YJM v Public Guardian

Non-publication

1. The publication or broadcast of the name of any person, who is mentioned or is otherwise involved in an internal appeal against decisions made by the Guardianship Division of NCAT, is prohibited under s 65(1) of the Civil and Administrative Tribunal Act 2013 (NSW) which we will refer to as the "NCAT Act".

Participation

1. For completeness, we record that YJN and YJO did not seek to participate in the appeal.
2. The Public Guardian also elected not to participate in the appeal.

Procedural issues

1. In the proceedings at first instance, YJO appears to have represented YKI's interests, as she lives overseas. YJO was named as a party to the appeal and received the relevant material and notice of the hearing. Nonetheless, YKI was not named as a party or given direct notice of the hearing.
2. We decided, given the history of YJO's prior representation of YKI's interests that it was appropriate to proceed to hear from YJM on the appeal but to make directions to allow YKI to seek to reopen the hearing if she asserted prejudice or wished to be heard. We issued directions after the hearing noting that: YKI, being a party to the proceedings under appeal and therefore a party to the appeal (see r 29 of the Civil and Administrative Tribunal Rules 2014), is named as Respondent to the appeal. The Registrar is requested to forward the following to YKI, by email: (1) The Notice of Appeal and the attachments to it; (2) The Appellant's second, third and fourth submission bundles; (3) The Appellant's bundle headed "Subpoena notes"; and (4) The directions made in the appeal on 27 March 2024 and these directions. (5) The Appeal Panel confirms that a hearing was conducted in the absence of [YKI] on 18 July 2024 as she had not been named as a party to the appeal. [YKI] is directed to notify the Registry within 21 days, in writing, if she wants to be heard separately in respect of the appeal. Alternatively, [YKI] may indicate that she supports the appeal for the reasons of the appellant, or that she does not wish to be heard in the appeal.
3. Nothing was received from YKI to indicate that she wishes to be heard, or otherwise. We will determine the matter on that basis.
4. Subsequently, Member Newman became unavailable to complete the appeal. As a result, the acting President of the Tribunal reconstituted the Appeal Panel pursuant to s 52(2)(a) of the NCAT Act. The members of the reconstituted Appeal Panel being Principal Members Coleman ADCJ and Suthers, together with Member Porter. The reconstituted Appeal Panel obtained access to and considered a transcript of the appeal hearing conducted on 18 July 2024, together with the material lodged in the appeal in accordance with directions.
5. As a consequence, the reconstituted Appeal Panel has considered the evidence, submissions and the decisions already made and determined that a further hearing is not necessary.

Scope and nature of internal appeals

1. An appeal to the Appeal Panel does not simply provide a losing party in the Tribunal at first instance with the opportunity to run their case again: Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10]. To succeed in an appeal, the appellant must demonstrate either an error on a question of law, which, except in an appeal from an interlocutory decision, may be argued as of right; or that permission (that is, "leave") to appeal should be granted to bring the appeal: NCAT Act, s 80(2).

What is a question of law for the purposes of s 80(2) of the NCAT Act?

1. A question of law as referred to in s 80(2) of the NCAT Act excludes questions of mixed fact and law and, of course, questions of fact that are not jurisdictional in nature. The question or questions of law identified are, in the absence of leave to appeal on other grounds, the subject matter of the appeal: Ferella v Chief Commissioner of State Revenue [2014] NSWCA 378 at [22].
2. An error of law will not always provide a foundation for the identification of a question of law: Orr v Cobar Management Pty Limited [2020] NSWCCA 220 at [52].
3. The error must be material and affect the decision: Kudrynski v Orange City Council [2024] NSWCA 33 at [49]; Liu v Director of Public Prosecutions (NSW) [2024] NSWSC 382 at [90].
4. We will proceed on that basis.

What are the principles governing leave to appeal?

1. The principles governing an application for leave to appeal under the NCAT Act are well-established and are repeated in many decisions of the Appeal Panel, often quoting Collins v Urban [2014] NSWCATAP 17. They are the same principles applied by the courts. It is enough as a summary to refer to Secretary, Department of Family and Community Services v Smith [2017] NSWCA 206, where the Court said at [28] (citations omitted): "Only if the decision is attended with sufficient doubt to warrant its reconsideration on appeal will leave be granted. Ordinarily, it is only appropriate to grant leave where there is an issue of principle, a question of general public importance, or an injustice which is reasonably clear, in the sense of going beyond what is merely arguable. It is well established that it is not sufficient merely to show that the trial judge was arguably wrong."
2. Further, as Basten JA said (White JA agreeing) in Hungry Jack's Pty Ltd v Fourtounas [2020] NSWCA 325 at [9], cited with approval in Amirbeaggi v Matrix Group Co Pty Ltd [2021] NSWCA 21: "... more is required than identification of error on the part of the trial judge, even if it can be said that the error is reasonably clear. Generally, the court will also need to be satisfied that there is a matter of some public importance engaged and that the costs of further litigation are not disproportionate to the amount in issue. Further, it should be established that, to leave any putative error uncorrected, would give rise to a substantial miscarriage of justice."
3. In P v NSW Trustee and Guardian [2015] NSWSC 579 at [191] Lindsay J indicated that five qualifications should apply to the comments of the Appeal Panel in Collins v Urban, in the context of an appeal from the Guardianship Division. Of those, only four are relevant in appeals to the Appeal Panel (rather than to the Court). Those four qualifications are: 1. There is a need to take section 4 of the Guardianship Act 1987 (NSW) specifically into account, which was recognised in BPY v BZQ [2015] NSWCATAP 33 at [33]-[34]; 2. In deciding how to proceed in dealing with any challenge to a decision of the Guardianship Division, it is important to be mindful of a need, characteristic of the protective jurisdiction but reinforced by statute, to administer a protected estate without strife, in the simplest and least expensive way; with informality of procedure; and in a manner calculated to facilitate the just, quick and cheap resolution of the real issues in dispute; 3. Given the broad evaluative or discretionary content of most decisions made on an exercise of protective jurisdiction, guidance about what is or may be an error of principle may, in particular cases, be derived from House v The King; and 4. In reviewing an evaluative or discretionary decision of the Guardianship Division, it is necessary to make due allowance for the possibility that the Division's discretionary powers, in the exercise of protective jurisdiction, are unconfined except by the subject matter, scope and purpose of the Tribunal's jurisdiction.
4. In comments that we are satisfied are equally apposite to the conduct of appeals from the Guardianship Division to the Appeal Panel, in EB v Guardianship Tribunal [2011] NSWSC 767 at [194]-[199], Hallen AsJ (as his Honour then was) also noted the relevance for present purposes of the observations in Slinko v Guardian and Administration Tribunal [2006] QSC 39; at [10] to [16] that: "(a) It is clearly not intended that there be a re-hearing in the Supreme Court [here the Appeal Panel], on the facts, simply for the asking. ... (b) To warrant a grant [of] leave, an applicant must demonstrate an arguable case of error in a finding, central, and not merely peripheral, to the determination, such that it would be unjust to allow the finding to stand... (c) The suggested factual error, or errors, must rest in the adoption of a factual position beyond the realms of reasonableness, or one that is clearly mistaken… (d) The factual error, or errors, should be plainly and readily apparent. The Court ought not embark on a comprehensive re-examination of all of the evidence to identify the error or errors. It would subvert the legislative intent if, factual error being suggested, the court were to embark on a comprehensive re-examination of the facts of the case to exclude the possibility."

A new hearing?

1. We may decide to conduct a new hearing if we are satisfied that the grounds for appeal warrant it: NCAT Act, s 80(3)(a). A new hearing under s 80(3) of the NCAT Act is a hearing de novo, or "from the beginning": Yuen v Thom [2016] NSWCATAP 243 at [17].
2. Whilst we may decide to conduct a new hearing, the parties did not ask us to do so here and we were not satisfied that the grounds for appeal warranted it.

The substance of the appeal

1. The Notice of Appeal consisted of a discursive critique of the Tribunal's decision and the appellant's material contains many and various types of assertions that cannot reasonably be regarded as advancing his case.
2. As the appellant is self-represented, a broad interpretation of the grounds of appeal should be allowed unless it unreasonably prejudices the respondents: Prendergast v Western Murray Irrigation Ltd [2004] NSWCATAP 69. However, there is a proper limit to this process, in that it is not the role of the Appeal Panel to draft grounds of appeal for the appellant not clearly raised, and then resolve them (ZNX v ZNY [2020] NSWCATAP 41, citing SZTOG v Minister for Immigration and Border Protection [2018] FCA 112), unless the issues go to the jurisdiction of the Tribunal or are otherwise necessarily considered to resolve the appeal.
3. In these circumstances, it is unnecessary for the full detail of the assertions to be addressed in this decision: Edwards v State of New South Wales [2022] NSWCA 187 at [58], citing Mohareb v Saratoga Marine Pty Ltd [2020] NSWCA 235 at [44]; Secretary of the Department of Planning, Industry and the Environment v Blacktown City Council [2021] NSWCA 145 at [26]. Instead, we will address what appears to be the substance of the appellant's complaints.
4. In that regard, we were able to discern the following grounds as questions of law, that were adopted by the appellant: 1. Did the Tribunal deny the appellant procedural fairness by: 1. failing to provide sufficient time for the hearing to be conducted; 2. failing to conduct the proceedings fairly, and with participation from all relevant parties; 3. failing to have regard to video evidence tendered by the appellant; 4. failing to arrange for an advocate for YJN at the hearing; 5. preventing the appellant from obtaining pertinent documents under summons. 6. demonstrating bias, or a reasonable apprehension of bias.
5. It is sufficient, in our view, to note that a thorough review of the Notice of Appeal and the material filed by the appellant with it take the viable allegations of appellable error by the Tribunal no further than the grounds as drafted above.

Bias

1. In accordance with the comments of French J in Jia v Minister for Immigration and Multicultural Affairs (1998) 84 FCR 87 at 106, 107, cited with approval by Gleeson CJ and Gummow J in Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17 at 520, the onus of demonstrating grounds for recusal on the basis of actual bias lies with the party asserting it. That practical onus remains with a party asserting apprehended bias to provide cogent reasons that it is established.
2. It has been determined in South Western Sydney Area Health Services v Edmonds [2007] NSWCA 16 that an allegation of actual bias must be distinctly made and clearly made out.
3. The relevant principles are: 1. In respect of actual Bias: In Minister for Immigration and Multicultural Affairs v Jia Legeng, Hayne J said at [183], relevantly that: "Bias is used to indicate some preponderating disposition or tendency, a "propensity or predisposition towards; or predilection; a position of prejudice." It may be occasioned by an interest in the outcome, by affection or enmity, or by prejudgment. Whatever its cause, the result that is asserted or feared is a deviation from the true course of decision-making, for bias is properly described as "anything which turns a man to a particular course, or gives the direction to his measures.""
4. The relevant principles in determining whether there is reasonably apprehended bias, and how they are to be applied, have been set out by the High Court of Australia in various decisions. In Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, at [6], the High Court said, relevantly, that "… the governing principle …[is that]… a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that a tribunal be independent and impartial."
5. The High Court also said in Ebner at [19]: "Judges have a duty to exercise the judicial functions when the jurisdiction is regularly invoked and they are assigned to cases in accordance with practice which prevails in the court to which they belong. They do not select the cases they will hear, and they are not at liberty to decline to hear cases without good cause. Judges do not choose their cases; and litigants do not choose the judges. If one party to a case objects to a particular judge sitting, or continuing to sit, then the objection should not prevail unless it is based upon a substantial ground for contending that the judge is disqualified from hearing and deciding the case."
6. For a decision-maker to disqualify himself or herself for apprehended bias, there must be an objective connection between the facts and circumstances said to give rise to the apprehension and the asserted conclusion that the decision-maker might not bring an impartial mind to bear on the issues that are to be decided: Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48 at [67], per Gummow ACJ, Hayne, Crennan and Bell JJ.
7. The reasonableness of any apprehension of the fair-minded lay observer is also considered "in the context of ordinary judicial practice": Charisteas v Charisteas [2021] HCA 29 at [12] (Kiefel CJ, Gageler, Keane, Gordon and Gleeson JJ); 95 ALJR 824 quoting Ebner at [13]; see also Kirby J's comments in Ebner at [53].
8. In preparation for the appeal, the appellant was directed that "if … what happened at the hearing at first instance is being relied on by the appellant in the appeal" he must provide a typed transcript of the relevant parts of the hearing together with the sound recording of the entire hearing. The appellant did not do so.
9. No assertion as to bias or apprehended bias in respect of the Senior Member at first instance was said to arise from an identified predisposition, predilection or a position of prejudice in respect of the parties or the nature of the proceedings. Rather, the appellant, we infer, says that bias or apprehended bias is established by reference to the outcome of the proceedings and his subjective views about how they were conducted. The appellant is wrong in that regard. There is no apparent basis for an allegation of bias or apprehended bias made out on the material before us and, on that basis, the allegation should not have been made.

Other aspects of procedural fairness

1. There is no doubt that the Tribunal is obliged to conduct its proceedings in a way that is procedurally fair: NCAT Act, s 38(5). That is, it must give a party a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings.
2. A denial of procedural fairness gives rise to jurisdictional error only if it is "material". "Materiality" in this context refers to a realistic possibility, as distinct from a probability, that the decision could have been different as a matter of reasonable conjecture but for the denial of procedural fairness: Ceerose Pty Ltd v A-Civil Aust Pty Ltd (No 2) [2023] NSWSC 345 at [59] (citations omitted).

Failing to provide sufficient time for the hearing to be conducted

1. The proceedings were allocated one hour for hearing and the appellant submits that this was insufficient for the proceedings to be fairly conducted. However, in the absence of the sound recording and transcript, there is no evidence to substantiate this concern. The time allocated is within the discretion of the Tribunal, subject to the need to provide the parties with a reasonable opportunity to be heard. In the absence of evidence that the appellant was cut off, or that his time to present his position was unduly truncated, this ground cannot be made out. Nor do we accept, without evidence to place it into context, that an alleged refusal by the Tribunal to allow the appellant to "read aloud" in the hearing constitutes denying him a reasonable opportunity to be heard or have his submissions considered.

Failing to conduct the proceedings fairly, and with participation from all relevant parties

1. The primary complaint of the appellant in this regard is that the officer of the Public Guardian allocated to make decisions for YJN did not participate in the review proceedings, and that the Tribunal did not mandate that attendance. It would be unusual for the Tribunal to mandate the participation of a particular officer of the Public Guardian in a hearing, as it is generally for the Public Guardian to determine whether to present evidence or submissions or to seek to rebut or refute the evidence and submissions of other parties. Further, there was a report from the allocated officer before the Tribunal and a different officer of the Public Guardian attended the hearing. There is no evidence that the appellant raised any concern about this at the hearing or sought any direction that a particular officer of the Public Guardian attend. Nor has the appellant identified any specific questions he might have sought to raise with the Public Guardian that were pertinent to the proceedings but unable to be answered, to demonstrate practical injustice from the nature of the Public Guardian's participation. No procedural unfairness is established.
2. Similarly, the appellant's complaints that other witnesses were given disproportionate time or consideration in the hearing at first instance, or that the Senior Member was "dismissive" of him cannot be made out in the absence of the sound recording or transcript of the hearing.
3. No procedural unfairness on this ground is established.

Failing to have regard to video evidence tendered by the appellant

1. The appellant asserts that he provided video recordings of YJN in his youth, at about ages 12 to 14, to establish that YJN previously communicated verbally, which he is now unable to do. It is apparent that YJM is firmly of the view that the deterioration in YJN's ability to communicate verbally has been caused or contributed to by the nature of his care and support since entering SIL. YJM asserts, and for the purpose of considering this ground we will accept, that the Tribunal declined to watch the videos in the hearing.
2. A failure by the Tribunal to have regard to pertinent evidence lodged by a party may demonstrate a breach of procedural fairness if it unreasonably prevents the party from establishing a relevant fact or integer of their case. However, in the context of proceedings in the Guardianship Division, we need be mindful of the fact that the proceedings are not adversarial, in the traditional sense. Rather, they are an examination of the material and evidence before the Tribunal to facilitate a decision which will best promote the welfare and interests of YJN: Guardianship Act 1987 (NSW), s 4.
3. Furthermore, in proceedings where the rules of evidence apply, evidence that is irrelevant will be excluded. Whilst the Tribunal is not bound by the rules of evidence in this context, it may determine its own procedure in relation to any matter for which the NCAT Act or the procedural rules do not otherwise make provision (NCAT Act, s 38(1)) and is only required to give a party a reasonable opportunity to present their case.
4. Whilst a party has a right to be heard, that right is not unfettered, as evidenced by the right of the Tribunal to set limits on the time available to a party to give evidence and make submissions, afforded by ss 38(1) & 38(6)(c) of the NCAT Act.
5. The parties are under an obligation to cooperate with the Tribunal to facilitate the just, quick and cheap resolution of the real issues in the proceedings: NCAT Act, ss 36(1) & (3)(a).
6. In our view, those provisions are sufficiently broad to allow the Tribunal to refuse to allow a party to present evidence that is irrelevant or not sufficiently probative.
7. Here, there was never any dispute that YJN could communicate verbally in his youth, nor any indication that was relevant to the issues the Tribunal had to decide now. The appellant was also able to rely on other uncontradicted evidence in the way of a statement by a taxi driver who transported YJN in his youth that YJN used to speak to him. We gave the appellant the opportunity to address how the evidence was probative. He asserted that it would be reasonable to infer that the Tribunal would have assumed that YJN never communicated verbally, particularly in light of a report by Associate Professor Davies that was in evidence and described YJN as having "non-verbal autism" in 2023. The report also recorded that "on examination today YJN was without speech."
8. We are not satisfied that the Tribunal refusing to watch videos to prove that YJN could speak when he was younger was a breach of procedural fairness in these circumstances. There is nothing to indicate that the evidence was relevant or probative to the Tribunal's primary task, which the Tribunal correctly recited at [18] of the Decision as requiring consideration of the following: "Section 14 of the Guardianship Act provides that the Tribunal may make a guardianship order for a person if it is satisfied that he/she is "a person in need of a guardian." A person in need of a guardian is "a person who because of a disability is totally or partially incapable of managing his or her person" (s 3(1), Guardianship Act)…".
9. That test is to be applied at the date of the hearing.
10. Our view in that regard is only strengthened when we have not been provided with the sound recording or transcript of the hearing so that we can know why the Tribunal refused to watch the videos or what was said by the appellant in that regard.
11. Even if we are wrong in that, we would not allow the appeal on this ground because the appellant has failed to establish that the refusal to watch the videos was material in the relevant sense because the issue of whether YJN communicated verbally many years ago was not one which could realistically have had a bearing on the outcome of the hearing.

Failing to arrange for an advocate for YJN at the hearing

1. The appellant asserts that he expected that an independent advocate would have been arranged to represent the interests of YJN and advocate for him at the hearing. Quite what caused that apprehension was not disclosed. Nor does it appear that such an advocate was appointed on the last occasion the order was reviewed.
2. The Tribunal has a discretion to appoint a separate representative in proceedings of this nature: NCAT Act, s 45(4)(c). However, even if it does so it is reliant on a separate representative being allocated and funded by Legal Aid NSW, which is beyond the Tribunal's control and is a limited resource which needs to be used judiciously. In proceedings in the Guardianship Division, the appointment of a separate representative is not commonplace and is more common in respect of initial applications than on review.
3. There is no evidence before us that the appellant sought the appointment of a separate representative for YJN before the hearing, or sought to agitate the issue at the hearing when it became apparent that none was appointed.
4. More fundamentally, though, the appellant's concern overlooks that he had been appointed to advocate for YJN under the Tribunal's previous guardianship order. In that respect, the Tribunal ought reasonably be able to anticipate that the question of advocacy was resolved in the absence of any application to indicate to the contrary.
5. No procedural unfairness on this ground is established.

Preventing the appellant from obtaining pertinent documents under summons

1. Simply put, there was no evidence before us about the appellant's efforts to obtain documents under a summons before the hearing at first instance to establish a breach of procedural unfairness of this nature. Nor was it submitted that an adjournment of the hearing to obtain such documents was made and refused. The appellant asserts that he was told by Registry the issue would be raised at the hearing, but has not provided evidence to establish what occurred at the hearing at all.
2. No procedural unfairness on this ground is established.

Leave to appeal

1. Having beneficially drafted, and then resolved the appellant's questions of law, we are satisfied that we have addressed any issues of general principle or public importance arising in the appeal.
2. In the absence of the recording or transcript of the hearing at first instance, any allegations as to error on grounds involving alleged errors of fact or mixed fact and law cannot rise beyond the merely arguable because we do not know the full extent of the evidence the Tribunal was asked to consider, or the submissions it was asked to address.
3. Leave to appeal is refused.

Orders

1. Our Orders are as follows: 1. Leave to appeal is refused; 2. The appeal in respect of questions of law is dismissed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 31 October 2024