YKL v South Western Sydney Local Health District

Anti-Discrimination Act 1977 (NSW)

Civil and Administrative Tribunal Act 2013 (NSW), ss 38(2), 80(2)(b); cl 5(1) of Sch 6

Guardianship Act 1987 (NSW), ss 3(2), 3F, 4, 4(a)-(b), 4(g), 14(2), 48B, 48B(1), 49A, 49B(2); Pt 5A

Guardianship and Administration Act 1986 (Vic)

Guardianship and Administration Act 1990 (WA), ss 4(2), 40

Guardianship and Administration Act 1993 (SA), s 34

Guardianship Regulation 2016 (NSW), cl 16(f)

Interpretation Act 1987 (NSW), ss 5(2), 12, 33

Australasian Temperance and General Mutual Life Assurance Society Ltd. v Howe [1922] HCA 50; (1922) 31 CLR 290

Burns v Corbett (2017) 265 CLR 304; [2018] HCA 15

Citta Hobart Pty Ltd v Cawthorn (2022) 276 CLR 216; [2022] HCA 16

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

DN v Secretary, Department of Communities and Justice (2023) 113 NSWLR 257; [2023] NSWCA 321

DRJ v Commissioner of Victims Rights (No 2) (2020) 103 NSWLR 692; [2020] NSWCA 242

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

EMG v Guardianship and Administration Board of Victoria [1999] NSWSC 501

German v State Trustees Ltd [2023] VSC 7

GS v MS [2019] WASC 255

Insight Vacations Pty Ltd v Young (2011) 243 CLR 149; [2011] HCA 16

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

Mobil Oil Australia Pty Ltd v Victoria (2002) 211 CLR 1; [2002] HCA 27

P v NSW Trustee and Guardian [2015] NSWSC 579

Pearce v Florenca [1976] HCA 26; (1976) 135 CLR 507 at 518; [1976] HCA 26

QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 279 CLR 148; [2023] HCA 15

R v Oregan; Ex parte Oregan [1957] HCA 18; (1957) 97 CLR 323

Union Steamship Co of Australia Pty Ltd v King (1988) 166 CLR 1; [1988] HCA 55

ZGM v ZGN [2018] NSWCATAP 101

South Western Sydney Local Health District (First Respondent)

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. This appeal is about 87-year-old YKI who has been diagnosed with severe dementia. Since February 2025, YKI has been living in an aged care facility in western Sydney. In these reasons we refer to YKI as "the Mother".
2. In January 2024, the Guardianship Division of the NSW Civil and Administrative Tribunal (NCAT) made an initial guardianship order in respect of the Mother and appointed her son, YKL, as guardian (the initial guardianship order). In July 2024 at the request of the South Western Sydney Local Health District (the Local Health District), NCAT reviewed and varied that order and appointed the NSW Public Guardian as the Mother's guardian (the July 2024 order).
3. In January 2025, the Local Health District made a further application seeking review of the July 2024 order, together with an application seeking a financial management order in respect of the Mother. Following a hearing on 6 February 2025, NCAT:

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

(2) reviewed and varied the guardianship order made in July 2024.

1. YKL (the appellant) appeals from the two decisions made on 6 February 2025 (the decisions under appeal). He claims that in February 2025, the Mother was a resident of South Australia and therefore NCAT lacked jurisdiction to make that order. He contends that for the same reason NCAT lacked power to make the initial guardianship order in January 2024 and that order was void. In addition, the appellant contends that because the South Australian Civil and Administrative Tribunal made a reviewable guardianship order in respect of the Mother in December 2024, NCAT lacked jurisdiction to renew and vary the July 2024 order.
2. We explain below our reasons for dismissing the appeal.

1. The decisions the subject of the appeal are "internally appealable decisions". The appellant has a right to appeal those decisions on any "question of law" or, with the leave of the Appeal Panel, on any other ground: Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), s 80(2)(b).
2. The appellant contends that the decisions under appeal raise the following questions of law:

(1) whether, because the Mother was purportedly a resident of South Australia, NCAT lacked jurisdiction to make the initial guardianship order and/or the decisions under appeal;

(2) whether, because of the reviewable guardianship order made by the South Australian Civil and Administrative Tribunal, NCAT lacked jurisdiction to renew and to vary the July 2024 order;

(3) whether the Tribunal appeared to be biased because:

(a) it refused to permit Mr N to give evidence; and

(b) it accepted the evidence given by Mr M who allegedly has an extensive criminal history.

Ground 1: the jurisdiction issue, the Mother's place of residence

1. The appellant contends that the Tribunal lacked jurisdiction to make the decisions under appeal because the Mother was a resident of South Australia when those decisions were made. He contends that GS v MS [2019] WASC 255 is authority for the proposition that NCAT cannot make an order under the Guardianship Act 1987 (NSW) (the NSW Guardianship Act) in respect of a person who is not a resident of NSW.
2. The Mother had apparently been living in South Australia for thirty years before the initial guardianship order was made. When she started living in NSW is a fact in dispute in this appeal.
3. In support of his claim that the Mother was a resident of South Australia when NCAT made the initial guardianship order and the decisions under appeal, the appellant relies on:

(1) A residential tenancy agreement between the Mother and the South Australian Housing Trust, dated 5 August 2017, in respect of an apartment located in Adelaide (the Adelaide apartment);

(2) A statement issued by the South Australian Housing Trust, said by the appellant to evidence that the Mother was paying rent for the Adelaide apartment;

(3) A printout from the Australian Electoral Office website which states that the Mother is enrolled to vote in the federal division of Adelaide, South Australia;

(4) The decision made by the NSW Public Guardian in October 2024 to move the Mother to South Australia noting that the Mother had expressed a preference to live in that state.

1. The appellant claims that the only reason the Mother was physically present in Sydney when the decisions under appeal and the initial guardianship order were made was to attend medical appointments. He claims that she was otherwise a resident of South Australia.
2. The Local Health District disputes the claim that the Mother was a resident of South Australia when the initial guardianship order and the decisions under appeal were made. The Local Health District points out that the progress notes of the Mother's admission to Canterbury Hospital, Sydney in May 2024 record that the appellant said he had brought the Mother to live with him in Sydney. In addition, the Local Health District points out that in the application to NCAT seeking an initial guardianship order, the appellant gave his Sydney address as the Mother's "current location" and postal address.

1. Before considering the jurisdictional question raised in this appeal, we set out some background facts relevant to the Mother's place of residence taken from the reasons for the decisions under appeal (the Reasons), together with the reasons for the decision to make the initial guardianship order (the January 2024 Reasons), and the reasons for making the July 2024 order (the July 2024 Reasons).

1. In January 2024, following an application made by the appellant, the Tribunal made an initial guardianship order for a term of 12 months and appointed the appellant as the Mother's guardian.
2. At [1] of the January 2024 Reasons, the Tribunal said that the Mother "is currently living with her son [the appellant], in Sydney". At [14], [16], the Tribunal said that in November 2022, March 2023 and August 2023, the Mother was admitted to Canterbury Hospital, Sydney and the reports of those admissions recorded that at that time she was living with the appellant. At [15], the Tribunal recorded that the appellant and his family were "increasingly struggling with [the Mother's] care needs". At [30], the Tribunal said that the appellant considered the Mother should move to residential aged care in the reasonably foreseeable future and that it is likely that she "will oppose this and become aggressive".

1. In July 2024, following an application made by the Local Health District, the Tribunal renewed and varied the initial guardianship order. In that order, the Tribunal appointed the NSW Public Guardian as guardian for the Mother.
2. In the July 2024 Reasons, the Tribunal noted that on three occasions between 16 May 2024 and July 2024, the Mother was admitted to Bankstown Hospital, Sydney, because of "carer stress" and on each occasion she was removed from the hospital by the appellant against medical advice: at [4], [11], [31].
3. A week before the hearing to review the initial guardianship order, the Mother was readmitted to Bankstown Hospital. On the day of that hearing, 14 July 2024, she was an in-patient at that hospital: July 2024 Reasons at [4].
4. At [13], the Tribunal recorded that in a report dated 24 June 2024, a nurse practitioner noted that the Mother previously owned a house in Adelaide where she was living with [her daughter and a son (not the appellant)] until January 2024. Family members in Adelaide reportedly contacted the NSW Ageing and Disability Commission on 7 June 2024 and "raised concerns about neglect and abuse by the appointed guardian".
5. The Tribunal found that the appellant was unable to discharge the functions conferred by the initial guardianship order and appointed the NSW Public Guardian as the Mother's guardian. At [32], the Tribunal said the appellant:

"[I]s demonstrably unable to understand or accept the extent of [the Mother's] condition and the complex needs that she has to ensure her safety and the safety of those around her. His inability to objectively heed and consider medical advice regarding his mother's diagnosed condition was reflected in his evidence before the Tribunal and in his conduct in discharging [the Mother] on three recent occasions contrary to medical advice."

1. In February 2025, following a further application made by the Local Health District, the Tribunal renewed and varied the July 2024 order, reappointed the Public Guardian for a period of two years and, in addition to the functions conferred under the July 2024 order, gave the NSW Public Guardian an access function, to decide "what access [the Mother] has to others and the condition of access". In addition, the Tribunal made a financial management order in respect of the Mother and committed the management of her estate to the NSW Trustee and Guardian (the NSW Trustee).
2. At [3], the Tribunal noted that in October 2024, the Mother was discharged from Bankstown Hospital to a Sydney aged care facility. Four days later, without the consent of the NSW Public Guardian, the appellant removed the Mother from that facility and drove her to Adelaide. Initially, the Mother stayed with a daughter and from 16 October 2024 to early December 2024, lived in her Adelaide apartment: Reasons at [11].
3. At [12], the Tribunal recorded that the NSW Public Guardian made an application to the SACAT seeking a guardianship order. In that application, the NSW Public Guardian said that the Mother's stated preference was to return to live in South Australia. At a hearing on 19 December 2024, SACAT made a reviewable guardianship order for a period of 12 months and appointed the South Australian Public Advocate (the South Australian equivalent of the NSW Public Guardian) as guardian for the Mother. In addition, SACAT dismissed an application made by the appellant seeking to be appointed as the Mother's administrator (financial manager). In reasons for that decision, SACAT recorded that it was "uncertain as to [the Mother's] whereabouts" and whether she had been served a notice of the hearing.
4. Apparently, the appellant drove the Mother back to Sydney about three weeks before the SACAT hearing: at [14]. At the request of the NSW Public Guardian, on 24 December 2024, NSW Police attended the appellant's Sydney home to check on the Mother's welfare. At the request of the NSW Police, the Mother was transported by ambulance to Lidcombe Hospital, Sydney: Reasons at [14].
5. The Mother remained an in-patient at Lidcombe Hospital on the day of the hearing when the decisions under appeal were made, 6 February 2025.
6. Following a decision made by the NSW Public Guardian, the Mother moved to a Sydney residential aged facility on 24 February 2025. On the day of the appeal hearing, she was still living at that facility.

Does NCAT have jurisdiction to determine applications under the NSW Guardianship Act in proceedings where one party, or more, is not a resident of NSW?

1. The appellant and the Mother were parties to the proceedings to determine the application for an initial guardianship order, the application to review that order and the application to review the July 2024 order, and the application for a financial management order: NSW Guardianship Act, s 3F.
2. At all material times, the appellant was a resident of NSW.
3. For current purposes we will assume but not decide that the Mother was a "resident" of South Australia when the decision under appeal and the initial guardianship order was made. (See, discussion of meaning of the word "resident" in the Constitution in Australasian Temperance and General Mutual Life Assurance Society Ltd v Howe [1922] HCA 50; (1922) 31 CLR 290 (Howe) and R v Oregan; Ex parte Oregan [1957] HCA 18; (1957) 97 CLR 323 at p 332). In Howe, Knox CJ and Duffy J said at p 296 that s 75(iv) seemed to assume that a resident of one State cannot at the same time be a resident of another State and referred to the dictionary meaning of the term "resident" as being a natural person, one "who resides permanently in a place": at p 295. Higgins J emphasised that the expression is "resident of a State" and not resident in a State, and that the language of s 75(iv) "obviously implies some close connection between the resident and the State, some exclusive link with some one State which cannot at the same time be had with any other State": at p 327. Higgins J went on to say that the residence of an individual, "is where he sleeps and lives". Starke J said the word "resident" in its primary meaning signifies a natural person who lives, dwells and has his home in some country or place: at p 337.
4. As we explain below, GS v MS is not, as the appellant contends, authority for the proposition that NCAT lacks jurisdiction to determine applications made under the NSW Guardianship Act in proceedings where parties to those proceedings are residents of different states.

1. Central to the determination of the jurisdictional question raised by the appellant is whether in making or reviewing a guardianship order, or making a financial management order, NCAT is exercising judicial power. In Burns v Corbett (2017) 265 CLR 304; [2018] HCA 15 at [43], [55], [64], [119], the High Court concluded that a State Parliament lacks legislative capacity to confer on a State tribunal that is not a court of the State within the meaning of s 77(ii) and s 77(iii) of the Constitution, judicial power with respect to any matter of a description in s 75 or s 76 of the Constitution. See also Citta Hobart Pty Ltd v Cawthorn (2022) 276 CLR 216; [2022] HCA 16 at [1]. The matters listed in ss 75 and 76 of the Constitution, include any matter 'between residents of different States':

s 75(iv). 2. In Burns v Corbett, the High Court held that, not being a 'court' within the meaning of Chapter III of the Constitution, NCAT could not exercise jurisdiction to determine a complaint it had been referred under the Anti-Discrimination Act 1977 (NSW) between parties who were residents of different States.

1. In GS v MS, Quinlan CJ of the Supreme Court of Western Australia considered an appeal from a decision made by NCAT's Western Australian equivalent, the State Administrative Tribunal Western Australia (SAT). The question raised on appeal was whether SAT had authority to determine an application brought under s 40 the Guardianship and Administration Act 1990 (WA) (the WA Guardianship Act) for a guardianship order and an administration order. In the decision under appeal, SAT dismissed for want of jurisdiction an application for an administration order and an application for an order that an attorney file records and accounts. The person the subject of each application, GS and GS's son and attorney, RS, were residents of Western Australia. The applicant, GS's daughter, MS, was a resident of NSW. GS, RS and MS were parties to the proceedings initiated by each application.
2. At [33], Quinlan CJ referred to the "central holding" of Burns v Corbett that a State Parliament could not confer on an executive agency of the State, adjudicative authority in respect of any matter listed in s 75 and s 76 of the Constitution, that is, matters which involve or call for the exercise of "judicial power".
3. The Chief Justice identified the primary question raised by the appeal as being whether the WA Guardianship Act, "in empowering the Tribunal to make guardianship orders and administration orders, confers on the Tribunal judicial power?". The Chief Justice concluded that the answer to that question was "no".
4. At [60] the Chief Justice said that the "unique and essential function" of judicial power is the "quelling of controversies about legal rights and legal obligations through ascertainment of the facts, the application of the law and the exercise, where appropriate, of judicial discretion".
5. The Chief Justice said at [77], that SAT's power to make guardianship and administration orders "falls clearly on the 'administrative' side of the 'borderland' of judicial and administrative functions". At [78], he observed that an application for a guardianship order or an administration order (the equivalent of a financial management order made under the NSW Guardianship Act) lacks many of the features that are generally to be found in (and support the characterisation of a powers as) judicial power.
6. The Chief Justice said that even if, contrary to his view an application to SAT for guardianship and administration orders involved the exercise of judicial power, the constitutional limitation identified in Burns v Corbett is not engaged because the relevant matter is not "between residents of different States". At [120] he explained that an application to appoint guardians and administrators "being protective in nature, is not inter partes [between the parties] in the ordinary sense of that expression ... in truth ... there are no 'sides' in the applications at all".
7. At [104], the Chief Justice concluded that the provisions of the WA Guardianship Act, giving SAT power to make guardianship and administration orders do not confer judicial power on SAT or, put in the context of s 75(iv) of the Constitution, "an application under s 40 for a guardianship order or an administration order does not involve a 'matter' within the meaning of that provision". At [29], the Chief Justice said that whether SAT has jurisdiction to determine the application for a guardianship order and an administration order under the WA Guardianship Act "does not depend upon the residence or status of the various 'parties'".
8. In German v State Trustees Ltd [2023] VSC 7, the Supreme Court of Victoria adopted and applied Quinlan CJ's analysis. At [34], [35], Richards J, said that the provisions of the Guardianship and Administration Act 1986 (Vic) which identify the persons who are entitled to notice of an application for a guardianship or administration order "set up a procedure for the Tribunal to ascertain the views and wishes of relevant persons, which it must consider before making a decision on an application". His Honour went on to say:

35 "That does not mean, however, that the application is between those persons. Rather, it is about the proposed represented person - whether that person needs a guardian or administrator and, if so, who should be appointed and with what powers".

...

37 "The non-adversarial nature of an application for a guardianship or administration order is not altered if it happens that the application is made against the background of a family dispute, or if family members take sides in the proceeding. That is what occurred in this case, and it is understandable that Mr German felt that he was involved in a dispute between parties at the hearing on 15 January 2018 and at subsequent hearings. However, the Tribunal's function was not to resolve that dispute. It was solely concerned with whether guardianship and administration orders should be made in relation to EG and, if so, what those orders should be."

The exercise of functions under the NSW Guardianship Act does not involve the exercise of judicial power

1. While different, the WA Guardianship Act and the NSW Guardianship Act share many common features. Each gives the relevant Tribunal power to appoint a substitute decision-maker, a guardian to manage a person's personal affairs, and power to appoint a substitute decision-maker, a manager (NSW Guardianship Act) or an administrator (WA Guardianship Act) to manage a person's financial affairs. Each Act instructs the relevant Tribunal to observe the principle that the interests of the person the subject of the application is their primary concern/consideration: WA Guardianship Act, s 4(2), NSW Guardianship Act, s 4(a). Neither gives the relevant Tribunal power to enforce their own orders.
2. We agree with Quinlan CJ's analysis. Given the similarities between the WA Guardianship Act and the NSW Guardianship Act, we adopt that analysis. It follows that even if the Mother was a resident of South Australia when the initial guardianship order and the decisions under appeal were made, NCAT would not lack power to determine the subject applications because two of the parties to those proceedings were from different states.

Does the SACAT order deprive NCAT of power to review the July 2024 order?

1. The alternative argument made by the appellant is that the decision made by SACAT on 19 December 2024 to make a reviewable guardianship order in respect of the Mother (the SACAT order) deprived NCAT of jurisdiction to determine the application for review of the July 2024 order.
2. That order was made under the Guardianship and Administration Act 1993 (SA) (the SA Guardianship Act). By that order, SACAT appointed the South Australian Public Advocate as guardian for the Mother. In addition, SACAT dismissed an application by the appellant seeking to be appointed as the Mother's administrator (financial manager). SACAT recorded that it was "uncertain as to [the Mother's] whereabouts" and whether she had been served a notice of the hearing.
3. The SA Guardianship Act is broadly equivalent to the WA Guardianship Act and the NSW Guardianship Act.

Recognition of guardianship and managers appointed under corresponding law

1. Headed "Reciprocal arrangements", Pt 5A of the NSW Guardianship Act provides:

Part 5A Reciprocal arrangements

48A Corresponding law

In this Part, corresponding law means a law in force in another State, a Territory, another country or part of another country that is declared by the regulations to be a corresponding law for the purposes of this Part.

48B Recognition of guardians and managers appointed under corresponding law

(1) A person who, under a corresponding law, is appointed as -

(a) the guardian of another person, or

(b) the manager of the estate of another person,

may apply to the Tribunal for recognition of his or her status as such.

(2) The Tribunal must recognise the applicant if satisfied that the applicant has been so appointed.

(3) On recognition, the applicant is taken to be appointed under this Act as guardian or manager of the estate (as the case may be) of the other person.

(4) However, the applicant -

(a) is not to exercise a function under this Act unless it is a function of a kind authorised by the terms of his or her appointment under the corresponding law, and

(b) is not to exercise a function authorised by the terms of his or her appointment under the corresponding law unless it is a function authorised by this Act.

(5) The applicant's recognition may be reviewed, varied and revoked as if it were an appointment under this Act.

(6) As soon as practicable in each case, the Tribunal must notify the appropriate authority in the relevant country, State or Territory of -

(a) a recognition under this section, and

(b) any subsequent revocation of the recognition, and

(c) any other ion taken by the Tribunal in relation to the recognition.

(7) The regulations may make provision with respect to the application of this Act in respect of recognition under this Part.

1. The SA Guardianship Act is declared to be a corresponding law for the purpose of s 49A of the NSW Guardianship Act: Guardianship Regulation 2016 (NSW), cl 16(f).
2. The SA Guardianship Act permits SACAT to recognise the appointment of guardians in other Australian States and Territories: SA Guardianship Act, s 34.
3. Those in Pt 5A are the only provisions in the NSW Guardianship Act which refer to NCAT's powers in relation to guardians and financial managers appointed under a corresponding law. As is apparent from its terms, s 48B of the NSW Guardianship Act does not prohibit NCAT from exercising the power to make a guardianship or financial management order where the person the subject of the proposed order is the subject of a guardianship or financial management order made under a corresponding law. Section 48B of the NSW Guardianship Act merely authorises NCAT, on the application of a person appointed as a guardian or manager under a corresponding law, to recognise that appointment if satisfied that the applicant guardian or manager was appointed under the corresponding law.
4. In EMG v Guardianship and Administration Board of Victoria [1999] NSWSC 501, Young J considered the operation of s 48B of the NSW Guardianship Act. Young J said that if a person appointed as guardian under a corresponding law made an application under s 48B(1) of the NSW Guardianship Act, by s 49B(2) of that Act, the Tribunal was required to "recognise not the order but the applicant and then the applicant is taken to be appointed under this Act as guardian". At [54], Young J explained that recognition gives the applicant guardian or manager the same powers as if they were appointed in NSW.
5. The NSW Guardianship Act neither expressly nor by implication prohibits NCAT from making a guardianship order in respect of a person who is the subject of a guardianship order made under a corresponding law. The existence of such an order may be a factor relevant to the exercise of the discretion to make a guardianship order under s 14(2) of the NSW Guardianship Act but it does not operate to deprive NCAT of power to make a guardianship order.
6. The question of whether NCAT was required to recognise the South Australian Public Advocate as the Mother's guardian did not arise in the decisions under appeal. The South Australian Public Advocate did not apply to be recognised as guardian for the Mother under s 48B of the NSW Guardianship Act.

Extra territorial operation of the NSW Guardianship Act

1. It does not follow from the above analysis that NCAT had power to make the decisions under appeal. As we explain below, there must be a sufficient connection between the person the subject of those orders, the Mother, and NSW.

1. In DRJ v Commissioner of Victims Rights (No 2) (2020) 103 NSWLR 692; [2020] NSWCA 242 (DRJ (No 2)), Bell P (as the Chief Justice then was) observed that often "no guidance is given at all by legislatures as to the territorial reach and operation of a particular statute". The NSW Guardianship Act is one such an example. That Act does not state that the person the subject of an application made under that Act (the subject person) must be resident or present in NSW when that application is made and determined. Nor does it state that the applicant or proposed substitute decision-maker must be resident or present in the NSW.
2. The Parliament of NSW and other State legislatures may pass laws with extraterritorial operation and effect if there is a sufficient territorial nexus with the state enacting the relevant legislation: DRJ (No 2) at [20] citing Mobil Oil Australia Pty Ltd v Victoria (2002) 211 CLR 1; [2002] HCA 27; Union Steamship Co of Australia Pty Ltd v King (1988) 166 CLR 1; [1988] HCA 55. However, extra-territorial legislative competence is not unlimited; there must be a "real connexion - even a remote or general connexion - between the subject matter of the legislation and the State": DN v Secretary, Department of Communities and Justice (2023) 113 NSWLR 257; [2023] NSWCA 321 at [42]; Pearce v Florenca [1976] HCA 26; (1976) 135 CLR 507 at 518; [1976] HCA 26; DRJ (No 2) at [128]-[133].
3. But the question raised in this appeal is not whether the NSW Parliament has legislative capacity to make a law providing for applications to be made to NCAT in respect of a person who is the subject of a guardianship order made under a corresponding law and/or is a resident of another state. Rather the question is whether the NSW Guardianship Act permits NCAT to determine an application for a guardianship order made under that Act in respect of a person who is the subject of a guardianship order made under a corresponding law and/or is resident of another state.
4. Where, as here, a NSW statute offers no guidance as to its territorial reach, the default position is that set out in s 12 of the Interpretation Act 1987 (NSW): DRJ (No 2) at [40]. Section 12 states:

12 References to New South Wales to be implied

(1) In any Act or instrument -

(a) a reference to an officer, office or statutory body is a reference to such an officer, office or statutory body in and for New South Wales, and

(b) a reference to a locality, jurisdiction or other matter or thing is a reference to such a locality, jurisdiction or other matter or thing in and of New South Wales.

(2) In any Act or instrument, a reference to a body constituted by or under an Act or instrument need not include the words "New South Wales" or "of New South Wales" merely because those words form part of the body's name or title.

1. However, as explained by Bell P in DRJ (No 2) at [8], s 12 of the Interpretation Act provides limited assistance about the geographical or territorial reach of a NSW statute, principally because that provision is subject to the contrary intention appearing in either the Interpretation Act itself or in the statute being construed: Interpretation Act, s 5(2). A further difficulty is that the "contrary intention" may appear not only expressly but also by implication.
2. At [10], Bell P explained that contrary legislative intention sufficient to rebut or displace the operation of s 12 of the Interpretation Act may be evinced by any of the following:

(i) "express words";

(ii) "necessary implication";

(iii) "reading the Act as a whole";

(iv) "if the legislative purpose would otherwise be frustrated"; or

(v) "if the contrary intention is indicated by 'the object, subject matter or history of the enactment".

(Citations omitted)

1. Describing s 12 of the Interpretation Act as being at "best a starting point",

Bell P said the same may be said for certain common law principles of statutory interpretation, sometimes expressed as "presumptions". These include:

(i) "the presumption that legislation does not apply to persons and matters outside the territory to which the legislation extends, i.e. that it does not have extraterritorial application or operation";

(ii) "the converse presumption that legislation applies both to locals and foreigners, and local and foreign matters, within the territory to which the statutory instrument extends"; and

(iii) "the presumption that legislative provisions do not apply to cases which, according to conflict of laws rules, are governed by foreign law."

(Citations omitted)

1. At [35], Bell P explained that where the legislature gives no guidance as to the geographical limitation of the relevant statute it is necessary to resort to concepts such as the "hinge" around which the statute operates, citing Insight Vacations Pty Ltd v Young (2011) 243 CLR 149; [2011] HCA 16 at [30].
2. At [157] of DRJ (No 2), Leeming JA made the same point and explained:

"[I]n cases where no express provision has been made connecting the statute to New South Wales, the task is to identify the central focus or central conception of the legislation, and require that to bear a connection with New South Wales. One does so as a matter of construction, based on subject matter and scope, and with a regard to internal indications and to avoiding improbable and absurd outcomes. It will be relevant to have regard to the purpose of the statute, the likelihood that the statutory purpose will be evaded if made to depend upon something readily altered at the instance of the parties, and the need to avoid an unduly restrictive approach whereby more than one factum is required to bear a connection."

1. The NSW Guardianship Act is to be construed so as to further its legislative purpose: Interpretation Act, s 33. The long title of that Act is "an Act with respect to the guardianship of persons who have disabilities". That Act does not contain an objects clause, however, it is apparent that its central concern is people with disability (as that expression is defined by NSW Guardianship Act, 3(2)). That concern is reflected in s 4 of the NSW Guardianship Act which instructs that it is the duty of everyone exercising functions under that Act to observe a series of principles. They include the principles that the welfare and interests of people with disability should be given paramount consideration (s 4(a)); the freedom of decision and freedom of action of such persons should be restricted as little as possible

(s 4(b)); and that such persons should be protected from neglect, abuse and exploitation (s 4(g)). The obligation to have regard to these principles is reinforced by cl 5(1) of Sch 6 to the NCAT Act which provides that, when exercising its "Division functions" for the purposes of the NSW Guardianship Act, the Tribunal is under a duty to observe the principles set out in s 4 of the that Act: P v NSW Trustee and Guardian [2015] NSWSC 579 at [53]- [58]; ZGM v ZGN [2018] NSWCATAP 101 at [39]. 2. Notwithstanding that the central concern of the NSW Guardianship Act is people with disability, NCAT does not have power at large to determine an application for a guardianship or financial management application made under that Act even where the subject of that application is a person with disability. There must be a connection between that person and NSW. 3. Without considered argument this is not the occasion to determine the scope of the necessary geographical connection between the person the subject of an application under the NSW Guardianship Act and NSW. Whether that connection is established will turn on the facts of the specific case. 4. We find that there was a sufficient territorial connection between NSW and the Mother when NCAT made the initial guardianship order and the decisions under appeal. 5. We consider significant, as the Reasons record and the appellant agrees, that:

(1) The Mother was physically present in NSW when the application for an initial guardianship order (January 2024), the application seeking review of that order (29 June 2024), the application seeking review of the July 2024 order (8 January 2025), and the application for a financial management order (2 January 2025), were lodged with NCAT.

(2) The Mother was physically present in NSW when the Tribunal heard and determined each of those applications (18 January 2024, 12 July 2024 and 6 February 2025).

(3) In the application for the initial guardianship order, the Son gave his home in Sydney as the Mother's "current location" and residential address.

(4) In the period between the lodging of the application for an initial guardianship order and the making of the decisions under appeal, apart from the six weeks she spent in Adelaide, the Mother was continuously present in NSW.

1. While difficult on the available evidence to pinpoint when the Mother commenced living with the appellant in Sydney, the reports of the appellant and his family suffering "carer's stress", together with the evidence of the Mother's multiple admissions to Sydney hospitals from late 2022, tend to indicate that it was probably in or about mid-2023.
2. The appellant's claim that the only reason the Mother was in NSW before the initial guardianship order was made was to attend medical appointments is unsupported and inconsistent with the available evidence. The medical records considered by the Tribunal which made the initial guardianship order are replete with references to the Mother living with the appellant and his family: see, for example, January 2024 Reasons at [1], [15] and [29].
3. The fact that in February 2025 the Mother remained a party to a residential tenancy agreement entered into in 2017 in respect of the Adelaide apartment does not establish, as the appellant appears to argue, that she has been living there since 2017. Indeed, in the hearing where the decisions under appeal were made, when asked why that agreement was not terminated when the Mother "moved to Sydney in 2023", the appellant said it was because the Mother "liked to go to Adelaide from time to time, so she kept it": Reasons at [63].
4. That the Mother is reported to have said to the NSW Public Guardian after the July 2024 order was made that she would prefer to live in South Adelaide does not assist the appellant. At best it establishes that at that time, that the Mother had expressed a preference to return to South Australia. It does not support a finding that she was a resident in South Australia, less still that there was not a connection, or sufficient connection, between the Mother and NSW.
5. Finally, the February 2025 printout from the website of the Australian Electoral Office, which stated that the Mother was enrolled to vote in the federal division of Adelaide, South Australia, at best establishes that at some point in time the Mother gave that address to the Australian Electoral Office as her residential address. Similarly, the notice sent by the Sheriff of South Australia to the Mother at that Adelaide address in October 2024 that she must attend for jury service at best establishes that the Sheriff understood that to be the Mother's residential address.
6. We find that there was sufficient territorial connection between the Mother and NSW when the application for an initial guardianship order, the application seeking review of that order, the application seeking review of the July 2024 order, and the application for a financial management order, were lodged and determined.

Ground 2: whether the Tribunal appeared to be biased

1. The appellant contends that the Tribunal appeared to be biased because:

(1) it refused to permit a neighbour, Mr N, to give evidence; and

(2) it accepted the evidence given by one of the Mother's sons, Mr M, who allegedly has an extensive criminal history.

1. The Tribunal was obliged to afford all parties, including the appellant, procedural fairness: NCAT Act, 38(2). That obligation required the Tribunal to determine the application for review of the July 2024 order and the application for a financial management order 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) 205 CLR 337; [2000] HCA 63 (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) 268 CLR 76; [2019] HCA 50 (CNY17) at [56]; Isbester v Knox City Council (_2_015) 255 CLR 135; [2015] HCA 20 at [12]; QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 279 CLR 148; [2023] HCA 15 (QYFM) at [37].
3. A finding of apprehended bias is not to be reached lightly: Ebner at [344]; Isbester at [20]. The double-might test is objective. It is concerned with "possibility (real and not remote), not probability": Ebner at [7]; QYFM at [37].

1. Mr N is apparently a neighbour of the appellant.
2. Apart from recording that Mr N attended the hearing before the Tribunal on 6 February 2025, the Reasons make no mention of Mr N, less still that he or the appellant requested the Tribunal that he be permitted to give evidence in the proceedings.
3. In orders made on 4 March 2025, a differently constituted Appeal Panel required the appellant to provide a transcript and a sound recording of the hearing at first instance if, in the appeal, he intended to rely on something that happened at that hearing. He failed to do so. Therefore, it is not possible to determine the premise on which this ground rests.

1. Mr M gave evidence and made submissions in the hearing before the Tribunal in February 2025. Mr M is one of the Mother's four children and lives in Adelaide. The Reasons record that Mr M holds a poor opinion of the appellant and said in the hearing that the appellant did not give him or his siblings any information about their mother; the appellant is "a liar ... he just lies all the time"; that the appellant "has taken all my mother's money, all the time. He is just a liar. We don't trust this brother at all": Reasons at [40], [65].
2. There are several difficulties with this ground. First, there is no evidence to support the appellant's claim that Mr M had an extensive criminal history.
3. Second, even if it is assumed that Mr M had an extensive criminal history and this fact was known to the Tribunal, it does not follow that the hypothetical observer might reasonably apprehend that the Tribunal might not bring an impartial mind to the resolution of the question it was required to decide, that is, whether the appellant was a suitable person to act as the Mother's guardian and financial manager.
4. While not a lawyer, the hypothetical observer would:

(1) have a broad understanding of the relevant statutory provisions which govern the Tribunal's powers and procedures;

(2) know that one of the issues the Tribunal was required to decide was whether the appellant was a suitable person to act as the Mother's guardian and financial manager;

(3) understand that this would require the Tribunal to consider whether if appointed to these roles, the appellant would be likely to act with integrity and in the best interests of the Mother;

(4) understand that in the Guardianship Division, it is common practice to permit family members of the person the subject of the application to make submissions and give evidence, even where they are not a party to proceedings;

(5) understand that it is not the role of the Tribunal to act as gatekeeper to prevent a witness whom it suspects has or might give untruthful evidence from giving evidence; and

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

1. Attributed with that knowledge, and being reasonable, we are not persuaded that the hypothetical observer might reasonably apprehend that because the Tribunal permitted Mr M to make submissions and give evidence unfavourable to the appellant, that the Tribunal might not bring an impartial mind to the question of whether the appellant was a suitable person to act as the Mother's guardian and financial manager.
2. This ground of appeal must fail.

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.