YLE v YLF

1. We took into account the Appellant's November 2024 statements as submissions on the Appeal, and as an aid to distilling his grounds of appeal.

1. Decisions of the Guardianship Division of NCAT such as the decision before us are "internally appealable decisions": NCAT Act, s 32(4). To succeed in an appeal, an appellant must demonstrate either an error by the Tribunal below on a question of law, which may be argued as of right; or that permission (that is, "leave") to appeal should be granted to bring the appeal: NCAT Act, s 80(2).
2. YLE appeals against the decision of the Tribunal of 16 July 2024 as of right on a question of law. He does not seek leave to appeal on any other ground.
3. In Micallef v ICI Australia Operations Pty Limited [2001] NSWCA 274, questions of law were identified as including errors of legal principle, decisions based on material errors of fact, decisions made after taking irrelevant matters into account, or failing to take relevant matters into account, and arriving at a result which was so unreasonable or unjust as to suggest that one of the foregoing categories of error had occurred, although the error in question did not explicitly appear on the face of the record. Other questions of law include actual or apprehended bias (Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63), failing to adequately expose the process of reasoning which led to the decision and/or constructive failure to exercise jurisdiction (Resource Pacific Pty Limited v Wilkinson [2013] NSWCA 33), failing to respond to a substantial, clearly articulated argument relying on established facts (Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26) and denying a party procedural fairness or natural justice in circumstances where the same result would not be inevitable if the appeal were allowed and a new trial ordered (Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54).
4. The Appellant was obliged to identify with precision the question of law said to be raised by the appeal (Ferella v Chief Commissioner of State Revenue [2014] NSWCA 378; Schwartz Family Co Pty Limited v Capital Carpets Pty Limited [2017] NSWCA 223).
5. In deciding whether YLE had identified a question of law we adopted the "more generous or benevolent approach" adopted by the Court of Appeal (Griffiths AJA, Meagher and Kirk JJA agreeing) in Kudrynski v Orange City Council [2024] NSWCA 33 (Kudrynski) at [50]-[51]. In Kudrynski, the Court of Appeal considered an appeal from a decision of the NSW Land and Environment Court where the Notice of Appeal prepared by the self-represented appellant was "seriously deficient in several ways" and failed to "articulate clear grounds of appeal": at [34], [36]. While the approach adopted by the Court of Appeal in Kudrynski related to a different statutory context, it nonetheless provides useful guidance to Appeal Panels of NCAT.
6. Based on his written and oral material and having obtained YLE's concurrence, the Appeal Panel distilled the following issues that he asserted might involve errors of law.

(1) The Tribunal failed to consider relevant evidence being:

(a) evidence of YLG's inability to make the enduring guardianship appointment;

(b) the Tribunal's 2017 decision to make a financial management order;

(c) evidence that YLF isolated YLG from YLE, and sought to prevent YLE from seeing YLG;

(d) YLE's contention that YLF had misappropriated YLG's funds.

(2) The Tribunal took into account irrelevant evidence, being YLF's claims that YLE was "estranged" from YLG, and failed to place adequate weight on YLE's rebuttals of that claim.

(3) The Tribunal took into account irrelevant evidence being that the separate representative had visited YLG at the aged care facility and reported that YLG was settled and happy.

(4) The Tribunal denied procedural fairness to YLE because YLE expected that YLF would not be present at the hearing and YLF spoke to a document that was "full of lies".

Was the Tribunal in error in failing to consider relevant evidence?

1. In considering whether the Tribunal's Reasons for Decision demonstrate that the Tribunal failed to consider relevant evidence, the Reasons must be read fairly and as a whole: New South Wales Land and Housing Corp v Orr (2019) 100 NSWLR 578; [2019] NSWCA 231 at [77] (Orr). In addition, the Reasons are not to be inspected with a fine tooth-comb attuned to identifying error: Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456; (1993) 43 FCR 280 at 287; [1993] FCA 456 at 287 (Pozzolanic); Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 at 272, 291 (Wu Shan Liang); Orr at [77]; and, there should be a "degree of tolerance for looseness in the language of the tribunal, unhappy phrasing of the tribunal's thoughts or verbal slips": Pozzolanic at 287; Wu Shan Liang at 272, 291; Orr at [77].
2. In AW v WW (No 2) [2024] NSWSC 146, Kunc J considers what constitutes an error on a question of law:

"[49] The first question for determination is what is the proper construction of 'question of law' in clause 14(1) of part 6 schedule 6 of the NCAT Act. I set it out again here for convenience:

14(1) A party to proceedings in which an appealable Division decision is made may appeal to the Supreme Court against the decision -

(a) in the case of an interlocutory decision of the Tribunal - with the leave of the Court, or

(b) in the case of any other kind of decision - as of right on any question of law, or with the leave of the Court, on any other grounds.

[50] In Orr (at [40] per Bathurst CJ and Bell P; Johnson, Garling and Lonergan JJ agreeing) it was said of the expression 'question of law' that:

Like any statutory expression, its meaning is ultimately to be derived from its statutory context and by reference to the purpose of the provision and statute in which it appears.

[51] While Orr concerned the meaning of 'question of law' in the context of a referral to the Court of Criminal Appeal under section 5AE of the Criminal Appeal Act 1912 (NSW), the following passages from the judgment of the Chief Justice and President (as Bell CJ then was) are equally applicable to the case at bar:

[60] It is well established that a question of mixed fact and law is to be differentiated from, and is not, a 'question of law'. In Thomas v R [1937] HCA 83; (1937) 59 CLR 279 at 306; [1937] HCA 83 (Thomas), Dixon J noted that a 'mistake as to the existence of a compound event consisting of law and fact is in general one of fact and not a mistake of law'. Thomas was cited with approval in Iannella v French [1968] HCA 14; (1968) 119 CLR 84 at 114-115; [1968] HCA 14; see also W v R [1986] HCA 88; (1986) 161 CLR 278 at 287 and 314; [1986] HCA 88; cf. Lavorato v R (2012) 82 NSWLR 568; [2012] NSWCCA 61 at [13].

[61] In Australian Telecommunications Corporation v Lambroglou (1990) 12 AAR 515 at 527; [1990] FCA 689, Ryan J observed that 'if the question, properly analysed is not a question of law, no amount of formulary like 'erred in law' or 'was open as a matter of law' can make it into a question of law.'

...

[108] In keeping with the observations of Simpson J in Goulburn Wool, the evident purpose of the procedure provided by s 5AE is to provide a facility whereby, if there is a difficult or unsettled question of law or a question of law as to which there are conflicting authorities or no clear authority, the judge hearing the matter may or, if the Crown requires, must submit such questions to the Court of Criminal Appeal.

[109] Those questions of law should be, in our opinion, what are sometimes described as 'pure questions of law'. They should not draw the Court of Criminal Appeal into questions of fact. Moreover, they must be questions whose character as a question of law can be recognised on the face of the question, and not depend upon the answer given to the question..."

1. Kunc J also considers whether the tribunal below made an error on a question of law by failing to consider relevant evidence. He states:

"[61] Finally, there are two other reasons why the Court is not satisfied that a question of law ... has been made out in the present case.

[62] First, by reason of the matters set out ... above, the Court is not prepared to infer that the considerations identified on behalf of AW as not having been taken into account were in fact not taken into account. The Tribunal records those pieces of evidence specifically or as to their effect in the course of the Decision. In any event, a decisionmaker such as the Tribunal 'is not bound to refer to every item of evidence in framing its reasons....The Tribunal is required to set out its findings about essential facts, to indicate the legal principles it is applying and the chain of reasoning it has adopted': Castro v Minister for Immigration and Ethnic Affairs [1997] FCA 40 at p 8 per Wilcox J.

[63] Second, and related to the preceding point, an assessment of whether a question of law is raised where this Court is required to examine the evidence before the Tribunal cannot be undertaken without considering how the case was run before the Tribunal. ... The Court will be slow to find that a tribunal has erred for failing to consider a specific circumstance or reach a specific conclusion which it does not appear clearly to have been invited to consider or reach when the tribunal's reasons appear to be comprehensive."

Failure to consider evidence of YLG's inability to make the enduring guardianship appointment

1. It is clear from the Tribunal's Reasons for Decision that the Tribunal considered YLE's assertion in this matter. Paragraph [39] of the Tribunal's Reasons for Decision refer to YLE's contention that the enduring guardianship was made either under duress or without capacity. The Tribunal notes that this assertion had never been tested and there had never been an application to review the enduring guardianship.
2. The Appellant filed with Tribunal a report by Dr Reutens dated 25 November 2016. A further report dated 30 June 2016 was filed with the appeal documents. They refer specifically to YLG's capacity to make an enduring power of attorney. We are unable to find in the material before us evidence provided to the Tribunal below of YLG's inability to make the enduring guardianship appointment.
3. We find that the Tribunal had due regard to YLE's assertion that the enduring guardianship was invalid due to lack of capacity or undue influence. There was no further evidence available to the Tribunal on this matter.
4. Further, this is not a matter that the Tribunal is, by statute, required to consider when hearing an application for guardianship. The Tribunal's Reasons for Decision indicate that, as required by statute, it had regard to the best interests of YLG in determining that the enduring guardianship was operating "manifestly in his best interests" [41]-[43]. We are not persuaded that the Tribunal was in error by failing to have regard to the evidence that YLE asserts, indicates lack of capacity to appoint an enduring guardian.

Failure to take into account the Tribunal's 2017 decision to make a financial management order.

1. The Tribunal's Reasons for Decision indicate that on 16 February 2017, YLF resigned as YLG's attorney under an enduring power of attorney. On 20 February 2017, YLE withdrew his application to review the enduring power of attorney. The Tribunal made a financial management order.
2. There is no statutory requirement that when considering whether to make a guardianship order, the Tribunal should consider any financial management order made in respect of the subject person. In the absence of a transcript of the hearing, there is no indication as to whether YLE raised his matter as one relevant to the matters then before the Tribunal. It is not clear to the Appeal Panel what account the Tribunal should have had to that order. We are not persuaded that the Tribunal was in error in falling to consider this matter.
3. This ground of appeal is rejected.

Failure to have regard to the evidence of YLF's isolation of YLG from YLE, including YLF's actions to prevent YLE from seeing YLG.

1. The Tribunal's Reasons for Decision deal with these matters at [23]-[28].
2. In doing so the Tribunal refers specifically to YLE's assertion that YLF had "ostracised" him and had "pushed him out" from seeing his father; [23].
3. The Tribunal refers to YLE relying on an email that he undertook to provide as evidence of being "blocked" from seeing his father. That email was not received. At the Appeal hearing, YLE stated that he has been unable to find that email. YLE provided the Appeal Panel with a statement from his partner that refers to these matters. That statement includes her views and opinions but, in our view, does not take this matter further than it was considered by the Tribunal below.
4. At [28], the Tribunal records that YLF indicated that he had no objection to YLG going out of the aged care facility so long as his medical and care needs were met. On the evidence before it, the Tribunal was satisfied that YLF had not actively prevented YLE seeing YLG, but was satisfied that YLF communicated poorly with YLE and failed to provide him with updates about his father's condition [34].
5. At [36], the Tribunal comments that on his own evidence YLE sees his father about twice a year, and concludes that there is no impediment to YLE visiting his father so long as "he provides appropriate notice ... and considers his father's care needs and [YLF]'s request that he be transported in an appropriate vehicle".
6. YLE has also asserted that as the "next of kin" of YLG he was entitled to be contacted by the aged care facility regarding YLG's health and medical issues and that the Tribunal below failed to adequately consider this issue. However, at [37]-[38], the Tribunal deals with YLE's concern that as his father's "next of kin" he is not contacted by the aged care facility and notes that as YLF is YLG's enduring guardian, it is appropriate that contact is made with YLF.
7. At [40]-[42], the Tribunal refers to the communication difficulties between YLF and YLE and notes that "while [YLF] acknowledged his failure to contact, this failure is an insufficient reason to remove him as his brother's enduring guardian, given his long and close relationship with his brother, his close oversight of his needs and the positive effect he has had on his brother's quality of life".
8. We find that the Tribunal took account of YLE's allegations that YLF purposely isolated YLG from him and prevented him from seeing YLG. However on the evidence before it, the Tribunal was not satisfied that this was the case. The Tribunal accepted that there were communication problems between YLE and YLF, and was not satisfied that any failure by YLF to communicate with YLE about YLG warranted making an order that would suspend the operation of the enduring guardianship. In the opinion of the Tribunal the enduring guardianship was meeting the needs of YLG.
9. YLE contends that the Tribunal's conclusion about this matter was wrong. However, having considered the evidence the Tribunal reached its conclusion. As is detailed by Kunc J, it is not open to the Appeal Panel to reconsider the facts of a matter when conducting an appeal alleging error on a question of law. We are not persuaded that the Tribunal failed to adequately consider YLE's evidence and assertions alleging that YLF isolated YLG from YLE and prevented YLE from seeing YLG.

Failure to consider YLE's evidence that YLF misappropriated YLG's assets.

1. Included in the "Points of Claim" that YLE filed in relation to the 2017 matter and provided to the Tribunal on 16 July 2024 are allegations that YLF has misappropriated YLG's funds. The 2017 matter was an application to review an enduring power of attorney and an application for financial management. The application to review the enduring power of attorney was dismissed and the NSWTG was appointed to manage YLG's affairs in the context that there was no other person nominated to do so. We have not been provided with any indication that any evidence put to the Tribunal in the allegations has been tested. Nor have we been advised of any submission or evidence given as to the ongoing relevance of this material to the decision that is the subject of the appeal. The relevance to the decision is unclear to the Appeal Panel.
2. The Appellant provided additional documentation, being an outline of YLG's finances in 2016 and an email from the NSWTG.
3. As is noted by Kunc J, the tribunal is not "bound to refer to every item of evidence in framing its reasons. The Tribunal is required to set out its findings about essential facts, to indicate the legal principles it is applying and the chain of reasoning it has adopted": AW v WW. There is no mention of the allegations in the Reason for Decision. Consistently with the view of Kunc J, we do not find that a failure to mention evidence of unknown relevance constitutes an error on a question of law. We consider this view strengthened by the comments of Kunc J the court would be slow to find that a tribunal has erred for failing to consider a specific circumstance or reach a specific conclusion which it does not appear clearly to have been invited to consider or reach when the tribunal's reasons appear to be comprehensive.
4. Having had regard to the mandatory considerations set out in s 14(2) Guardianship Act the Tribunal concluded that the enduring guardian had acted as the guardian for the past ten years, and made decisions for YLG and that the enduring guardianship appointment was manifestly operating in the best interests of YLG. We are not persuaded that the Tribunal was in error by not engaging actively with the 2016 Points of Claim submission of YLE or the other financial documents noted above, where the relevance of those documents has not been established.

Was the Tribunal in error by taking into account irrelevant evidence

Taking into account irrelevant information, being YLF's claims that YLE was "estranged" from YLG, and failing to place adequate weight on YLE's rebuttals of that claim.

1. The Tribunal makes no positive finding that YLE was estranged from YLG.
2. In the absence of a transcript, it is not possible to ascertain the extent to which an alleged estrangement was considered during the hearing. However it does not appear in the Tribunal's Reasons for Decision as a matter that influenced the Tribunal's decision. To the contrary, at [26], the Tribunal specifically refers to YLE's evidence that he had contact with his father and at [36], the Tribunal refers to YLE's visits to his father.
3. This ground of appeal is rejected.

Taking into account irrelevant evidence that the separate representative had visited YLG at the aged care facility and reported that YLG was content.

1. At [31]-[33], the Tribunal notes that the separate representative had visited YLG at the aged care facility and that he had also spoken to YLG's carer including about the role played by YLF. The separate representative referred to YLG's non-verbal communication and his interpretation of that communication. The Tribunal "relied on the evidence" of the separate representative that YLG was "settled and happy"; [34]. The Appellant contends that it was inappropriate to rely on the report of the separate representative because YLG has severe communication impairment.
2. There is no indication before us that the view of the separate representative was challenged at the hearing. Nor was it clear to us why it was inappropriate to rely on that evidence given by an independent representative where it was uncontested and where the circumstances in which it was obtained are clearly indicated to include information in addition to that obtained from direct communication with YLG.
3. We are not persuaded that the Tribunal was in error by accepting the evidence of the separate representative and placing weight on it.

1. The Tribunal was obliged to afford procedural fairness to all parties: NCAT Act, s 38(2). Among other things the Tribunal was required to take 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: NCAT Act, s 38(5)(c).

Did the Tribunal deny procedural fairness to YLE because YLE expected that YLF would not be present at the hearing and YLF spoke to a document that was "full of lies".

1. In the absence of a transcript, it is not possible to establish whether YLE indicated that he had understood that YLF would not be present at the hearing and whether he raised any procedural fairness issues arising from any such understanding. The Reasons for Decision of the Tribunal are silent on this matter.
2. YLE has not asserted in the appeal proceedings that he raised YLF's presence as an issue at the hearing on 16 July 2024. As a party to the hearing, it is appropriate that YLF attended the hearing. On first principles, his attendance was procedurally fair. In our view where the matter was not raised as an issue by YLE, and where the Tribunal had no other way of anticipating that YLF's appearance could be an issue for YLE, it is reasonable that YLF was present at the hearing and his presence was procedurally fair to the parties. We consider that there was no denial of procedural fairness where there was no indication to the Tribunal that YLE considered that YLF's unanticipated presence caused him difficulties in presenting his case, if indeed this was the situation.
3. This ground of appeal is rejected.
4. YLE submitted that he was unable to respond adequately to YLF's statement to the Tribunal on 16 July 2024. However the documents before the Tribunal on that occasion include a copy of that statement with annotations by YLE. We conclude that YLE did have an opportunity to respond to the statement. YLE has not established why he should have been given a further opportunity to respond to the Statement.
5. This ground of appeal is rejected.

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.