearly articulated argument relying on established facts" that the Mother was induced to revoke the applicants' appointment as attorney because of the Sister's dishonesty

1. The appellant contends that the Tribunal failed to engage with the applicants' argument that the Mother was induced to revoke their appointment as attorneys by the Sister's dishonesty. He argues that the Tribunal mischaracterised or failed to deal with that argument and, in support, points to the statement made by the Tribunal at [146]:

"[The applicants] also assert that the 2023 Revocation was procured by way of dishonesty. Although they have used the term 'dishonesty' their submissions may be more appropriately characterised as allegations of 'unconscionable conduct'."

1. The dishonesty argument said by the appellant to have been advanced in the proceedings relates to the instrument executed by the Mother in 2021, appointing the Sister as one of her attorneys. In that instrument, the Sister's signature appears immediately below the following pro-forma statement:

"I accept that I must always act in the principal's best interests ... I accept that I must act honestly in all matters concerning the principal's legal and financial affairs."

(See paragraph 8, Prescribed forms for power of attorney, Sch 2 to Powers of Attorney Regulation 2024 (NSW)).

1. The appellant claims that by signing that instrument and undertaking to act in the Mother's best interests and to act honestly in the exercise of her authority as attorney, the Sister knowingly made an untruthful statement. In addition, we understand the appellant to contend that the Mother was induced to revoke the appointment of the applicants by that statement.
2. There are several difficulties with this ground. Critically, the premise on which it is based is not established: that the applicants had clearly articulated the dishonesty argument in the proceedings before the Tribunal. The appellant has failed to identify any submission made in the proceedings where that argument was made or adverted to. He appears to contend that because the instrument appointing the Sister as attorney was in evidence in the proceedings, he had squarely raised the dishonesty argument. We disagree.

1. We reject each of the grounds raised by the appellant in relation to Decision 3.

Procedural fairness grounds: apprehension of bias

1. The appellant contends that the following conduct of, and decisions made by, the Tribunal give rise to a reasonable apprehension of bias:

(1) the decision to appoint the Granddaughter as guardian;

(2) the cull direction;

(3) the decision to decline to adjourn the hearing on 10 December 2024;

(4) the failure to address the conditions argument;

(5) the failure to criticise the conduct of the First Separate Representative and Second Separate Representative;

(6) the alleged failure to control the hearing by permitting the Grandson to give evidence consisting of "fabricated and antagonistic lies".

1. The Tribunal was obliged to afford each party procedural fairness: NCAT Act, 38(2). That obligation required the Tribunal to determine the remitted applications without bias or the appearance of bias.
2. The test for apprehended bias, the so-called "double-might test", was stated by the High Court in Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 (Ebner) at [6]: whether "a fair-minded lay observer might reasonably apprehend that the [decision-maker] might not bring an impartial mind to the resolution of the question the [decision-maker] is required to decide": CNY17 v Minister for Immigration and Border Protection [2019] HCA 50; (2019) 268 CLR 76; (CNY17) at [56]; Isbester v Knox City Council [2015] HCA 20; (2015) 255 CLR 135 (Isbester) at [20]; QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15 (QYFM) at [37].
3. A finding of apprehended bias is not to be reached lightly: Ebner at [344; Isbester at [20].
4. The double-might test is objective. It is concerned with "possibility (real and not remote), not probability": Ebner at [7]; QYFM at [37].
5. In Isbester, Gageler J (as the Chief Justice then was) said at [59] that the determination of an allegation of apprehended bias involves "three analytical steps":

(1) identification of the factor which it is hypothesised might cause a question to be resolved otherwise than as the result of a neutral evaluation of the merits;

(2) articulation of how the identified factor might cause that deviation from a neutral evaluation of the merits; and

(3) consideration of the reasonableness of the apprehension of that deviation being caused by that factor in that way.

1. In applying that test, "it is necessary to consider ... the legal, statutory and factual contexts in which the decision is made": Isbester at [20]; CNY17 at [58], [70]; QYFM at [59], [72]. In addition, it is necessary to consider "what is involved in making the decision and the identity of the decision‑maker": Isbester at [20]. While not a lawyer and not assumed to have a detailed knowledge of the law, nonetheless the hypothetical observer is taken to be aware of the nature of the decision, the context in which it was made and to have knowledge of the circumstances leading to the decision: Isbester at [23]; CNY at [58]. The hypothetical observer has "a broad knowledge of the material objective facts ... as distinct from a detailed knowledge of the law or knowledge of the character or ability of the [decision-maker]": Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41, (1994) 181 CLR 41; (1994) 122 ALR 41 at 73; CNY17 at [58].
2. Being "fair-minded", the observer "is neither complacent nor unduly sensitive or suspicious": Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48 at [53]; QYFM at [47].
3. The rule against bias is a principle of procedural fairness, and "principles of procedural fairness focus upon procedures rather than outcomes": Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72; (2005) 225 CLR 88 at [16]; CNY17 at [68]. The rule is designed to ensure that the process is, and appears to a fair-minded lay observer to be, a fair process: CNY17 at [68].
4. Commenting on whether reasons for judgment might "confirm, enhance or diminish the existence of a reasonable apprehension of bias", in Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427, the High Court said at [67], that that approach "runs at least a serious risk of inverting the proper order of inquiry (by first assuming the existence of a reasonable apprehension)". The High Court went on to say:

"Inquiring whether there has been 'the crystallisation of that apprehension in a demonstration of actual prejudgment' impermissibly confuses the different inquiries that the two different allegations (actual bias and apprehended bias) require to be made. And, no less fundamentally, an inquiry of either kind moves perilously close to the fallacious argument that because one side lost the litigation the judge was biased, or the equally fallacious argument that making some appealable error, whether by not dealing with all of the losing side's arguments or otherwise, demonstrates prejudgment." (citations omitted)

Knowledge to be attributed to the hypothetical observer

1. The appellant urges us to attribute to the hypothetical observer knowledge of several matters which include:

(1) that the Granddaughter lied to a cousin "in a nasty manipulative way";

(2) that in December 2021, the Granddaughter assisted the Sister to take the Mother to Centrelink to remove the applicants as the Mother's Centrelink nominees;

(3) that the Grandson is "viewed with great suspicion, contempt and fear and is reviled by the majority of his Family"; and

(4) that the Grandson is considered by a "majority of his family to be a lazy, scheming manipulative person".

1. These matters in the main are opinions held by appellant about the character and motivation of the Grandson and other family members. They are neither material objective facts nor matters which have been the subject of findings made by the Tribunal. They are not matters which can be attributed to the knowledge of the hypothetical observer.
2. In addition to the matters listed at [137] above, in our view the hypothetical observer would:

(1) have a broad understanding of the relevant statutory provisions which govern the Tribunal's powers to determine the remitted applications, including to appoint a guardian;

(2) have a broad understanding of the background to the remitted applications and each impugned decision;

(3) know that where there is conflicting evidence, the role of the Tribunal is to make findings based on that evidence;

(4) understand that where the Tribunal prefers evidence adduced by one party over that of another, that does not necessarily demonstrate that the Tribunal was biased in favour of the former;

(5) be aware that there were conflicting views about whether the Granddaughter was a suitable person to appoint as guardian; and

(6) know that in considering one of the criteria for appointment as guardian - whether there was an undue conflict between the interests of the Granddaughter and those of the Mother - the Tribunal was required but failed to consider a substantial argument advanced by the applicants.

The decisions to appoint the Granddaughter as guardian, to make the cull direction and to decline to grant an adjournment

1. The appellant contends that the hypothetical observer might reasonably apprehend that the Tribunal might have made each of these decisions other than on its merits. He appears to contend that the hypothetical observer would reach that conclusion because they would share his opinion that each decision was "manifestly unreasonable".
2. In Michael Wilson & Partners Ltd v Nicholls the High Court said at [67] that relying on a decision made to establish a claim of apprehended bias potentially conflates actual and apprehended bias and "moves perilously close to the fallacious argument that because one side lost the litigation the judge was biased".
3. With respect to the decision to appoint the Granddaughter as guardian, the hypothetical observer would know that there was conflicting evidence before the Tribunal about her suitability to act as guardian. The hypothetical observer would know that even in a protective jurisdiction, some parties are, or perceive that they are, "winners" or "losers". We reject the argument that because the Tribunal largely accepted the evidence given by the Granddaughter, the hypothetical observer might reasonably apprehend that the decision to appoint the Granddaughter was made other than on its merits.
4. With respect to the claim that the cull decision gives rise to a reasonable apprehension of bias, the premise on which that claim is based - that the cull decision constituted an error of law - is not established.
5. For convenience we address below the claim that the adjournment decision gives rise to a reasonable apprehension of bias, together with the other challenges to that decision.

Failure to criticise the conduct of the First and Second Separate Representative

1. This claim rests on the premise that as alleged by the appellant, each separate representative failed to comply with their obligations to the Mother and the Tribunal and engaged in misconduct. Neither allegation is established. The appellant's opinion about the conduct of the separate representatives is not a matter that can be attributed to the knowledge of the hypothetical observer.
2. This claim must fail.

The Tribunal's alleged failure to control the hearing by permitting the Grandson to give evidence consisting of "fabricated and antagonistic lies"

1. There are several difficulties with this submission. First, it requires that we find that the Grandson gave untruthful evidence and attribute knowledge of that fact to the hypothetical observer. Second, and more to the point, it misapprehends the role of the Tribunal. The Tribunal is required to give parties a reasonable opportunity to adduce evidence and to make findings about material questions of fact. Its role is not, as the appellant appears to suggest, to act as gatekeeper and to prevent a witness whom it suspects has given or might give untruthful evidence from giving evidence.
2. This claim is rejected.

1. In considering the Tribunal's failure to consider the conditions argument, in our view the hypothetical observer would:

(1) know that the appellant raised that argument in written submissions but not in oral submissions;

(2) understand that the Tribunal was obliged to consider any substantial, clearly articulated argument relying on established facts;

(3) be aware that to determine the remitted applications, the Tribunal was required to determine numerous questions of fact and law;

(4) know that there were over 2,000 pages of documents before the Tribunal; and

(5) know that tribunal members are fallible and sometimes make mistakes.

1. The Tribunal's failure to determine the conditions argument might cause the hypothetical observer to question why this occurred and leave them with a sense of unease. However, being fair-minded, that unease in our view would not have caused the hypothetical observer to reasonably apprehend that that failure was deliberate or, as the appellant appears to suggest, was because the Tribunal viewed the applicants in an unfavourable light or had prejudged the decision to appoint the Granddaughter. As the High Court pointed out in Michael Wilson & Partners Ltd v Nicholls at [67], it is a "fallacious argument that making some appealable error, whether by not dealing with all of the losing side's arguments or otherwise, demonstrates prejudgment".

1. Assessed individually, or together, we are not satisfied that the claims of apprehended bias on which the appellant relies might give rise to a reasonable apprehension of bias.

Decisions requiring leave: Decisions 4, 5 and 6

1. The decision to decline to grant an adjournment, the decision to decline to speak to the Mother in the absence of the parties and the "Solicitor decision" are interlocutory decisions. Therefore, to appeal from those decisions the appellant requires leave: NCAT Act, s 80(2)(a).
2. In the Notice of Appeal, in answer to the question "Are you asking for leave" the appellant answered "no". We proceed on the basis that had the appellant been aware that he required leave to appeal from an interlocutory decision, he would have requested leave. We read his submissions in support of the appeal to say the interlocutory decisions gave rise to an "injustice which is reasonably clear".
3. In the recent decision of Houda v Seraphim [2025] NSWCATAP 135 at [31]- [35], an NCAT Appeal Panel summarised the principles which govern the exercise of the discretion to grant leave to appeal an interlocutory decision. These principles include:

(1) leave to appeal should only be granted when there are substantial reasons to warrant leave being granted. These reasons include the presence of an error of principle in the decision under appeal, resulting in substantial injustice;

(2) it is only if the decision is affected by sufficient doubt, to warrant its reconsideration on appeal, that leave will be granted; and

(3) usually, it is only appropriate to grant leave where there is an issue of principle, a question of public importance or an injustice which is reasonably clear, and beyond what is merely arguable for leave to be granted.

1. Where, as here, the decision under appeal was made by the Guardianship Division of NCAT, in exercising the discretion to grant leave, the protective character of the jurisdiction exercised by that Division must be considered: SAB v SEM & Ors [2013] NSWSC 253 at [10]; C v W [2015] NSWSC 1774 at [44]- [46]; ZXH v ZXI [2022] NSWCATAP 269 at [76]; ZXO v Public Guardian [2022] NSWCATAP 260 at [105].
2. Where an application for leave to appeal relates to a question of practice and procedure, the Appeal Panel must exercise the restraint applied by an appellate court when reviewing such decisions: Houda v Seraphim at [34]; see Collins v Urban [2014] NSWCATAP 17 (Collins) at [84(3)], citing BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [21].

1. On 2 October 2024, the Tribunal listed the remitted applications for hearing on 10 December 2024. The day before that hearing, Legal Aid notified NCAT that it had decided to appoint a new Separate Representative (the Second Separate Representative). As noted above, the applicants had complained to Legal Aid and NCAT about the conduct of the First Separate Representative.
2. On 6 December 2024, 9 December 2024 and 10 December 2024, the applicants wrote to the Tribunal requesting that the 10 December 2024 hearing be adjourned.
3. At the commencement of the hearing on 10 December 2024, after inviting the parties and the Second Separate Representative to comment on the applicants' adjournment application the Tribunal took a short adjournment. When the hearing resumed, the presiding member announced that the Tribunal had refused that application. The hearing proceeded.

1. The appellant asserts that the adjournment decision raises the following questions of law:

(1) whether the Tribunal failed to give adequate reasons for the adjournment decision;

(2) whether the Tribunal failed to have regard to "relevant considerations"; and

(3) whether the adjournment decision gives rise to a reasonable apprehension of bias.

1. At [39], the Tribunal summarised the arguments advanced by the applicants in support of their adjournment request:

(1) "Firstly, it is alleged that [the applicants] have provided false and misleading statements to the Tribunal and/or have withheld relevant evidence.

(2) Secondly, it is alleged that the conduct of the former Separate Representative would prevent [the Mother's] best interests being appropriately represented in the proceedings.

(3) Thirdly, upon the appointment of a new Separate Representative, it was contended that [she] would be unable to prepare and undertake the functions of her role in the limited time frame available following her late appointment."

1. As to the first of these grounds, the Tribunal questioned how an adjournment would resolve the applicants' concern that the evidence given, or alleged to have withheld, by the Sister and the Grandson contained false and misleading statements. At [44], the Tribunal identified the issues relating to those allegations:

(1) The applicants' concern that an ACAT (Aged Care Assessment Team) assessment had not been undertaken in respect of the Mother.

(2) The recent evidence of the Mother being diagnosed with cancer which "spread" and her consequent need for medical treatment.

(3) The architect's report commissioned by the NSW Trustee in 2024, which the applicants asserted demonstrated that it was no longer safe for the Mother to remain living in the family home.

1. The Tribunal said those issues did not favour exercising the discretion to grant an adjournment; to the contrary, they indicated that a decision about the appointment of the guardian needed to be made promptly.
2. In respect of the second ground, the Tribunal said at [40] that given that the First Separate Representative had been replaced, the concerns raised by the applicants about his conduct were moot.
3. In respect of the third ground, the Tribunal recorded at [42] that the Second Separate Representative claimed that she "is appropriately appraised of the material before the Tribunal, has had the opportunity to meet privately with [the Mother], and is ready and able to proceed with the Hearing without the need for an adjournment".
4. At [52], the Tribunal gave these reasons for declining to grant an adjournment:

(1) there would be no procedural unfairness to any party if the hearing were to proceed;

(2) an adjournment would be unlikely to result in further evidence becoming available which would materially impact upon the Tribunal's ultimate determination; and,

(3) it is manifestly in [the Mother's] interests for these proceedings to be brought to an end so that she may have certainty and stability in the future.

1. The Tribunal found that the allegations made by the applicants about the First Separate Representative were irrelevant to the question of whether the adjournment should be granted. The Tribunal considered it significant that despite coming into the proceedings late, the Second Separate Representative had nonetheless met with the Mother, and in her opinion, she was able to proceed with the hearing. The Tribunal rejected the applicants' argument that the three issues they raised (see [166] above) favoured an adjournment. Having made those findings, the Tribunal concluded for the reasons set out at [170] above, to decline to grant the adjournment.
2. The reasoning path which led the Tribunal to decide to decline to grant the adjournment request is clear. The contention that the Tribunal failed to give adequate reasons for declining to adjourn the hearing is rejected.

1. In support of the contention that the Tribunal failed to have regard to "relevant considerations" (in the sense used in Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24 at 39) the appellant points to:

(1) The statement made by the Tribunal at [37] in the context of summarising the law and principles which govern the exercise of the discretion to grant an adjournment said it "may also consider the principles in s 4 of the Guardianship Act" (our emphasis). The appellant contends that the use of the word "may", indicates that the Tribunal failed to appreciate that it was obliged to have regard to the section 4 principles. He points to the definition of "may" in the Interpretation Act 1987 (NSW), which states that if used to confer a power, the word "may" indicates that the power may be exercised or not, at discretion: Interpretation Act, s 11.

(2) The short period, probably several minutes, the Tribunal adjourned to consider the adjournment application. The appellant asserts that it would not have been possible to consider "all relevant considerations" in that period.

1. As the appellant correctly points out, in determining the remitted applications the Tribunal was required to observe the general principles of the Guardianship Act (the section 4 principles): Guardianship Act, s 4(d); NCAT Act_,_ Sch 6, cl 5; see also, P v NSW Trustee and Guardian [2015] NSWSC 579 at [53]- [58].
2. As best we can understand the particular principles the appellant contends that the Tribunal was required but failed to consider were the principle that "the welfare and interests of [the Mother] should be given paramount consideration" (the paramountcy principle) (s 4(a) of the Guardianship Act); and, the principle that the Mother "should be protected from neglect, abuse and exploitation" (s 4(g) of the Guardianship Act).
3. The appellant's submission assumes that the Tribunal adopted the meaning given to "may" used by the Interpretation Act. Even if correct, as the reasons reveal, in declining to grant an adjournment, the Tribunal had regard to the section 4 principles. It is implicit from its discussion of the Mother's cancer diagnosis and the suitability of her current accommodation, that the Tribunal took into account the welfare and interests of the Mother and the need to protect her from neglect. That discussion is also consistent with the ultimate conclusion reached by the Tribunal, that given the concerns raised by the applicants, it was "manifestly in [the Mother's] interests for these proceedings to be brought to an end so that she may have certainty and stability moving forward": at [52].
4. As to the submission that it can be inferred from the short adjournment taken to discuss the adjournment application, that the Tribunal failed to consider the section 4 principles, we note:

(1) At the hearing the Tribunal was not taken by surprise by the adjournment application. That applicant was made in writing before the hearing.

(2) Adjournment applications are routinely made in the Guardianship Division. That the members of the Tribunal were able to confer and determine an adjournment application within a short period is unremarkable.

1. The contention that in determining the adjournment application the Tribunal failed to give proper consideration to the section 4 principles, is rejected.

1. In support of the claim that the decision to decline to grant the adjournment application gives rise to a reasonable apprehension of bias the appellant points to:

(1) the Tribunal's failure to determine the applicants' complaint about the First Separate Representative;

(2) the Tribunal's reliance on the claim made by the Second Separate Representative that despite her late appointment she was ready to proceed without an adjournment; and

(3) the "disparaging comments" about the applicants said to have been by the Tribunal, that "were in no way relevant to the actual decisions the Tribunal was required to make".

1. In the hearing of the appeal, we asked the appellant to identify the "disparaging comments" said to have been made by the Tribunal. He was unable to do so. We are therefore unable to consider that claim.
2. As to the failure to determine the applicants' complaint about the First Separate Representative and the Tribunal's acceptance of the assurance given by the Second Separate Representative that she was ready to proceed in the hearing to determine the remitted applications, the appellant has failed to articulate how either matter might have caused the hypothetical observer to apprehend that the Tribunal declined to grant an adjournment otherwise than on its merits.

Decision 5: to decline to "interview Mum alone"

1. The appellant asserts that the adjournment decision raises the following questions of law:

(1) whether the Tribunal failed to give adequate and "truthful" reasons;

(2) whether the Tribunal failed to engage with the central argument and failure take into account relevant considerations; and

(3) whether the Tribunal failed to follow the principle said to be stated in YFM v NSW Trustee and Guardian [2023] NSWCATAP 266.

The adequacy and truthfulness of reasons and failure to consider grounds

1. These grounds overlap and we deal with them together.
2. At [33]-[34], the Tribunal addressed the application made by the applicants requesting that it speak to the Mother alone. The Tribunal acknowledged that it had power to do so and said this may be "an appropriate matter in which to employ this practice": at [33], [34]. However, the Tribunal noted that when invited to speak to the Tribunal alone, the Mother declined that invitation. The Tribunal found that it would be inappropriate to compel the Mother to speak to it alone, "particularly in circumstances where the weight to be attributed to [the Mother's] views may be limited having regard to the relatively narrow scope of the issues now requiring determination by the Tribunal": at [34].
3. The appellant's assertion that the Tribunal gave "untruthful" reasons for declining to exercise the power to take evidence from the Mother in the absence of other parties, is difficult to follow. He appears to assert that the Tribunal overlooked the applicants' claim that throughout the proceedings the Sister and other "intermeddlers" had attempted to influence the Mother. He goes on to assert that the Tribunal endeavoured to conceal that oversight by giving "retrospective" or untruthful reasons for deciding not to interview the Mother alone, that is, because the Mother decline to speak to the Tribunal alone. There is no proper basis for that allegation.
4. The reasoning path which led the Tribunal to decline to speak to the Mother in the absence of the parties is apparent. The contention that the Tribunal failed to give proper consideration to the applicants' request that it interview the Mother alone is in truth an expression of disagreement with the adjournment decision.

1. The appellant contends that YFM v NSW Trustee and Guardian [2023] NSWCATAP 266 is authority for the proposition, that where, as in this case, there is a dispute between the parties about the reliability of the reports of the views expressed by the subject person, the Tribunal is obliged to exercise the power to speak to the subject person alone.
2. The appellant is mistaken. The issue was not discussed, less still determined in YFM v NSW Trustee and Guardian [2003] NSWADTAP 59.
3. Section 49 of the NCAT Act gives the Tribunal a discretionary power to conduct all or some of the proceedings in private if it is "satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason":

49 Hearings to be open to public

(1) A hearing by the Tribunal is to be open to the public unless the Tribunal orders otherwise.

(2) The Tribunal may (of its own motion or on the application of a party) order that a hearing be conducted wholly or partly in private if it is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason.

1. Neither the text, context nor purpose of s 49 of the NCAT Act support the contention that the Tribunal was obliged to exercise the discretion to conduct part of the hearing in private and to speak to the Mother alone.

1. We proceed on the basis that the Solicitor decision challenged by the appellant in the appeal it is the decision referred to at [126], to decline to consider the allegations made by the applicants about the conduct of the Solicitor. The NCAT Act defines decision to include, "refusing to make ... a determination" and "refusing to do any other act or thing". Given the breath of that definition, we assume (without deciding) that the decision to decline to consider each of the allegations made by the applicants about the Solicitor, is an "internally appealable decision" from which the appellant may appeal: NCAT Act, ss 32(1)(a), 32(4), 80(1). We will refer to that decision by the shorthand term "the Solicitor decision".
2. In written submissions the appellant claimed that in the proceedings before the Tribunal the Solicitor made false and misleading statements and acted in breach of the Legal Profession Uniform Law Australian Solicitors' Conduct Rules 2015 (NSW) (the Solicitors' Conduct Rules), including, "to be honest ... in all dealings in the course of legal practice" (r 4.1.2) and, "to not deceive or knowingly or recklessly mislead the court" (r 19.1).
3. Citing Minister for Immigration and Citizenship v Li, the appellant contends that it was "manifestly unreasonable" for the Tribunal to decline to consider "the merits of the allegations" he made about the Solicitor, pointing out that s 71 of the NCAT Act makes it an offence to "provide any information, or make any statement, to the Tribunal knowing that the information or statement is false or misleading in a material respect". Further the appellant asserts that the Tribunal was obliged to give "proper reasons" for failing to consider those allegations.

1. The appellant's submissions tend to suggest that the Tribunal made no findings about the allegations made by the applicants about the Solicitor. However, the Reasons indicate that the Tribunal made several findings about the Solicitor, albeit some of which the appellant disagrees. For example, at [126] in the context of considering whether the Mother lacked capacity to revoke the applicants' appointment as her enduring guardians and attorneys, the Tribunal said that it was not persuaded as asserted by the applicants, that in preparing the revocation documents the Solicitor had engaged in misconduct. Nonetheless the Tribunal found that the Solicitor's assessment of the Mother's mental capacity did "not meet the standard that was required in this complex matter".
2. The appellant's submission that it was manifestly unreasonable for the Tribunal to fail to address each of the allegations made about the Solicitor, misapprehends the role of Tribunal. The role of the Tribunal was to identify and determine the legal and factual issues relevant to the remitted applications. It was not obliged to make findings about disputed matters of interest to the parties which were not relevant to those issues.

1. The proposed appeals from each of the above decisions have no reasonable prospects of success. The proposed appeals raise no issue of general importance, matters of principle or involve a clear injustice. Leave to appeal is refused.

1. In the appeal hearing the appellant asked the Appeal Panel to consider "fresh evidence" namely a 19-page document containing screenshots of text messages between members of the Mother's family. Those text message include the following message sent by a grandson of the Mother (not the Grandson, the son of the Sister) to the Granddaughter's husband on 25 May 2025 at 3:30pm: "stop giving her [the Mother] full nips". The appellant said that this message evidenced that the Granddaughter's husband was giving the Mother alcohol.
2. When asked about the relevance of the screenshots to the appeal the appellant withdrew the request.

Decision to appoint the Granddaughter as the Mother's guardian reconsidered

1. Having found Ground 1 established, pursuant to s 81 of the NCAT Act we decided to reconsider the question raised by s 17(1)(b) of the Guardianship Act: whether there is no undue conflict between the interests (particularly, the financial interests) of the Granddaughter and those of the Mother. Unless we are satisfied that the answer to that question is Yes, the decision to appoint the Granddaughter as the Mother's guardian must be set aside.
2. At [50]-[73] above, we found the Tribunal failed to consider the "conditions argument". It will be recalled that the appellant argued that the conditions the Granddaughter said she intended to impose if the Mother were to come to live with her (the disputed conditions) gave rise to a conflict between her interests and those of the Mother. Set out in a letter from the Grandson to the Tribunal dated 18 November 2024, those conditions included:

(1) "an ACAT assessment of my sister's home be conducted and the cost of any required items needed for my nanna to safely live in my sister's home (e.g. shower rails) be covered out of funds held for my nanna by the public trustee and be carried out by a tradesperson approved by my sister" (Condition 2);

(2) "items my nanna wishes to keep be transported to my sister's home in Holbrook and, where they are unable to fit in the house, be stored in a shed with concrete floor located at my sister's home which is purchased by my nanna out of her funds held by the public trustee" (Condition 4).

1. Because of the passage of time since the Tribunal appointed the Granddaughter as guardian, while reserved in this appeal we requested the Granddaughter to provide a written statement stating:

(1) whether, in the exercise of the accommodation function conferred by the guardianship order, she had decided that the Mother should reside with her and her husband in their home (the property), and

(2) if so, whether:

(a) any repairs have been undertaken to the property, and, if so:

(i) the nature and cost of those repairs, and

(ii) whether the Mother has paid, or has been asked to pay, for some or all of the costs of those repairs (Condition 2);

(b) a shed has been, or is proposed to be, built on the property to store the Mother's possessions and, if so, whether the Mother has, or will be asked to contribute to the costs of building that shed (Condition 4).

1. In answer to our request, the Granddaughter filed a statement dated 29 July 2025. We invited the parties to review that statement and comment on whether, as the appellant contended in submissions filed on 2 December 2024, there exists an undue conflict between the interests (particularly, the financial interests) of the Granddaughter and those of the Mother (the conflict question).
2. The appellant, Sister 2, the Sister and the Grandson provided written submissions. The Mother's youngest daughter filed written submissions which largely repeat the submissions made by the appellant and Sister 2.
3. In addition, we invited the parties to comment on whether the conflict question could be adequately determined without a further hearing as permitted by s 50 of the NCAT Act. The Appellant and Sister 2 agreed that that question could be adequately determined without a further hearing. The Sister and the Grandson made no comment. Having reviewed the Granddaughter's statement, together with the submissions made by the parties, we are satisfied that the conflict question can be adequately determined in the absence of the parties. We made an order dispensing with a further hearing.

1. In a statement dated 29 July 2025, the Granddaughter said:

(1) in February 2025, at the Mother's request the Mother came to live with the Granddaughter and her husband at the property;

(2) since that time, some repairs have been undertaken to the property, including replacing a roof and renovating a bathroom. She and her husband paid for those repairs. She has not requested the Mother to contribute to those costs, nor does she intend to do so;

(3) the possessions the Mother wished to keep after moving from her home are now stored in a shipping container on the property;

(4) the cost of that container was about $4,000 which she and her husband paid for. The Mother has not and will not be asked to contribute to that cost;

(5) a shed has not been built on the property to store the Mother's possessions, nor does she or her husband plan to build a shed;

(6) these claims can be verified by the NSW Trustee, who manages the Mother's financial affairs.

Submissions made by the parties addressing the Granddaughter's statement

1. The submissions made by the appellant and Sister 2 largely repeat the arguments they made in the 2 December 2024 submission. In short, they contend that if Conditions 2 and 4 were to be implemented the value of the Granddaughter's property would increase and this would give rise to an undue conflict between her financial interests and those of the Mother.
2. The appellant points out that in his letter to the Tribunal dated 18 November 2024, the Grandson said that if an ACAT assessment of the property were to be conducted "the cost of any required items needed for my nana to live safely in my sister's home (e.g. shower rails) [must] be covered out of funds held by the public trustee". He argues that that statement was made in the "plainest of terms" and it is "manifestly, dishonest, false and misleading" for the Granddaughter to now claim that "it has not crossed my thoughts to ask my nan to pay for anything regarding my property and I would never ask this of her". He contends that the renovation needed to make the property comply with ACAT standards would "easily run into hundreds of thousands of dollars".
3. In addition, the appellant disputes the Granddaughter's claim that she does not intend to build a shed on the property. In support he points to a photograph taken in 2023, which shows two cars and a trailer on the property. This together with the Granddaughter's recent statement that the existing garages on the property "are already full", establishes that the Granddaughter is likely to build another garage and ask the Mother to contribute to that cost.
4. Further, the appellant disputes the Granddaughter's assertion that she would not be permitted to use the Mother's money to fund improvements to the property because her estate is committed to the management of the NSW Trustee. He argues as "a matter of fact of law" the Granddaughter could apply to the NSW Trustee for funding under s 73 of the NSW Trustee and Guardian Act 2009 (NSW).
5. Sister 2 supports the appellant's submission.
6. The Grandson supports the Granddaughter's claim that she has not sought reimbursement from the NSW Trustee to undertake repairs to the property and purchased a shipping container to store the Mother's property using her own money. He claimed that it was he, not the Granddaughter, who had suggested that a shed be built on the property to store the Mother's possessions.
7. The Sister also supports the Granddaughter's claims. She said to her knowledge, the Granddaughter has not used the Mother's money to "adjust to living" at the property.

1. Following receipt of the Granddaughter's statement and the submissions made by the parties, we wrote to the NSW Trustee and asked whether before or after being appointed guardian the Granddaughter had requested the NSW Trustee to contribute to the cost of repairing or building a shed on the property; whether the NSW Trustee has made any payment in relation to the Holdbrook property, and if so, to whom and for what purpose.
2. The Trustee advised:

(1) there is no record of funds being dispersed directly to the Granddaughter or the Mother, for property-related expenses;

(2) the only request for funds made by the Granddaughter was in May 2025 for a contribution of $500 for firewood to heat the property;

(3) a weekly allowance of $250 is being paid into the Mother's bank account.

1. We gave the parties an opportunity to comment on the information provided by the NSW Trustee. The appellant and Sister 2 were the only parties to make submissions in answer to that invitation.
2. The appellant submitted that the fact that to date the Granddaughter had not requested the Trustee to fund improvements to the property proves little. He said that the Granddaughter is "not stupid enough to apply for money before the Appeal decision" and asserts that it would be open for her to do so in the future. Sister 2 made much the same point asserting the Granddaughter is "cunning enough" to delay requesting the Trustee for funds.
3. Referring to the weekly $250 allowance being paid into the Mother's bank account, the appellant said, "for all we know, Mum's unaccounted for money is spent as drinking and gambling money by [the Granddaughter's] husband". He considered that the request by the Granddaughter for $500 to contribute to the purchase of firewood for the household to be significant because the Mother was in hospital when that request was made.
4. The appellant and Sister 2 repeated their argument that the disputed conditions demonstrate a conflict between the Granddaughter's interests and those of the Mother.

1. A guardian appointed under a guardianship order owes the obligations of a fiduciary to the person the subject of that order: P v NSW Trustee and Guardian [2015] NSWSC 579 at [51]; Ability One Financial Management Pty Ltd and Anor v JB by his Tutor AB [2014] NSWSC 245 at [113], [166]-[175]. A fiduciary must avoid a conflict, or sensible possibility of conflict, between their personal interests and their duty to the protected person: GDR v EKR [2012] NSWSC 1543 at [38]; Woodward v Woodward [2015] NSWSC 1793 at [36].
2. Section 17(1)(b) of the Guardianship Act states that a "person shall not be appointed as the guardian of a person under guardianship unless ... the Tribunal is satisfied that there is no undue conflict between the interests (particularly, the financial interests) of the proposed guardian and those of the person under guardianship".
3. Commenting on s 17(1)(b) of the Guardianship Act, in IR v AR [2015] NSWSC 1187, Lindsay J said at [31], that the Tribunal "is not precluded from appointing a particular person as guardian if it considers that, although a conflict exists, the conflict is not 'undue'". At [35], Lindsay J said that a "conflict of interest" will be "undue" if "it is reasonably likely, to an unacceptable degree, to impede the proposed guardian's performance of the duties of a guardian in the particular case". At [33], Lindsay J said:

"[T]he expression 'no undue conflict' reflects the reality that, in a particular case, discharge of the obligations of a guardian (e.g. by a member of family living within the same household as the person under guardianship) might necessitate a sharing of resources devoted to the welfare of a person under guardianship, not a complete separation of the lives of guardian and ward."

1. The question raised is whether, as the appellant and Sister 2 contend, the letter from the Grandson to the Tribunal stating that the Granddaughter intends to impose the disputed conditions demonstrates a conflict between the interests of the Granddaughter and those of the Mother. If the answer to that question is Yes, the further question to be decided is whether that conflict can properly be characterised as being undue. The interests said by the appellant and Sister 2 to be in conflict are in the nature of financial interests.
2. The appellant and Sister 2 contend that the Granddaughter stands to benefit financially, if, in the exercise of her authority as guardian, she decides the Mother is to reside in her property and then requires the Mother to fund improvements to the property. Pointing to the Grandson's letter dated 18 November 2024, they argue that the Granddaughter's recent claim that she has not, and would not, ask the Mother to contribute to improvements to the property cannot be accepted.
3. As the appellant and Sister 2 correctly point out, the statement in the Grandson's letter dated 18 November 2024 that the Granddaughter intends to impose Condition 2 and 4 is inconsistent with the Granddaughter's claim made in her statement dated 29 July 2025 that she has not and would not request the Mother to contribute to the payment of improvements to the property, and that she has resolved the problem of storing the Mother's possessions by purchasing a shipping container, a cost she has borne herself. Those recent claims are supported by the Sister and the Grandson and disputed by the appellant and the Sister 2.
4. For the following reasons, the Granddaughter's stated intention to impose Conditions 2 and 4 do not demonstrate an undue conflict between her financial interests and those the Mother.
5. First, the Trustee confirms the Granddaughter's recent claim that she has not requested it to fund any repair to, or other type of improvement to, the property.
6. Second, even if, contrary to her most recent claim, in the future the Granddaughter were to request the NSW Trustee to contribute to the costs of repairing or improving the property, it is not a forgone conclusion, as the appellant and Sister 2 suggest, that the NSW Trustee would agree to that request. The NSW Trustee would be required to assess the benefit to the Mother of making such contribution and give paramount consideration to her welfare and interests: NSW Trustee and Guardian Act, s 39. It is highly improbable that the NSW Trustee would fund improvements which might increase the value of the property with little or no real benefit to the Mother.
7. Third, in any event, Condition 2 - that the Mother fund "items such as handrails, etc recommended by an ACAT assessment" - could not be said to give rise to an undue conflict between the interests of the Mother and those of the Granddaughter. The cost of those items is likely to be modest but more to the point would demonstrably benefit the Mother.
8. Finally, the appellant's belief that the Granddaughter may be using the Mother's weekly allowance for her own purposes is unsupported.
9. The Granddaughter has not acknowledged, less still explained, the reason for abandoning her intention to impose Conditions 2 and 4 as stated in the Grandson's letter of 18 November 2024. In those circumstances, the appellant and Sister 2 are understandably sceptical about the veracity of her claim to have no intention of doing so. If the Granddaughter were appointed as manager of the Mother's estate, the argument advanced by the appellant and Sister 2 would have greater force. However, given that the Mother's financial affairs are managed by the NSW Trustee, we are not persuaded that any conflict between the interests of the Granddaughter and those of the Mother could be described as undue.

(3) Pursuant to s 50(2) of the Civil and Administrative Act 2013 (NSW) the Appeal Panel dispenses with a hearing to determine the issue of whether it is satisfied that the Granddaughter meets the criteria in s 17(1)(b) of the Guardianship Act 1997 (NSW).

(4) The decision made by the Tribunal on 10 December 2024 to appoint the Granddaughter as guardian, is affirmed.

(EXCEPT FOR WORDS IN SQUARE BRACKETS ANNEXURE A IS REPRODUCED WITHOUT ALTERATION FROM SUBMISSIONS FILED BY THE APPELLANT ON 14 FEBRUARY 2025.)

SUMMARY - LEGAL ISSUES TO BE DECIDED BY APPEAL PANEL

1. GROUNDS OF APPEAL -REFUSAL TO GRANT ADJOURNMENT

• Failure to take into account relevant considerations [Ground 1]
• Failure to provide adequate reasons [Ground 2]

2. GROUNDS OF APPEAL - REFUSAL TO GRANT ADJOURNMENT

• Failure to take into account relevant considerations [Ground 3]
• Failure to provide adequate reasons [Ground 4]
• Denial of procedural fairness - failure to engage with central arguments put forward, or to reasonably respond to a clearly articulated argument [Ground 5]
• Denial of procedural fairness - apprehension of bias [Ground 6]

• Asking the wrong question and/ or identifying the wrong issue [Ground 7]
• Failing to engage with the central issue that was to be decided [Ground 8]
• Arriving at ultimate errors of fact, not supported by evidence [Ground 9]
• Failure to take into account relevant considerations - failure to comply with section 38(6) of the NCAT Act [Ground 10]
• Failure to comply with orders made by the appeal panel [Ground 11]

• Asking the wrong question and/ or identifying the wrong issue [Ground 12]
• Failing to engage with the central issue that was to be decided [Ground 13]
• Arriving at ultimate errors of fact, not supported by evidence [Ground 14]
• Failure to take into account relevant considerations - failure to comply with section 38(6) of the NCAT Act [Ground 15]
• Failure to comply with orders made by the appeal panel [Ground 16]

5. GROUNDS OF APPEAL - THE ISSUE OF FIDUCIARY DUTIES

• Asking the wrong question and / or identifying the wrong issue [Ground 17]
• Failure to provide adequate reasons to explain his decision [Ground 18]
• Unreasonableness [Ground 19]
• Failure to engage with a central issue that was to be decided [Ground 20]
• Arriving at ultimate errors of fact, not supported by evidence [Ground 21]

6. GROUNDS OF APPEAL - ALLEGATIONS AGAINST SOLICITOR RICHARD DOYLE

• Asking the wrong question and / or identifying the wrong issue [Ground 22]
• Denial of procedural fairness reasonable apprehension of bias [Ground 23]
• Manifest unreasonableness / failure to give adequate reasons [Ground 24]
• Arriving at ultimate errors of fact, not supported by evidence [Ground 25]
• Failure to engage with a central issue that was to be decided [Ground 26]

7. GROUNDS OF APPEAL - APPOINTMENT OF THE GRANDDAUGHTER AS A GUARDIAN

• Failure to engage with a central issue that was to be decided [Ground 27]
• Asking the wrong question and / or identifying the wrong issue [Ground 28]
• Arriving at ultimate errors of fact, not supported by evidence [Ground 29]
• Manifest unreasonableness / failure to give adequate reasons [Ground 30]
• Denial of procedural fairness reasonable apprehension of bias [Ground 31]

8. GROUNDS OF APPEAL - APPOINTMENT OF THE GRANDDAUGHTER AS A GUARDIAN

• Asking the wrong question and / or identifying the wrong issue Manifest unreasonableness / failure to give adequate reasons [Ground 32]
• Arriving at ultimate errors of fact, not supported by evidence [Ground 33]
• Failure to give adequate reasons [Ground 34]

9. GROUNDS OF APPEAL - FAILURE TO ORDER REVIEW OF APPOINTMENT OF ENDURING GUARDIAN, AFTER ONE (1) YEAR

• Asking the wrong question and/ or identifying the wrong issue [Ground 35]
• Failure to follow a decision by president and deputy president [Ground 36]
• Failure to give adequate reasons [Ground 37]

10. GROUNDS OF APPEAL - FAILURE TO CONSIDER WRITTEN REQUEST MADE BY THE APPLICANTS TO INTERVIEW THE MOTHER ALONE

• Failure to engage with the central argument and failure take into account relevant considerations - section 38(6) NCAT Act [Ground 38]
• Failure to follow appeal panel decision by a deputy president [Ground 39]
• Failure to give adequate and truthful reasons [Ground 40]

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.