YKW v Public Guardian [2025] NSWCATAP 112 | Case summary

YKW v Public Guardian [2025] NSWCATAP 112 | Case summary | Zoe

[61]

The Son is a 29-year-old man who lives in supported independent living accommodation (the SIL accommodation). His father and mother separated and divorced some years ago. The Father remarried the Stepmother. The Son has two adult siblings, a brother and a sister who were involved in the Tribunal's hearing on the review (the review hearing), but were not involved in this appeal.
In the Tribunal's reasons for its decision dated 31 July 2024 (Reasons) at [2]-[3], it is stated that the Son is an important and much-loved member of his family including his extended family on both his maternal and paternal sides. There are complex family dynamics within the immediate family and there are conflicting views within the family about the best way for the Son's support needs to be met.
There have been several hearings and orders made by NCAT relating to the Son since 2013, both in the GD of NCAT and in the Administrative and Equal Opportunity Division of NCAT (AEOD).
On 17 March 2022 the GD, on a review of a prior guardianship order, renewed the guardianship order for the Son and decided to reappoint the Public Guardian for two years to make decisions about his accommodation, health care, medical and dental consent, services and restrictive practices (chemical and environmental restraint). As part of the same orders, the Public Guardian was also given an access function to decide what access the Son has to others and the conditions of such access.
That order was due for review by 17 March 2024. The review commenced on 7 March 2024, when the GD conducted interlocutory hearings and made several directions regarding a timetable for the filing of material and submissions. The GD also made an order for the Son to be separately represented at the review hearing. By the operation of s 25(6) of the Guardianship Act, the previous order did not expire on 17 March 2024 but was extended until completion of the review.
On 4 April 2024, the Stepmother filed a formal request for a review of the 2022 guardianship order.
At the review hearing on 31 July 2024, the Tribunal considered both applications, that is the end-of-term review of the 2022 guardianship order, and the requested review of the same orders filed by the Stepmother. As the issues considered in each application were identical and the GD determined both applications in one set of orders, it is not necessary for this Appeal Panel to consider the two applications separately.

[62]

At the review hearing the Son did not participate due to his disability. Mr Streeter, solicitor, appeared at the hearing as the Son's separate representative. Mr Streeter was unable to obtain the Son's views and the Tribunal accepted that the Son was unable to make a contribution. We note this was consistent with previous findings of the Tribunal.
As to the parties to the review, we earlier noted the terms of s 25B of the Guardianship Act as to the persons who are entitled to seek a review. While not explicitly addressed in the Reasons, it would seem clear that the Tribunal considered the family members who were heard as parties to the review, including the Stepmother who requested a review, met the criteria in s 25B(d), that is, persons who, in the opinion of the Tribunal, have "a genuine concern for the welfare of the person under guardianship". There was evidence given, and submissions made, that family members involved in the proceedings (on both maternal and paternal sides)) care deeply for the Son and that they have a strong commitment and desire to support the Son (see e.g. Reasons at [40] - [41]).
The parties to the review proceedings agreed that the Son is "a person in need of a guardian" within the meaning of s 14(1) of the Guardianship Act and that the discretion to make a guardianship order should be exercised. Despite that agreement, the Tribunal below independently satisfied itself of those two matters (Reasons at [15] and [36]) and decided to make a guardianship order for a period of two years with the functions of access, accommodation, health care medical and dental consent and restrictive practices (chemical and environmental restraint).
However, the parties disagreed about who should be appointed as guardian and this became the focal point of the review hearing.
The separate representative supported the appointment of the Public Guardian.
The Father supported the appointment of the Stepmother as guardian arguing she was committed and well qualified. He was highly critical of the Public Guardian and the Son's accommodation service provider. He was also highly critical of the Mother, asserting she was not an appropriate person to be guardian.
The Mother submitted that she should be appointed guardian.
The Stepmother wanted to be appointed as guardian. Alternatively, she proposed that Mr X (paternal family accountant and friend) be appointed jointly with her, although her preference was to be sole guardian (Reasons at [37]).
The Tribunal found that neither the Stepmother nor the Mother, nor any other combination of family member and trusted advisers, were able to exercise the functions conferred by the proposed guardianship order and appointed the Public Guardian as the Son's guardian. This is the GD decision under appeal.

[68]

Some of the documents referred to above were filed late (that is, outside of time permitted by the Appeal Panel's procedural directions). Leave was granted for the late filing of the separate representative's submissions as there was no need for the other parties to respond to these submissions and we were satisfied that no prejudice to them was occasioned by the late filing.
Leave was granted for the late filing of the appellant's written submissions which were filed on 12 November 2024. We accepted the appellant's explanation that she had the assistance of a lawyer at that stage but was awaiting the lawyer's return from leave, and that had caused delay. None of the respondents objected to the late filing of the document, and we were satisfied that the respondents had sufficient time to consider the content of those written submissions and to respond (whether in writing prior to the appeal hearing, or orally at the appeal hearing), if they wished to do so.
As to the appellant's "Additional Statement of Evidence" filed 16 December 2024, it transpired at the appeal hearing that this bundle of material had not been served on all the parties. The Mother had not been served. The bundle of documents comprised emails and photos about events in November 2024, including emails exchanged in that month between the Stepmother and the Public Guardian in relation to the Son's care. That evidence was thus "fresh" or new evidence; it was not evidence that had been before the Tribunal at first instance, nor was it evidence that was reasonably available at the time of the review hearing on 31 July 2024. In the circumstances that the Mother had not been served with the fresh evidence, the appellant did not press for leave to file that evidence late, nor for the admission of that material as evidence in the appeal. Leave was refused for the late filing of the letters dated 6 December 2024 signed by Mr X and associated emails.
After those rulings were made, we proceeded to hear oral submissions from the parties. During the course of the appellant's oral submissions, it became apparent that she did seek to rely on the evidence that was before the Tribunal at first instance, despite that evidence not having been filed and served by her (or any other party) prior to the appeal hearing.
The Appeal Panel did not have that material before it. The appellant did not have any copies of that material with her to hand to the Tribunal, and in those circumstances, she did not press for admission of that material. We continued to hear oral argument from the parties and reserved our decision at the end of the hearing day.
On 20 December 2024 (the day following that appeal hearing), the appellant sent an email to the Registry, for the attention of the Appeal Panel, stating that she wished to submit two bundles of documents (being evidence that was before the Tribunal Member on 31 July 2024), and a sound recording of that hearing, because they were essential for her appeal. We decided to treat the (self-represented) appellant's email as an application to reopen the appeal. We made timetabling directions regarding the filing and service of evidence and submissions by all parties and the matter was listed for a further hearing half-day on 28 March 2025, at which time the parties would be heard as to whether the appeal should be reopened and if so, to hear from the parties on that reopening.

[70]

On 28 March 2025, the Public Guardian did not appear, indicating by email to the Registry that it did not wish to make any further submissions on the appeal. We decided to proceed in the Public Guardian's absence because it had been given an opportunity to appear. As before, the Son did not attend but was represented by the separate representative.
On her reopening application, the appellant asked for an opportunity to tender the material that was before the Tribunal at first instance, and an unofficial version of the transcript of the review hearing. She said that the only evidence relevant to the appeal was the evidence presented at the hearing on 31 July 2024, together with the written submissions that had been made to the Tribunal, and transcript of the hearing. She explained why that material was important to her appeal.
The Appeal Panel's procedural directions made on 4 September 2024 stated expressly that the appellant was to lodge with the Tribunal and give to the respondent "all the evidence given to the Tribunal at first instance on which it is intended to rely", and further, "if... what happened at the hearing at first instance is being relied on by the Appellant in the appeal, a typed transcript of the relevant parts of the hearing, together with the sound recording of the entire hearing".
The appellant's explanation for her failure to file and serve this material prior to the appeal hearing on 19 December 2024 was, in essence, that she had not fully understood the importance of the procedural directions made in September 2024, and therefore the procedural requirements of NCAT's Appeal Panel, and that she did not understand that she had to file and serve the evidence that was before the Tribunal at first instance before she could rely on that material in the appeal. None of the other parties objected to the reopening of the appeal on a limited basis, and the admission of the evidence that had been before the Tribunal at first instance, the submissions before the Tribunal, and a typed transcript of the review hearing.
The Appeal Panel has frequently observed that compliance with procedural directions is mandatory, not voluntary: see e.g. Watson v Chen [2022] NSWCATAP 44 at [27] - [32]. Parties are under a duty to co-operate with the Tribunal to give effect to the guiding principle (s 36(1)) and, for that purpose, to participate in the Tribunal's processes and to comply with directions and orders of the Tribunal: NCAT Act, s 36(3). The Tribunal's directions are written in plain English and nowhere do they say that compliance is voluntary. Relevantly, the requirement to comply with procedural directions is also made clear in NCAT's Guideline 1 - Internal Appeals which appellants are advised, in writing at the top of the first page of the Notice of Appeal, to read before completing the Notice of Appeal. Paragraph [65] of the Guideline states:

[72]

Noting the appellant's status as a non-legally trained self-represented party, we accepted her explanation for non-compliance with procedural directions, and that her mistaken belief was genuinely held. We accepted that the other parties would not be prejudiced by the reopening of the appeal on a limited basis (limited to a consideration of the evidence at first instance), and we considered that it would be in the interests of justice to allow the application to reopen the appeal on that limited basis: Urban Transport Authority of NSW v Nweiser (1992) 28 NSWLR 471. In determining what the interests of justice required in the circumstances of this case, we regarded the lack of objection by the other parties to the reopening of the appeal on a limited basis as important; we also placed significance on the protective character of the guardianship jurisdiction.
We gave leave for the admission of the evidence which was before the Tribunal on 31 July 2024, the submissions made before the Tribunal below on the review hearing, and for transcript of the hearing on 31 July 2024 provided by the appellant. While it is not an authorised transcript, none of the other parties objected to it and it was the best available. We were not provided with a copy of the sound recording.
From the appellant's Appeal Bundle, those documents were as follows: Items 1-10 (pp 3-432) - evidence; Item 21 (pp 512-568) - Transcript of the hearing on 31 July 2024; and Item 22 (pp 569-571) - appellant's submissions in response to the Mother's submissions. The other parties did not object to the admission of those materials and, with the exception of the Mother, did not seek to rely on any further evidence or written submissions of their own.
The Mother filed and served further material in response to the appellant's application to reopen the appeal. She filed written submissions (4 pages). Attachments numbered 1-8 to those submissions comprised documents which were not in evidence before the Tribunal below. Those documents were not admitted into evidence on the reopened appeal because they were not in evidence before the Tribunal at first instance, and the reopening of the appeal was on a limited basis only.

[79]

The appellant submits that the Tribunal acted in a procedurally unfair manner, and demonstrated bias against her by "prejudging" the review application. Authority indicates that we hear and determine a procedural fairness challenge prior to any other challenges: YHY v YHZ [2024] NSWCATAP 117 at [53].
In its practice and procedure, the Tribunal is required to give effect to the guiding principle of the NCAT Act and to facilitate the just, quick and cheap resolution of the real issues in the proceedings: NCAT Act, ss 36(1)-(2). In addition, in exercising its functions under the Guardianship Act, NCAT is required to observe the general principles listed in s 4 of that Act: Guardianship Act, s 4; NCAT Act, Sch 6, cl 5(1). Those principles include that the welfare and interests of the Son should be given paramount consideration, and that he be protected from neglect and abuse: Guardianship Act, ss 4(a), 4(g).
In determining proceedings before it, NCAT is under a duty to afford procedural fairness to the parties. Procedural fairness requires that NCAT give the parties a fair hearing, and that it be free from actual or apprehended bias. The term "procedural fairness" is synonymous with natural justice (the latter term is used in s 38(2) of the NCAT Act, which expressly requires the Tribunal to observe the rules of natural justice). Reflected in s 38(5)(c) of the NCAT Act, those rules require NCAT to take such measures as are reasonably practicable to "ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings".
It is well established that NCAT must conduct a hearing that gives procedural fairness to all parties, even taking into account the less formal nature of Tribunal proceedings (s 38(4) and (5) of the NCAT Act). What is necessary and appropriate to ensure a fair hearing depends on the particular facts and statutory context, rules of procedural fairness being flexible and adaptable so as to be appropriate in a given case so as to avoid practical injustice (see e.g. SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63 at [26], [29]).
The appellant raises a denial of procedural fairness as a ground of appeal. Whether there has been a breach of procedural fairness will generally raise a question of law: see e.g. Kudrynski at [52]; YHY v YHZ [2024] NSWCATAP 117 at [23].
Where there has been a breach of the requirement to afford the appellant procedural fairness, the question arises whether that error was material to the Tribunal's decision. That also raises a question of law. A breach of procedural fairness will constitute jurisdictional error, if the error is material to the Tribunal's decision: Nathanson v Minister for Home Affairs (2022) 276 CLR 80; [2022] HCA 26 (Nathanson) at [1], [33] (Kiefel CJ, Keane and Gleeson JJ). Materiality is established if the procedural unfairness (if any) deprived the appellant of a realistic possibility of a different outcome on the review application lodged in the GD.
We will address below the appellant's main submissions in relation to the asserted breaches of procedural fairness (or natural justice).

[81]

The appellant says that she was denied procedural fairness because the Public Guardian "failed to disclose essential information which the applicant requested in a submission dated 28 July 2024, in the likelihood of the public guardian being reappointed by default". In the absence of a lawful request, the Public Guardian (or other party) was under no obligation to produce documents to NCAT. As noted earlier, NCAT has no power to order the production of documents under the NCAT Act except through the issue of a summons under s 48. No summons was issued to the Public Guardian for the production of documents in the review proceedings.
It is clear from evidence before us that, as part of the interlocutory steps of the GD prior to the review hearing, the appellant was aware of the availability of NCAT's summons process and had the opportunity to request the issue of one or more summonses. During that preliminary phase, the GD made directions/orders which provided a timetable by which the Stepmother could request the issues of a summons to the Mother for the production of documents. No summons was issued to the Mother. No summons was issued to the Public Guardian.
At the review hearing, the appellant did not seek to cross-examine the Duty Guardian, appearing for the Public Guardian. She did not therefore seek to elicit any "essential information" from the Public Guardian through that route. The Public Guardian had filed and served a hearing report dated 24 July 2024 with background to the matter and a report dated 26 July 2024 which contained recommendations with a summary of decisions made by the Public Guardian under each guardianship function and a list of NDIS funded services that the Son receives. This evidence was filed prior to the hearing. It is clear from a review of the transcript of the hearing that the appellant did not seek to cross-examine the Public Guardian on the material which it had provided to the Tribunal and to the parties. This is not a case where the appellant sought to cross-examine a witness, and was denied a reasonable opportunity to do so.
There has been no breach of procedural fairness requirements on the part of the Tribunal below by reason that the Public Guardian failed to disclose "essential information" to the Tribunal prior to, and during, the review hearing. This argument is misconceived and must fail.

[83]

A further basis on which the appellant says she was denied procedural fairness was that the Public Guardian did not "actively participate" in the review hearing. It is not clear what the appellant meant when she contended that the Public Guardian did not "actively participate" in the review proceedings.
The Public Guardian was a party to the review hearing. Prior to the hearing, the Public Guardian participated in the GD's processes by providing evidence and written submissions as the existing guardian for the Son.
The Duty Guardian appeared at the review hearing. The Senior Member commenced the substantive part of the hearing by asking the Public Guardian to provide an overview of its recommendations or submissions in relation to the review of the 2022 guardianship order. The Public Guardian's recommendations included the following: the Son remains in need of a guardian; the access function continues to be required to ensure that the Son continues to have access to his paternal and maternal sides of the family in light of the ongoing family conflict; the accommodation function continues to be required noting the ongoing stakeholder disagreement about where the Son should live. The healthcare and dental consent functions also continued to be required to ensure that the Son has access to appropriate treatments and intervention. Informed consent to restrictive practices was also required. The Public Guardian also addressed the requirement for the services function and clarified the status of dental treatment for which the Son was on a long waiting list and had been consequently referred to an alternative Doctor (Tcpt, 31 July 2024, [148] - [196]).
There is nothing in the transcript of the hearing to indicate that the Public Guardian, as a party to the review and as the existing guardian, failed to provide assistance to the Tribunal in its decision-making task. Insofar as the appellant says that the Public Guardian's lack of "active participation" resulted in the Tribunal failing to afford her procedural fairness, this argument is misconceived and must fail.

[91]

The appellant further contends that she was denied procedural fairness because the Tribunal did not cross-examine the Public Guardian at the hearing about the soundness of the decisions it made as a guardian, particularly regarding the Son's accommodation, which the Appellant said gave rise to "neglect" and "isolation" of the Son. The appellant said the evidence she submitted proved her assertions.
The appellant does not assert that she was denied an opportunity to cross-examine the Public Guardian on the evidence it had given in the review proceedings. Rather, she complains that the Tribunal itself did not cross-examine the Public Guardian.
The Tribunal is not bound by the rules of evidence and "may inquire and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice": NCAT Act, s 38(2). The Tribunal may determine its own procedure in relation to any matter for which the NCAT Act or the NCAT Rules do not otherwise make provision: NCAT Act, s 38(1). The Tribunal may ask questions of a party or of a witness (whether or not that witness is a party); it has the powers to question a witness provided in s 46 of the NCAT Act, including the right to call any witness of its own motion. However, the Tribunal's powers as described do not mean that the Tribunal must ask questions of a party, or of a witness, or must ask questions on a particular topic. It is a matter for the Tribunal as to whether asking questions of a party, or witness, will assist it in its decision-making task.
We do not consider that there was a breach of procedural fairness requirements by the Tribunal by reason that the Tribunal "failed to cross-examine" the Public Guardian.
We said earlier that where there has been a breach of the requirement to afford an appellant procedural fairness, the question would then arise whether that error was material to the Tribunal's decision. Materiality is established if the procedural unfairness deprived the appellant of a realistic possibility of a different outcome on the decision under appeal. As we do not consider that the Tribunal failed to afford the appellant procedural fairness in any of the ways considered above, we do not need to consider the question of materiality of breach.

[95]

In the contexts of courts, the test for apprehended bias is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 (Ebner) at [6] (Gleeson CJ, McHugh, Gummow and Hayne JJ); Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48 at [11] (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ). It is sometimes referred to as the "double might test".
In Isbester v Knox City Council (2015) 255 CLR 135; [2015] HCA 20 (Isbester), in the context of a decision by a local council committee, Kiefel, Bell, Keane and Nettle JJ at [20], stated the test to be "whether a fair-minded lay observer might reasonably apprehend a lack of impartiality with respect to the decision to be made". Their Honours stated that this was largely a factual question "albeit one which it is necessary to consider in the legal, statutory and factual contexts in which the decision is made". Their Honours commented at [22] that the application of the principle in Ebner to decision-makers other than judges "must necessarily recognise and accommodate differences between court proceedings and other kinds of decision-making".
In contrast to actual bias, the test of apprehended bias is objective. It involves possibilities (real and not remote) not probabilities. The question is not whether the decision-maker would not actually bring an impartial mind to the matter. The question is whether the fair-minded lay observer might reasonably apprehend that to be the case. While the observer assessing possible bias is not a lawyer and is not assumed to have a detailed knowledge of the law, nonetheless the 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].
In her written submissions, the appellant states that, despite admitting to having an extensive volume of material to review, the Senior Member issued her decision within two hours of the hearing's conclusion, calling into question the thoroughness of her consideration. The appellant contends that this demonstrated bias on the part of the Tribunal towards her. The appellant does not further elaborate of her allegation of bias.
We do not accept the appellant's version of what occurred at the hearing, nor do we accept that what occurred at the hearing (or shortly thereafter by the issuing of Tribunal orders on the afternoon of 31 July 2024) establishes apprehended bias on the part of the Tribunal Member.
The transcript of the hearing on 31 July 2024 provided by the appellant does not support her version of what occurred at the hearing. The last page of the transcript appears at p 568 of the appellant's appeal bundle. The following exchange is recorded at the conclusion of the hearing:

[102]

The Senior Member, at various stages of the hearing, stated that her role was not to determine suitability of the Public Guardian, consistently with s 17(2) of the Guardianship Act. The Senior Member said at one point that the hearing was not about who is best placed to care for the Son - "we're talking about decision making" (Tcpt, [816]). In other words, the Tribunal correctly pointed to the distinction between service provision and decision-making by the appointed guardian. The Tribunal also made clear that it did not have control over operational decisions made by the Public Guardian (e.g. Tcpt, [883], [958]).
It is apparent from a reading of the transcript that the parties and witnesses (e.g. accommodation service provider) were provided with a reasonable opportunity to express their views on the issues to be determined on the GD review. The Stepmother, Father, Father's brother, and the Mother all made various observations about who they each considered should be appointed as guardian, with some of them expressing views about conduct of the Public Guardian as well as the accommodation provider and other service providers (see e.g. comments by the Father at Tcpt [600] - [610]); by the father's brother, at Tcpt [815] - [819]). The Senior Member redirected some questions when parties trespassed into the suitability of the Public Guardian, rather than the suitability of each of the Mother and the Stepmother to be guardian (e.g. Tcpt, [881] - [883]).
The Tribunal explained its task (and jurisdiction) at several points where parties made submissions which encroached on areas outside the Tribunal's jurisdiction. The Tribunal did not have jurisdiction in this hearing to assess or make a determination in relation to the conduct of the Public Guardian. This was explained to the parties. We are of the view that the Senior Member's conduct during the hearing assisted in guiding the parties to limit their views to the relevant areas.
Focusing on the appellant's submission that she was "shut down" in highlighting evidence about the Public Guardian's conduct, it is clear from the transcript that the Stepmother (commencing at Tcpt, [219]) was asked (by the Tribunal) about her views on the relevant issues to be determined, including the need for particular guardianship functions and how, if she was appointed as guardian, she would be able to communicate with the Mother (and others). The Senior Member also clarified her understanding of the responses given by the Stepmother throughout the hearing (see e.g. Tcpt, [476] - [489]). At the end of her closing submissions, the Stepmother said "That's where I'm going with it, that's all". There is no indication in the transcript that she was "shut down" in making submissions about her own suitability, the suitability of Mr X as joint applicant with her, and the suitability of the Mother as proposed guardians.
Nor was she "shut down" in pointing to evidence or expressing her views about the conduct of the Public Guardian. Notwithstanding the view the Tribunal took of its jurisdiction on the GD review, which was not to determine the suitability of the Public Guardian as guardian, nor to undertake a review which was effectively an administrative (or merits) review of individual decisions of the Public Guardian, the Tribunal nonetheless gave considerable leeway to the parties to express their views about the conduct of the Public Guardian.
The transcript read in its entirety demonstrates that each party had reasonable opportunity to express their respective views about the issues to be determined on the GD review. We are satisfied that the Tribunal, as required by s 38(5)(c) of the NCAT Act, took "such measures as are reasonably practicable to "ensure that the parties [had] a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings". We do not consider that the Tribunal failed to afford the appellant procedural fairness, as she has asserted.
Ground 1 of the appeal fails.

[104]

The appellant submits that the Tribunal misunderstood, misconstrued or misapplied ss 15 and 17 of the Guardianship Act by appointing the Public Guardian, reasoning that the Public Guardian can only be appointed as a "last resort". She said that, in circumstances where she met the criteria and was willing to act as guardian, it was not open to the Tribunal to appoint the Public Guardian. We take her ground of appeal to be that the Tribunal applied a wrong principle of law (or failed to apply the correct legal test), or that the construction of the Guardianship Act arrived at by the Tribunal at first instance was wrong in some identified way: Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204 at [32] citing Bianco Walling Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union (2020) 275 FCR 385; [2020] FCAFC 50 at [66].
As noted earlier, before it decides to make a continuing guardianship order, the Tribunal must not appoint the Public Guardian where "some other person" can be appointed as guardian: see Guardianship Act, s 15(3). Before appointing a private individual to act as a guardian, the Tribunal must satisfy itself that the person satisfies each of the three matters listed in s 17(1) of the Guardianship Act. The Tribunal is to be satisfied, inter alia, that the proposed guardian must be "both willing and able to exercise the functions conferred or imposed by the proposed guardianship order": s 17(1)(c).
The Guardianship Act makes clear that the Public Guardian is not subject to the suitability criteria in s 17(1). It is not the Tribunal's role, on a review of an existing guardianship order determined in the GD, to nonetheless apply those s 17(1) criteria in some indirect way or to "evaluate" the Public Guardian's conduct as guardian in the manner contended by the appellant.
In the decision under appeal, after deciding to make a guardianship order in respect of the Son, the Tribunal considered who should be appointed as the Son's guardian at [37] - [71] of the Reasons. The Stepmother and the Mother each proposed that they be appointed as guardian. The Mother has not appealed from the Tribunal's decision not to appoint her as guardian. We will focus on that part of the decision dealing with why the Stepmother was not appointed as guardian.
The Stepmother proposed she be appointed sole guardian. Alternatively, she proposed that Mr X be appointed jointly with her. Her preference was to be sole guardian.
At [38] and [39] of the Reasons, after referring to s 15(3) and s 17(1) of the Guardianship Act, the Tribunal accepted that the Stepmother satisfied some of the requirements in s 17(1). The real issue was "...whether she is able to exercise those functions in a manner that is consistent with the principles in s 4" of the Guardianship Act. The Tribunal then referred to the test to be applied when determining whether a person is "able" to be a guardian (s 17(1)(c)). The Tribunal stated, at [43] of the Reasons:

[111]

(1) Prior reasons of the Tribunal from March 2022 indicated the Stepmother had a highly negative attitude to the service provider responsible for the SIL accommodation and the Tribunal was satisfied that attitude remained (Reasons at [47] to [49]), and it would impede a collaborative relationship with staff at the SIL accommodation and the making of sound objective decisions: Reasons at [49]. The evidence of the SIL accommodation manager supported the view that the Stepmother's attitude to the service provider is unlikely to give effect to the need for stability and consistency of decision-making with respect to the Son: Reasons at [53]. Both the Father and the Stepmother continue to agitate their concerns about the chosen accommodation despite an unsuccessful administrative review application challenging the Public Guardian's accommodation choice (that is, in the AEOD of NCAT).

(2) The Stepmother would be hampered in accessing medical information because Dr Z, the treating Psychiatrist, had decided not to communicate with the Stepmother and the Father: Reasons at [50]. Also, because the treating neurologist has withdrawn services allegedly due to ongoing complaints lodged by the Son's paternal family: Reasons at [51]. While the cause of the withdrawal of services was not determined, the Tribunal was satisfied that there was a risk the Stepmother would be hampered in obtaining relevant medical information due to the history of health professionals involved being unwilling to communicate with her.

(3) The Tribunal was not satisfied the Stepmother would be able to make objective, well-reasoned decisions based on an evaluation of the views of other significant people in the Son's life, including the Mother, due to the fraught family dynamic: Reasons at [55] and [57].

(4) The Tribunal was satisfied there is ongoing controversy about access arrangements and that the Stepmother would be unable to exercise this function in a way that would be consistent with preserving family relations: Reasons at [59].

(5) The Tribunal found the Stepmother would not be able to give real consideration to views that differ from her own: Reasons at [57].

(6) The appointment of the Stepmother as guardian is likely to exacerbate family tension. The Tribunal was concerned this would impact the Son adversely and not be consistent with the statutory instruction in the Guardianship Act (at s 4(a)) that the Son's welfare and interests must be given paramount consideration: Reasons at [60].

[116]

After finding the Stepmother was "willing" but not "able" to exercise the functions of a guardian, the Tribunal then went on to consider the application by the Mother to be appointed guardian and, in summary, found she was not "able" to exercise the functions of a guardian, mainly due to ongoing family conflict.
Focussing on the appellant, the Tribunal's conclusion - that she did not meet the statutory criteria for appointment of a guardian - was supported by evidence. There is no claim seriously put that there was no evidence to support the findings of fact made (which would, if made out, be an error on a question of law). We can discern no error in the Tribunal's construction of s 17(1), and its application of relevant legal principles, in the way it determined that the Stepmother was not "able" to undertake the (relevant) guardianship functions.
To the extent the appellant challenges the weighing of the evidence by the Tribunal in deciding whether she was "able" to be a guardian for the Son (as required by s 17(1)(c)), leave to appeal is required.
The appellant says that there is no valid reason why she was not considered for appointment as guardian. She says that any conflict between her and the respondents (by which we take her to mean the Mother and the Public Guardian) is not relevant under current legislation and case law. She says she presented a plan to the Tribunal below "to eliminate any conflicts or disputes with relevant stakeholders". In support of this submission, the appellant relies on two decisions of the NSW Supreme Court, The Husband v Public Guardian [2016] NSWSC 1720 (Husband) and Re B (No 1) [2011] NSWSC 1075 (Re B).
In Husband, the Supreme Court relevantly determined that the Tribunal had applied the wrong test required under s 17(1)(b) of the Guardianship Act, whether a conflict of interest was "undue". In the decision under appeal, there was no finding that the Stepmother or Mother had an undue conflict of interest with the Son - indeed, the opposite is the case. The Tribunal found that the Stepmother (and the Mother) each met the criteria in s 17(1)(a) and (b).
The Husband case would not seem to provide support for the arguments put by the appellant. The Court did not analyse the operation of s 17(1)(c) or the meaning of the term "able" in that sub-section. As far as we can discern, there is nothing contained in the Tribunal's Reasons that is contrary to, or inconsistent with, the Supreme Court's analysis of relevant statutory provisions in the Guardianship Act.

[120]

Here, the circumstances were that an order could not be made appointing either of the candidates who were willing to undertake the role because neither met the criteria in s 17(1)(c). Such a requirement does not apply to the Public Guardian. The Public Guardian is a statutory office. The considerations mentioned above for the appointment of a private guardian do not apply if the Tribunal appoints the Public Guardian (see s 17(2), Guardianship Act).
We cannot accept the appellant's argument that the Tribunal erred by appointing the Public Guardian because, in the circumstances of this case, she should have been appointed as guardian. This is not consistent with the findings made by the Tribunal (as earlier described). The Tribunal did not make an error in its approach to the application of the statutory formula in s 17 which was consistent with the approach expressed by Lindsay J in IR v AR [2015] NSWSC 1187.
It is clear from the Guardianship Act, at s 15(3), that the Public Guardian cannot be appointed in circumstances where some other person can be appointed. Having found that no other person could be appointed because the proposed guardians did not meet the s 17(1) criteria, the Tribunal's approach in appointing the Public Guardian was both consistent with, and contemplated by, the Guardianship Act. In terms of the restriction in s 15(3), these were not circumstances where an order could be made to appoint "some other person" as guardian, in preference to the Public Guardian, because there was no person available who was "able" to undertake the guardianship function as required by s 17(1)(c).
As expressly provided in s 17(2), the Public Guardian is not subject to s 17(1) criteria. The Tribunal is not required to analyse the Public Guardian's suitability in that regard.
The appellant also relies on the Supreme Court case of Re B which concerned an appeal from a decision of the (then) NSW Guardianship Tribunal to appoint the Public Guardian as guardian of Mrs B. Mrs B had three sons and there was a history of disagreement and mistrust between the brothers. One of the sons (the plaintiff) and a grandchild (a son of one of the brothers) had applied for guardianship of Mrs B. The Tribunal there found that it was not possible for important and necessary decisions to made within the family due to the conflict and appointed the Public Guardian. Relevantly, on appeal, the Supreme Court found that the Tribunal did not consider s 15(3) of the Guardianship Act, and stated as follows:

[136]

A similar conclusion is expressed at in the Reasons at [58] when the Tribunal said: "It is not for me to determine what is most appropriate in terms of [the Son's] accommodation, services health care and medical treatment or about restrictive practices."
The essence of the appellant's appeal ground is that the Tribunal fell into legal error when appointing the Public Guardian, by refusing to examine whether the Public Guardian's previous decisions (including those relating to accommodation, access and medical functions) were the correct and preferable decisions. The appellant disagrees with the view taken by the GD that its role, on a review, was not to examine those decisions as the Tribunal would do on an administrative review challenge in the AEOD of NCAT. We take this to be that the Tribunal applied the wrong legal principle, or failed to apply the correct legal test, by not evaluating (against the s 4 principles) the Public Guardian's previous conduct as guardian, specifically by failing to consider evidence about "poor" decision-making by the Public Guardian when exercising accommodation, access and medical functions under the 2022 guardianship order.
When conducting a review under s 25(2)(a) or (b) of the Guardianship Act, the Tribunal may confirm, renew, or renew and vary the order, or determine the order is to lapse or be revoked: s 25C(2). In doing so, the Tribunal must follow the steps in s 14 by asking (in summary) - is the person in need of a guardian (s 14(1)); and consider whether or not to exercise the discretion to make a guardianship order by having regard to the matters in s 14(2). The Tribunal must also consider who is to be appointed guardian, which (leaving aside the Public Guardian) engages the requirements of s 17(1), including (again in summary) compatible personality, no undue conflict of interest and being satisfied of the necessary qualification of being "both willing and able" to be guardian.
It is conceivable that past decisions made by an existing guardian might be seen as so unwise to suggest that person should not be reappointed as guardian. In the statutory formula, the concern might be that the existing guardian is no longer "able" to exercise one or more of the functions in the proposed guardianship order, in terms of s 17(1)(c) of the Guardianship Act.
However, s 17(2) states that s 17(1) does not apply to the Public Guardian. Therefore, the appointment of the Public Guardian does not require the Tribunal to be satisfied of the same issues it must be satisfied of when appointing a natural person as guardian.
If that is correct, then how are the decisions of the Public Guardian in its functions as a guardian to be challenged or questioned? Leaving aside potential avenues of investigation such as through the NSW Ombudsman or NDIS, the Guardianship Act provides an avenue through which decisions made by the Public Guardian may be challenged by administrative review in the AEOD of NCAT. Section 80A of that Act provides:

[143]

Administrative (or merits) review applications about decisions of the Public Guardian made under s 80A are heard and determined by the AEOD of NCAT. There are many decisions published on CaseLaw which set out the relevant statutory provisions, and legal principles, which are applied in these types of Tribunal proceedings: see e.g. ELQ v Public Guardian [2024] NSWCATAD 198. In brief, the Tribunal "stands in the shoes of" the decision-maker (relevantly, the Public Guardian); the Tribunal's role is to decide "what the correct and preferable decision is having regard to the material then before it" including any relevant factual material, and any applicable written or unwritten law: Administrative Review Decisions Act 1997 (NSW), s 63(1). The AEOD may take into account material that was not before the Public Guardian when it made the decision under review. In deciding what the correct and preferable decision is, the AEOD is under a duty to comply with the s 4 principles.
The merits review jurisdiction conferred on NCAT is separate to, and distinct from, the jurisdiction conferred on the GD to review continuing guardianship orders. The Tribunal is constituted differently in respect of GD and AEOD proceedings. The Tribunal constituted to hear a review of an existing guardianship order must be constituted by one or two GD members who are "Australian lawyers", or who hold a "professional" or "community based qualification" (NCAT Act, Sch 6, cl 4(2)(a), with those qualifications described in cl 1(2)). In contrast, members of AEOD who hear merits review challenges of the Public Guardian are not required to hold those qualifications (or be an "Australian lawyer". By Sch 6, cl 3(3), the functions allocated to GD do not include any functions of NCAT involving the exercise of its administrative review jurisdiction (see s 30 of the NCAT Act)).
In our view, the Tribunal below was correct in deciding that, when conducting a review of a guardianship order, it was not its role to determine whether the Public Guardian's decisions are the correct and preferable ones. We agree with the Tribunal when it stated at [32] of the Reasons: "It is not my role to determine whether the Public Guardian's decisions the correct and preferable decision as it is in an administrative review application."
The combination of s 17(2) and s 80A makes it plain that the Public Guardian is only appointed when no other person can be appointed (because the Tribunal is satisfied that no other person meets the criteria in s 17(1)) and, under the legislative framework applying in NSW, there is an avenue available by which a person (who meets the criteria in s 80A(2)) may challenge decisions made by the Public Guardian in NCAT but through a different route (administrative review action in the AEOD).
In our view, it follows that the Tribunal below did not err by failing to consider evidence about prior accommodation, access and/or medical decisions made by the Public Guardian in relation to the Son.
In support of her argument that the Tribunal did err, by refusing to examine past decisions made by the Public Guardian, the appellant relied on the case of TGN v MCN & Anor [2023] SASCA 62. There, the South Australian Court of Appeal (Dalton AJA; Doyle and Bleby JJA agreeing) allowed an appeal from a decision of the President of the South Australian Civil and Administrative Tribunal (SACAT), refusing leave for internal review of a decision made by a member of SACAT. The applicant mother had sought a review of the appointment of the Public Advocate SA as guardian for her son.
The facts in that case (put briefly) was that the Public Advocate SA had been appointed guardian for a young man ("N") with significant disabilities against the background of dispute between his parents as to his care. Similar to s 15(3) of the Guardianship Act (NSW), s 29(4) of the Guardianship and Administration Act 1993 (SA) ("GA Act") provides the Public Advocate may be appointed "only if no other order ... would be appropriate".
The Public Advocate initially allowed N to live at home with his mother as he had before the order appointing the Public Advocate as guardian, but later decided N was to live with, and be cared for, by disability service providers, rather than his mother. There was nothing to indicate why that decision had been made. Conflict developed between the Public Advocate and the mother. The mother applied to SACAT to vary or revoke the guardianship order. In May 2021, SACAT confirmed the guardianship order appointing the Public Advocate.
The mother made another application to vary or revoke the order. The mother's evidence detailed her dissatisfaction with the Public Advocate and its decisions and alleged N's physical and mental health had declined as a result of the decisions of the Public Advocate.
In contrast to the situation in NSW, before a review of the existing guardianship order by SACAT could proceed, the mother needed to satisfy SACAT that the reason for her review application was a change in N's circumstances: GA Act, s 33(1a)(i). SACAT at first instance decided the mother had failed to prove a change in circumstances, (relevantly) giving the following reasons:

[149]

There are of course some similarities between the SA and NSW Acts. Section 29(4) of the GA Act is not dissimilar to s 15(3) of the Guardianship Act, although s 29(4) is to be read in the context of the entirety of s 29 of the GA Act, including s 29(1) ("person ... considered in all the circumstances of the case to be the most suitable" as guardian). Here, in conducting the GD review, the statutory test in s 15(3) of the Guardianship Act required factual findings, and a determination, as to whether a person other than the Public Guardian could be appointed. In the present case the Tribunal decided there was no such person and in those circumstances, the Tribunal had no choice but to appoint the Public Guardian.
We cannot see that the SA Court of Appeal's decision provides support for the proposition put, that the GD, when conducting a review of an existing NSW guardianship order under the Guardianship Act, can, and should, review "unsatisfactory" decisions of the Public Guardian.
In our view, the Tribunal below was correct not to review the correctness of past decisions made by the Public Guardian (such as access decisions, decisions about choice of SIL accommodation. This is properly the subject of an administrative review challenge in the AEOD of NCAT.
The Tribunal was also correct in not evaluating the Public Guardian against the s 17(1), Guardianship Act criteria. Section 17(2) expressly excludes the Public Guardian from that evaluation. In the circumstances where it had made findings about the Stepmother (and the Mother) that they were each not "able" to act as guardian, the Tribunal below had no choice but to appoint the Public Guardian. Given the nature of the GD's jurisdiction on the review of the existing guardianship order, the Tribunal did not err by failing to examine past decisions made by the Public Guardian, contrary to the appellant's assertion.
We make a further observation about the Court's decision in TGN v MCN. In NSW, any person can make a complaint to the NSW Ombudsman about the conduct of the Public Guardian (Ombudsman Act 1974 (NSW), s 12; s 5 definition "public authority" para (c); s 77(2), Guardianship Act). Insofar as the SA Court of Appeal suggested, in the SA context, that avenues of complaint (which include the SA Ombudsman) "might not be efficacious", we do not agree that this would be an accurate or fair description in relation to the avenues for review or complaint provided by legislation in this State. Certainly, we recognise that the NSW Ombudsman would not have the same powers as the AEOD of NCAT would have under s 63 of the ADR Act, to affirm or change the (relevant) decision of the Public Guardian. It may be that is what the SA Court of Appeal had in mind when making the observations it did about alternative avenues of complaint.

[151]

The third argument put forward by the appellant is that the Tribunal erred when it failed to apply s 4(a) of the Guardianship Act when deciding not to review previous decisions of the Public Guardian. It is uncontroversial that, under s 4(a), the Tribunal is obliged to observe the principle that the welfare and interests of such person should be given paramount consideration. The appellant says there was evidence before the Tribunal of "unsatisfactory" decisions by the Public Guardian, this evidence was relevant to whether the Public Guardian should be reappointed, and the Tribunal erred in taking the approach it did towards that evidence. The Tribunal is said to have breached s 4 by failing to consider "critical" or "substantial" evidence detailing "access denial", "abuse" and "neglect".
The point raised, as we understand it, is that s 4(a) should override the operation of ss 17 and 15(3). This is a question of statutory interpretation. The High Court has emphasised that the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose: see e.g. Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [69]- [71]; SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34 at [14].
Section 4 outlines general principles emphasising the welfare and interests of persons with disabilities. It is uncontroversial that the Tribunal (and others who exercise functions under that Act) must observe the s 4 principles when interpreting and applying the Act's provisions. However, the s 4 principles do not override specific legislative requirements set out in the Guardianship Act. For example, the procedures for appointing a guardian or making financial management orders in specific provisions are to be followed, in accordance with the s 4 principles.
In our view, the language of ss 17 and 15(3) is clear and unambiguous and there is no need to look beyond it to establish the meaning of those statutory provisions in the present case.
None of the arguments raised by the appellant in appeal ground 3 persuades us that the Tribunal made an error on a question of law. This appeal ground fails.

[159]

As to leave ground (1), we earlier referred to the findings made by the Tribunal with respect to the ability of the Stepmother (and the Mother) to be appointed as guardian, in terms of whether they each met the statutory criteria in s 17(1)(c) of being "able". The appellant has not put forward any compelling case that that finding was one made without probative evidence; rather she is dissatisfied with the determination made. In terms of the Tribunal's fact-finding, the appellant does not point to "a factual error that was unreasonably arrived at and clearly mistaken", nor that the Tribunal went about the fact-finding process in an unorthodox manner or otherwise in such a way that was likely to produce an unfair result so that the interests of justice require a review of that decision.
As to leave ground (2), we have already indicated that, in our view, the Tribunal did not err on a question of law in how it conceived its task on the review of the existing guardianship order. That task was not to review individual decisions of the Public Guardian. There are other avenues through which such decisions may be challenged already, referred to in these reasons for decision.
The task of the GD was not to balance who is the "best" choice for guardian, it is to apply the statutory criteria in s 17(1) to private individuals who are proposed as guardians, in accordance with s 4 principles (and other relevant provisions in the Guardianship Act already discussed). If the Tribunal is satisfied that no private individual can fulfil the guardian role as contemplated by the Guardianship Act, it is clear from s 15(3) that the Public Guardian must be appointed. The evidence said by the appellant to be "critical" was not material to the issues that fell for determination in the review proceedings.
In respect of both leave grounds, and taking into account the s 4 principles, we do not consider the decision under appeal is attended with sufficient doubt to warrant its reconsideration on appeal. In our view, the Tribunal's analysis of the evidence was thorough and the factual findings do not raise significant doubt as to the correctness of the decision concerning the appointment of guardian. The appellant has not identified an injustice which is reasonably clear, in the sense of going beyond what is merely arguable.
We do not see a basis on which leave to appeal should be granted, and accordingly, leave to appeal is refused.

YKW v Public Guardian

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