YLO v YNA

Australian Broadcasting Tribunal v Bond (1990) 21 ALD 1; [1990] HCA 33

BHP Billiton Ltd v Dunning [2015] NSWCA 55

Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456; (1993) 43 FCR 280

Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 73 ALD 321; [2003] HCA 26; 77 ALJR 1088

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

Kioa v West [1985] HCA 81; (1985) 159 CLR 550

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

Kudrynski v Orange City Council [2024] NSWCA 33

L & B Linings Pty Ltd v WorkCover Authority of New South Wales [2012] NSWCA 15

Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6

New South Wales Land and Housing Corp v Orr (2019) 100 NSWLR 578; [2019] NSWCA 231

Schwartz Family Co Pty Ltd v Capitol Carpets Pty Ltd [2017] NSWCA 223

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

ZQB v ZPV [2020] NSWCATAP 274

M Streeter, solicitor (Separate Representative) (Third 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 the 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. The appeal is brought by YLO and is about his fifty-two-year-old daughter, YMD. YMD has multiple health problems, a severe intellectual disability and is dependent on others for all aspects of daily living. For ease of reading, in these reasons we will refer to YMD and YLO as "the Daughter" and "the Father" respectively.
2. Since 2013, the Daughter has been the subject of a series of guardianship orders under the Guardianship Act 1987 (NSW). Under each order, the Father was appointed as the Daughter's guardian and, until September 2024, sole guardian.
3. The Daughter resides in supported independent accommodation operated by a disability services and accommodation provider (the Provider). In August 2024, YNA the Provider's manager (the Manager) applied to NCAT seeking review of the then current guardianship order which was made in 2022 (the 2022 order). The Manager alleged that the Father had made decisions that were not in the Daughter's best interests and was "blind to the failings" of the Daughter's support coordinator (the Support Coordinator). The Daughter is a participant in the National Disability Insurance Scheme (NDIS). The term "support coordinator" is the term used to describe a person engaged by an NDIS participant to coordinate the support services available to them and funded by the National Disability Insurance Agency (NDIA).
4. In September 2024, the Tribunal conducted a hearing to review the 2022 order and decided to make a further guardianship order for a period of 18 months (the 2024 Order) and to not reappoint the Father as the Daughter's sole guardian. Instead, the Tribunal decided to appoint both the Father and the NSW Public Guardian as the Daughter's guardians. Under that order the Tribunal gave the Public Guardian authority to make decisions about the services the Daughter should receive, and the Father authority to make decisions about the Daughter's accommodation, health care, and to consent on her behalf, to the use of restrictive practices and medical and dental treatment on her behalf. The decision to appoint the Public Guardian with authority to make decisions about services (the Services function) is the decision under appeal.
5. The Father, the Manager and the separate representative appointed for the Daughter (Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), s 45(4)(c)), solicitor, Mr Mark Streeter, participated in the hearing of the appeal (the Separate Representative). The NSW Public Guardian did not play an active role in the appeal.

1. Section 14(1) of the Guardianship Act gives the Tribunal power to make a guardianship order.
2. At the request of any person who, in the opinion of the Tribunal, has a genuine concern for the welfare of the person under guardianship, the Tribunal must review a guardianship order: Guardianship Act, ss 25(2)(a), 25B(d). On reviewing a guardianship order, the Tribunal may vary the order, suspend or revoke the order, confirm the order, or renew, or renew and vary the order: Guardianship Act, s 25C(1).
3. Where the Tribunal decides to make a guardianship order, it must appoint a person(s) who is or above the age of 18 years as the guardian of the person under guardianship and specify whether the order is continuing or temporary, plenary or limited: _Guardianship Ac_t, s 16(1). Where, as here, the Tribunal decides to make a limited guardianship order, it must specify which of the functions the guardian shall have in respect of the person under guardianship: Guardianship Act, s 16(2).
4. The Tribunal may appoint two or more guardians, either jointly (each having the same functions) or separately (each having different functions). The Tribunal must not appoint the Public Guardian as a joint guardian: _Guardianship Ac_t, s 16(3).
5. In addition, the Tribunal must not appoint the Public Guardian as the guardian of the person under guardianship in circumstances in which some other person can be appointed as guardian of the person: Guardianship Act, s 15(3).
6. To appoint a person to act as the guardian of the person under guardianship, the Tribunal must satisfy itself that the proposed guardian satisfies each of the three matters listed in s 17(1) of the Guardianship Act:

17 Guardians

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

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

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

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

(2) Subsection (1) does not apply to the appointment of the Public Guardian as the guardian of a person under guardianship.

...

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

4 General principles

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

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

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

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

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

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

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

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

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

1. The decision under appeal is an "internally appealable decision": NCAT Act,

s 32. As a party to the proceedings for review of the 2022 Order, the Father has a right to appeal that decision on any question of law or, with the leave of the Appeal Panel, on any other ground: NCAT Act, s 80(2)(b). 2. Being the appellant, the Father is required to identify with precision the question of law said to be raised by the decision under appeal: Ferella & Anor v Chief Commissioner of State Revenue [2014] NSWCA 378 at [6], [22]; Schwartz Family Co Pty Ltd v Capitol Carpets Pty Ltd [2017] NSWCA 223 at [13]. He failed to do so in the notice of appeal. Nonetheless, adopting the "more generous or benevolent approach" endorsed by the Court of Appeal (Griffiths AJA, Meagher and Kirk JJA agreeing) in Kudrynski v Orange City Council [2024] NSWCA 33 at [50]-[51], on the basis of the material filed by Father in this appeal, together with his oral submissions and those made by the Separate Representative, we concluded that the following questions of law can be discerned:

(1) Whether the Tribunal failed to have regard to the evidence given by the Support Coordinator in answer to the allegations made about him by the Manager.

(2) Whether there was "no evidence" to support the following findings:

(a) that "decisions are being made (or not made) by [the Support Coordinator] that have resulted in [the Daughter] living less than her best life": Reasons for Decision, NCAT, 17 September 2024 unrep (the Reasons) at [33].

(b) that "[t]he decline in the relationship [between the management of the Provider and the Support Coordinator] has reached a point where it is combative and resulting in services not being provided to [the Daughter] in a timely manner": at [33].

(c) that "[t]here are delays in attending to matters which are reasonable but the failure to communicate with Northcott management by [the Support Coordinator] has had adverse consequences for [the Daughter]": at [37].

(3) Whether the Tribunal failed to afford the Father procedural fairness by "cutting the [review] hearing short".

(4) Whether the Tribunal failed to afford the Daughter procedural fairness by conducting the hearing in her absence.

(5) Whether the Tribunal was properly constituted.

1. In addition, the appellant contends that the Provider "had legal representation without notification". This contention does not raise a question of law. In any event, the Tribunal did not give the Manager leave to be legally represented in the proceedings. A member of the Provider's staff who is apparently a lawyer attended the hearing. He did not seek leave to, or purport to, represent the Manager. Indeed, as the Transcript of the hearing reveals, he said very little.

1. To put the submissions made by the parties in context, it is necessary to set out the background to the decision under appeal and the reasons given for that decision.
2. In 2013, one of NCAT's predecessors, the NSW Guardianship Tribunal, made an initial guardianship order in respect of the Daughter for a 12-month term and appointed the Father as guardian for the Daughter with accommodation and restrictive practices functions. In 2014, as required by s 25(2)(b) of the Guardianship Act, the Guardianship Tribunal's successor, the Guardianship Division, conducted an end-of-term review and renewed that order for a term of three years, reappointing the Father as guardian with the same functions conferred under the initial order. In May 2017, the Guardianship Division conducted a further end-of-term review and renewed the order made in 2014 for a term of five years, reappointing the Father and, in addition to accommodation and restrictive practices functions, gave the Father health care, services and medical and dental consent functions. In May 2022, the Tribunal renewed the 2017 order for a period of five years (the 2022 order).
3. In August 2024, the Manager made an application to NCAT seeking review of the 2022 order. The Manager urged the Tribunal to replace the Father as the Daughter's guardian and gave these reasons for that request:

"The current guardian, [the Father] has made decisions that are not in her best interests. [The Father] issued a "no CPR" directive despite [the Daughter] not suffering any terminal illness or condition causing pain & suffering. [The Father] also refused to replace a Support Coordinator who has failed to provide [the Daughter] with prompt & professional service. This Support Coordinator has created extensive delays in submissions or critical documents to the NDIA & failed to provide [the Daughter] with essential aids recommended by clinicians. As a result, [the Daughter] & staff have been exposed to increased injury risks."

1. At the review hearing, the Manager clarified that he was not requesting the Tribunal to remove the accommodation, healthcare, medical/dental consents and restrictive practices function from the Father but only the healthcare and services functions: Reasons at [18].
2. The Father and the Manager agreed with the Tribunal that the 2022 order should be renewed with the functions conferred under that order. The only issue in dispute between them was whether the Father should continue to exercise the healthcare and services functions (the disputed functions).
3. At [19]-[28], the Tribunal considered the question of whether the Father was able to exercise the healthcare function. The Manager criticised the decision made by the Father in February 2024 in exercise of that function to make an advanced care plan in relation to the Daughter (the Advanced Plan). That plan contained the directive "if heart stops and not breathing, not for CPR following an incident". The Father made that plan after the Daughter's heart and breathing stopped and she was resuscitated: Reasons at [21], [23].
4. In a letter to the Father, the chair of the Provider's "end of life panel" advised that the panel had decided not to endorse the Advanced Plan and gave these reasons:

"...

(2) The Panel acted on advice that an advanced care plan completed by a substitute decision maker for a person without decision making capacity is not legally binding on health practitioners.

(3) If [the Daughter] is acutely unwell and required medical care and the treating team was not able to contact you, the treating team would consider the wishes of the substitute decision maker in the Advanced Care Plan. However, the decision to respect those preferences would remain with the treating team and they could choose how to proceed based on their view of the best interests of [the Daughter].

..."

1. At [25], the Tribunal correctly summarised the principles which govern a guardian's authority to make an advanced care directive for a person under guardianship in exercise of a health care function.
2. At [27], the Tribunal explained why it decided not to remove the healthcare function from the Father:

"In my view, [the Father] has exercised the healthcare function in a competent manner. He consulted his wife and [the Daughter's] GP. He is well informed about his daughter's medical circumstances and thought about the matter following an event that resulted in his daughter's admission to hospital. The CPR Directive may never be invoked. Even if it is invoked it is dependent on the advice of the medical treating team and the views of [the Daughter]'s family at the time."

1. At [29]-[36], the Tribunal went on to consider the second issue raised by the Manager, namely whether the Father was able to exercise the services function. The Manager claimed that, despite raising his concerns on many occasions about the timeliness and quality of the services provided by the Daughter's support coordinator, the Father had refused to act: Reasons at [30].
2. At [30], the Tribunal said that it accepted the Manager's claims:

(1) that the Support Coordinator "is difficult to contact, doesn't respond to correspondence in a timely way, is not timely in lodging important applications and that has resulted in extensive delays in collecting evidence to lodge applications with the NDIA";

(2) that, despite raising his concerns with the Father, there was "no change"; and

(3) there is a "complete lack of engagement between the Service Coordinator and the Provider's management.

1. At [31], the Tribunal recorded that the Father said that the delays referred to by the Manager could be explained by the time it takes the NDIA to conduct a review and that he is "perfectly happy" with the Support Coordinator.
2. At [37], the Tribunal said that it was not satisfied that "in exercising that confidence [with the Support Coordinator]" that [the Father] was able to exercise the services function "in accordance with s 17(1) of the Act".
3. Noting that no other individual was willing to act as guardian for the Daughter, the Tribunal appointed the Public Guardian with authority to exercise a health care function: at [38].

Ground 1: failure to consider the evidence given by the Support Coordinator/respond to the argument made by the Father in answer to the allegations made by the Manager

1. By ground 1, the Father and the Separate Representative contend that the Tribunal failed to have regard to the evidence given by the Support Coordinator in response to the allegations made about him by the Manager. They contend that it can be inferred from its failure to determine each of those allegations that the Tribunal failed to consider the evidence given in response to those allegations.
2. With respect to the claim made by the Manager that the actions or inactions of the Support Coordinator resulted in a delay in a "change of circumstances request" being submitted to the NDIA in 2021, and again in 2024, the Father and the Separate Representative contend that the Tribunal ignored the evidence given by the Support Coordinator in answer to that claim.
3. An NDIS plan sets out the "reasonable and necessary supports" or "reasonable and necessary budget" to be provided and funded for the NDIS participant: see generally National Disability Insurance Scheme Act 2013 (Cth), Ch 3, Pt 2. If the participant's circumstances change, for example, as a result of a deterioration in their physical condition and reduced mobility, they may request the NDIA to amend their plan and provide additional funding.
4. With respect to the 2021 change of circumstances request made by the Support Coordinator to the NDIA (the 2021 NDIA request), the Father and the Separate Representative point to the evidence given by the Support Coordinator that, contrary to the claim made by the Manager, there was not a nine-month delay in that request being submitted to the NDIA. The Support Coordinator claimed that a new plan was in place within three months of him submitting that request to the NDIA, which he described as "a significant achievement when you know the extended time frames required for NDIS approval".
5. With respect to the 2024 change of circumstances request (the 2024 NDIA request), the Separate Representative and the Father point to the evidence given by the Support Coordinator, and corroborated by the Father, in answer to the allegation made by the manager that by July 2024 the request had not been submitted. They point to the evidence they say demonstrates that the Support Coordinator submitted that request in February 2024 and that on multiple occasions he and the Father followed up its progress with the NDIA. In addition, they point to complaints made by the Support Coordinator to the NDIA in May 2024 about its delay in considering that request.
6. The Manager disagrees that the Tribunal ignored the evidence given by the Support Coordinator in answer to his concerns about the Support Coordinator's poor response time and lack of communication with the provider. He contends that the available evidence supported the claims he made about the Support Coordinator. He points to the evidence he gave of his experience with other support coordinators who he observed were more proactive in making requests to the NDIA and obtaining and submitting supporting documentation.

1. A failure to consider a "substantial, clearly articulated argument relying upon established facts" may amount to a failure to accord procedural fairness: Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 73 ALD 321; [2003] HCA 26; 77 ALJR 1088 at [24] (Dranichnikov).
2. In Allianz Australia Insurance Ltd v Cervantes [2012] NSWCA 244; 61 MVR 443 at [19]-[22], Basten JA referred to Dranichnikov when he considered the legal obligation of administrative decision-makers to take particular evidence into account:

"[19] Although this ground must be dismissed for the reasons given above, it is desirable to return to the first step in the reasoning, namely identifying the legal obligation to take particular evidence into account. No case was referred to which supported a proposition expressed in these terms. In Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 73 ALD 321; 197 ALR 389; 77 ALJR 1088; [2003] HCA 26 at [24] (Dranichnikov), Gummow and Callinan JJ stated:

[24] To fail to respond to a substantial, clearly articulated argument relying upon established facts was at least to fail to accord Mr Dranichnikov natural justice.

[20] A similar point was made by Kirby J at [86] referring to a passage in the judgment of Gaudron J in Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57; 179 ALR 238; [2001] HCA 22 at [81] (Miah) where, after noting that it was not always easy to distinguish an error of law which is jurisdictional from one that is not, her Honour continued:

[81] However, the present case is, in my view, a clear case of constructive failure to exercise jurisdiction. That is because the delegate failed to consider the substance of Mr Miah's application and could only have failed to do so because he misunderstood what is involved in the Convention definition of 'refugee'.

[21] Two propositions may be drawn from these statements. First, although not articulated in these terms, a constructive failure to exercise jurisdiction may arise because the statutory conferral of power has not been exercised according to its terms. Thus, in the present case, s 94 of the [MAC] Act requires that a claims assessor 'is, in respect of a claim referred to the assessor for assessment, to make an assessment of ... the amount of damages': s 94(1)(b). It is, therefore, mandatory that the assessor address the claim and carry out the statutory function.

[22] The second point is that neither Dranichnikov nor Miah went so far as to imply an obligation to consider every piece of evidence presented. Further, to refer to a report, but not to a particular passage in the report, may indicate an implicit preference for some other material which (in the absence of any no evidence ground) must be accepted as existing to support a particular conclusion. Such a course cannot constitute a failure to take into account a relevant consideration nor a failure to respond to a substantial argument: Minister for Immigration and Citizenship v SZJSS (2001) 243 CLR 164; 273 ALR 122; 119 ALD 446; [2010] HCA 48 at [35] (SZJSS)."

1. In our view, those observations apply equally to the obligation of a Tribunal in the exercise of the power to review a guardianship order under Div 4, Pt 3 of the Guardianship Act.
2. In considering whether, as is contended by the Separate Representative and the Father, that the Reasons demonstrate that the Tribunal failed to consider the Support Coordinator's response to the allegations made by the Manager, 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 should 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].

1. To put the submissions made by the parties in context, it is necessary to consider the Reasons in some detail.
2. At [29], the Tribunal summarised the concerns raised by the Manager about the Support Coordinator, broadly termed "poor response times and lack of communication" and recorded several examples given by the Manager of his concerns:

"(1) Taking 9 months to submit a Change of Circumstances request on 9 December 2021 but not lodged until 5 August 2022.

(2) [the Support Coordinator] did not respond to any emails from November 2021 to late January 2022.

(3) A second long wait to action a Change of Circumstances request in 2024.

(4) On 17 April 2024 there was a meeting between service providers which identified items that [the Support Coordinator] should secure for [the Daughter] being:

(a) Special padded rug for next to [the Daughter]'s bed in case she falls.

(b) Pelican belt to allow staff to support mobility.

(c) Slide sheets to allow mobility in bed.

(d) Sensory tools to help [the Daughter] with her emotions.

(e) Wheelchair for safe outdoor mobility.

(f) Commode to assist mobility and safety around personal care."

1. At [31], the Tribunal recorded that the Father "felt that the delays could be explained by the time it takes for the NDIA to conduct a review ... [and that] he is 'perfectly happy' with the ... Support Coordinator".
2. At [32], the Tribunal summarised the Support Coordinator's responses to the Manager's allegations:

"32 [The Support Coordinator]gave evidence. I found him to be combative and sought to 'score points' in his responses to [the Manager]. I had to repeatedly invite him to make submissions to me rather than direct his comments toward [the Manager]. He told me that he speaks to the SIL Care Manager 'mostly daily'. As to the matters that were to be purchased 'there is no such thing as a special padded rug'. I found that evidence to be trite and evasive. There may not be an item called Special Padded Rug but I am comfortably satisfied that there are padded rugs that exist and could be used to cushion any fall if [the Daughter] falls out of bed. According to [the Support Coordinator], other items have not been purchased as they are going through the NDIS approval process. I did accept his evidence that it is not a simple matter to obtain funding approval for a wheelchair that could cost $15-20,000. What is lacking is a line of communication with Northcott management as to if an application has been lodged and how advanced it is. [The Support Coordinator] told me some of the other items (sensory tools and hoists) are already at the SIL."

"33 I am satisfied that decisions are being made (or not made) by [the Support Coordinator] that have resulted in [the Daughter] living less than her best life. There appears to be a breakdown in the relationship between [the Manager] and [the Support Coordinator]. It has been present for several years. I was concerned about the personal nature of the discord between [the Support Coordinator] and Northcott management. There is a long history of poor communication by telephone and in writing. A consequence of that is that time is wasted in fruitless communication rather than focussing on [the Daughter]'s needs. The decline in the relationship has reached a point where it is combative and resulting in services not being provided to [the Daughter] in a timely manner. [The Father] has no concerns about the services provided by [the Support Coordinator]."

1. At [37], under the heading "Who should be appointed as the guardian with the services function?", the Tribunal said:

"37 [the Father] has confidence in [the Support Coordinator]. I am not satisfied that in exercising that confidence that [the Father] is able to exercise that function in accordance with s 17(1) of the Act. There are delays in attending to matters which are reasonable but the failure to communicate with Northcott management by [the Support Coordinator] has had adverse consequences for [the Daughter]. The impediment has existed for several years, has been flagged in writing and yet has not resolved. In those circumstances [the Father] is not adequately exercising that function."

1. As the Separate Representative and Father correctly point out, the Tribunal did not adjudicate on each of the four allegations made by the Manager about the Support Coordinator listed at [29]. Nor did the Tribunal refer to all of the evidence given, and submissions made by, the Support Coordinator and the Father in response to those allegations. The question raised is whether this permits the inference being drawn that the Tribunal failed to have regard to that evidence?
2. With respect to allegations 1 and 3 (the alleged delay caused by the Support Coordinator in relation to the 2021 and 2024 NDIA requests), contrary to the submissions made by the Father and the Separate Representative, the Tribunal did not accept the Manager's claim that the Support Coordinator was solely responsible for those delays. At [32], the Tribunal accepted the Support Coordinator's claim that it was not "a simple matter to obtain funding approval for a wheelchair [one of the items the subject of the 2024 NDIA request] that could cost $15-20,000". At [37], apparently in reference to the alleged delays in relation to the 2021 and 2024 NDIA requests, the Tribunal said, "there are delays in attending to matters which are reasonable".
3. With respect to allegation 4, that the Support Coordinator failed to submit a timely request to the NDIA for funding to enable six items considered by the Manager to be necessary for the Daughter's health and wellbeing, at [32], the Tribunal expressly referred to the Support Coordinator's response to four of those items - the special padded rug, the wheelchair, sensory tools and hoists. With respect to the special padded rug (item 1), the Tribunal found the Support Coordinator's evidence to be "trite and evasive" and implicitly accepted the Manager's opinion that the item would assist the Daughter by "cushion[ing] any fall if [she] fell out of bed". With respect to the wheelchair (item 5), as discussed above, the Tribunal accepted the Support Coordinator's claim that, given its significant cost, it was not "a simple matter" to obtain funding for a wheelchair. With respect to the sensory tools and hoists (items 2 and 4), the Tribunal referred to, and apparently accepted, the explanation given by the Support Coordinator that those items were already at the place where the Daughter was living.
4. With respect to allegation 2 - the Support Coordinator's alleged failure to respond to any emails sent by the Provider between November 2021 and late January 2022 - in its Reasons, the Tribunal did not expressly refer to that allegation. However, at [32], the Tribunal referred to the statement made by the Support Coordinator that he speaks to the Provider's Care Manager "mostly daily". Read in context, it is apparent that this statement was a reference to the Support Coordinator's response to allegation 2. The Support Coordinator conceded that he was not in regular contact with the Manager but said that he was nonetheless in regular contact with the Provider's employees who were responsible for the Daughter's day to-day care.
5. As the analysis above reveals, the Tribunal referred briefly to most of the allegations made. The discussion about the particulars of those allegations was brief but nonetheless reveals that the Tribunal dealt with the substance of the central allegations made by the Manager: that action or inaction by the Support Coordinator, together with a lack of communication between the Support Coordinator and the Provider's management, had contributed to services not being provided to the Daughter in a timely manner. The fact that the Tribunal did not simply accept each of the claims made by the Manager goes against the contention that the Tribunal failed to consider, or to properly consider, the evidence given in response to those allegations.
6. In determining the review application, the Tribunal was entitled to decide for itself the factors relevant to the central question raised by that application: whether the Father was able to exercise the services function in a manner which conformed with the section 4 principles. The Tribunal was not required, as the Father and the Support Coordinator contend, to determine and find proven each of the allegations made by the Manager. It was entitled to identify for itself the matters relevant to the central allegation made by Manager that the Father's full support of the Support Coordinator was misplaced. As is apparent, the Tribunal placed significant weight on the fact that, as revealed by the evidence given by all parties, the nature of the relationship between the Manager and the Support Coordinator had become combative and had been strained for some years.
7. Ground 1, the contention by the Father and the Separate Representative that the Tribunal failed to have regard to the evidence given by the Support Coordinator and the father in response to the Manager's allegations, is therefore rejected.

1. By ground 2, the Father contends that there was no evidence to support the following findings:

(1) that "decisions are being made (or not made) by [the Support Coordinator] that have resulted in [the Daughter] living less than her best life": at [33];

(2) that "the decline in the relationship [between the management of the Provider and the Support Coordinator] has reached a point where it is combative and resulting in services not being provided to [the Daughter] in a timely manner": at [33]; and

(3) that "there are delays in attending to matters which are reasonable but the failure to communicate with Northcott management by [the Support Coordinator] has had adverse consequences for [the Daughter]": at [37].

1. With respect to the first of these above findings, the Father and the Separate Representative assert that the Tribunal failed to identify the decision said to have been made or not made by the Support Coordinator that resulted in the Daughter "living less than her best life". Likewise, with respect to the second and third findings, the Father and the Separate Representative assert that the Tribunal failed to identify the services said not to have been provided to the Daughter in a timely manner, or the "adverse consequences" she is said to have suffered.
2. In addition, the Father and the Separate Representative contend that the Tribunal failed to articulate how the Support Coordinator's alleged conduct - the decisions he made or failed to make, and the failure to communicate with the Provider (the impugned conduct) - resulted in "adverse consequences" for the Daughter. In short, they contend the Tribunal failed to identify the causal link between the impugned conduct and the adverse consequences said to have been suffered by the Daughter.
3. Finally, the Separate Representative contends that the use of the term "living less than her best life" at [33] indicates that, in evaluating whether it was satisfied that the Father was able to exercise the services function, the Tribunal imposed an additional test: that he had "to demonstrate that the Daughter was 'living her best life'".
4. The Manager disagreed and contended that each of the above findings were open to the Tribunal on the available evidence

1. It is an error of law to reach a factual conclusion for which there is no evidence: Australian Broadcasting Tribunal v Bond (1990) 21 ALD 1; [1990] HCA 33 at 23 (Bond); Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390; [2010] HCA 32 at [91].
2. In Bond, Mason CJ noted at 24 that there was "no error of law simply in making a wrong finding of fact" and "want of logic is not synonymous with error of law". The Chief Justice went on to explain:

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

1. Referring to the above statement, Basten JA in L & B Linings Pty Ltd v WorkCover Authority of New South Wales [2012] NSWCA 15 at [34] added four "points of caution":

"First, this passage indicates that the 'no evidence' ground of judicial review depends not on the reasoning of the decision-maker, but on a comparison between the material available to the decision-maker and the conclusion reached. Secondly, care must be taken with the term 'no evidence', as an administrative decision-maker is usually entitled to take into account material which would not count as 'evidence' in a judicial context. In what is essentially an inquisitorial inquiry, that material is not necessarily limited to the material placed before the decision-maker by the applicant for review. Thirdly, it is important to bear in mind that the decision-maker may be entitled to seek support for a particular inference from the absence of material supportive of a contrary view. Fourthly, where an evaluative judgment is to be formed on the basis of conflicting indicators, it will be difficult if not impossible to establish a 'no evidence' ground of review."

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

1. It is not in dispute that the relationship between the Support Coordinator and the Provider, in particular, the Manager, was strained, and had been so for some years. Nor is it disputed that there was a history of poor communication between the Support Coordinator and the Manager. The question raised by this ground is whether there was any evidence that the Daughter was adversely affected as a result.
2. There is considerable overlap between this ground and ground 1.
3. Read fairly and as a whole, it is apparent from the Reasons that by the term "adverse consequences" (at [37]), the Tribunal was referring to its finding at [33], that "services [were] not being provided to [the Daughter] in a timely manner". The assertion that there was no evidence, or no probative evidence, to support that finding must be rejected. The Tribunal had before it evidence given by the Manager that there had been delays in applications being made to the NDIA for variations to be made to the Daughter's NDIS plan. That claim was supported by a series of emails between the Manager, the Father and the Support Coordinator filed in the proceedings on 9 August 2024. While, as previously stated, the Tribunal did not find the Support Coordinator wholly responsible for those delays, it found his failure to communicate with the provider and the breakdowns in his relationship with the Provider had contributed to those delays.
4. Undoubtedly, as emphasised by the Separate Representative and the Father, there was evidence to counter the Manager's claim that there had been delays in services being provided to the Daughter for which the Support Coordinator was responsible. However, it does not follow that there was no evidence to support the Manager's claims. This ground is, in truth, a challenge to the weight given by the Tribunal to the Manager's evidence and the merits of the finding that the Daughter had suffered adverse consequences as a result of the Support Coordinator's failure to communicate with him, and the breakdown in his relationship with the Support Coordinator.
5. The Tribunal did not expressly identify the adverse consequences said to have been suffered by the Daughter as a result of the delays in services being provided to her. However, it is implicit that the Tribunal was referring to the additional services that were the subject of the 2021 and 2024 NDIA requests, apparently necessitated because of the Daughter's deteriorating health and mobility.
6. Finally, the contention that the use of the phrase "living less her best life" indicated that the Tribunal had misapplied s 17(1) of the Guardianship Act, raises a different and discrete issue to the "no evidence" ground. In any event, it cannot reasonably be suggested that the use of that phrase demonstrated the Tribunal required the Father to meet a more onerous requirement than imposed by s 17(1)(c) - "to be able to exercise the [services] function". Read in context, it is apparent that the Tribunal used that expression, and the expression 'adverse consequences for the Daughter', to mean much the same thing.
7. This ground of appeal is rejected.

1. The Father contends that the Tribunal failed to afford him procedural fairness by cutting the hearing short, and not giving him and the Support Coordinator an adequate opportunity to respond to the allegations made by the Manager. He points out that in the Reasons at [17] the Tribunal said that it was "unfortunate" that the hearing of the review application had been allocated only 60 minutes.
2. The Manager disagrees and contends that the Tribunal gave all parties adequate time to speak.

1. The Tribunal was obliged to afford all parties, including the Father, procedural fairness: 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).
2. At the end of the hearing, consistent with the comment about it being "unfortunate" that only an hour had been allocated for the hearing, the Tribunal said:

"Alright, so I'll reserve, unfortunately, I have to hurry everybody out. I've got a matter, another matter at 10:30. We really should have had more time for this matter, but thank you. I'll reserve. I'll give a decision in the next 24 hours."

Tcpt, 17 September 2024, 54:30

1. The transcript of the hearing on 17 September 2024 reveals that the Tribunal questioned the Father at length about the circumstances which led him to make an advanced care directive for the Daughter and the reasons for that decision. The Tribunal also questioned the Father about the services function. A large part of the hearing was devoted to the Tribunal questioning the Support Coordinator about his response to the allegations made by the Manager. It is apparent from the questions asked of the Father, the Support Coordinator and the Manager that the Tribunal was familiar with the material filed before the hearing and had identified the issues in dispute. This enabled the Tribunal to make efficient use of the hearing time. The questions asked by the Tribunal were concise and relevant.
2. Towards the end of the hearing, in answer to the Tribunal's invitation, "[d]oes anyone have anything further to say?", the Father made a further submission, reiterating what he had said earlier in the hearing which was to the effect that the allegations made by the Manager about the Support Coordinator being responsible for the delays in services being obtained for the Daughter must be seen in the context of the difficulties in dealing with the NDIA. (see Tcpt 51:46 - 54:30).
3. Undoubtedly, there was limited time available for the hearing. Nonetheless, the transcript does not support the claim that the Tribunal cut the hearing short or did not give the Father or the Support Coordinator an adequate opportunity to make submissions or give evidence. Both the Father and the Support Coordinator were articulate and able to answers the questions asked and to make submissions. The Father has not referred us to any part of the transcript which might suggest that he and/or the Support Coordinator asked for additional time to elaborate on their evidence or submissions, or, were "cut short" when addressing a particular topic.
4. We accept that the Father holds the genuine belief that he was given inadequate time to present his case. However, the available material does not support that claim.
5. This ground of appeal must be rejected.

1. The Father contends that, by conducting the hearing in her absence, the Tribunal failed to afford the Daughter procedural fairness. The Father acknowledges that because of the extent of her disabilities, the Daughter would not have been able to participate in the hearing or to communicate her views. However, he contends that had the Tribunal had the benefit of seeing the Daughter, it would have had a better understanding of her circumstances and the extent of her disabilities.
2. The Manager disagrees. He said the Daughter attended all but the first 15 minutes of the hearing, when the House Manager who was accompanying the Daughter had difficulties activating the audio-visual link provided by NCAT. The Father disputes the claim that the Daughter was present for all but the first 15 minutes of the hearing.

1. The Tribunal was required to afford the Daughter procedural fairness and to take such measures as are reasonably practicable to ensure that she had a reasonable opportunity to be heard: NCAT Act, ss 38(2), 38(5)(c). In addition, in reviewing the 2022 order, the Tribunal was required to have regard to her views: Guardianship Act, ss 4(d), 14(2)(a)(i); NCAT Act, cl 5(1) of Sch 6.
2. The Daughter was not listed in the Reasons as one of the people who attended the hearing. The transcript does not indicate whether the Daughter was in attendance.
3. About three minutes into the hearing, when asked by the Tribunal whether the Daughter would be participating, the Father replied that the Daughter "can't participate" and that "he had "requested that she be available if she was required or wanted". (Tcpt 3:10). There was no further discussion about the Daughter's participation in the hearing.
4. For the purpose of considering this ground, we will assume without deciding, that, as claimed by the Father, the Daughter did not attend the hearing.
5. The question raised by this ground is whether the Tribunal took such steps as reasonably practicable to ensure that the Daughter had a reasonable opportunity to be heard.
6. In ZQB v ZPV [2020] NSWCATAP 274, an NCAT Appeal Panel considered the question of whether by conducting a hearing by telephone, in circumstances where the person the subject of those proceedings had a hearing impairment, the Tribunal had complied with its obligation to afford procedural fairness. Referring to the comment made by Brennan J in Kioa v West [1985] HCA 81; (1985) 159 CLR 550 at 615, that the obligation to afford a party procedural fairness is "chameleon-like" and depends on the circumstances of the particular case, at [26] the Appeal Panel identified the circumstances in that case that informed the nature and content of that obligation:

"(1) The statutory framework: The Tribunal was obliged to afford the Subject Person procedural fairness: s 38(2) of the NCAT Act. Among other things, the Tribunal was required to take such measures as are 'reasonably practicable' to ensure the Subject Person understood the nature of the proceedings (s 38(5)(a) of the NCAT Act) and to ensure that he had a reasonable opportunity to be heard or otherwise have his submissions considered in the proceedings (s 38(5)(c) of the NCAT Act).

(2) The obligation to have regard to the views of the Subject Person. In reviewing the 2017 Order, the Guardianship Act and the NCAT Act instructed the Tribunal to have regard to the views of the subject person: ss 4(d), 14(2)(a)(i) of the Guardianship Act; cl 5(1) of Sch 6 to the NCAT Act.

(3) The nature of the decision: The decision made by the Tribunal directly and significantly affected the Subject Person's interests. It determined whether decisions about his 'person' should be made by another person, who should be appointed guardian(s) and what type of decisions they should be empowered to make.

(4) The Subject Person's circumstances: The Subject Person has a significant intellectual disability which impacts upon his capacity to comprehend and to communicate."

1. Those circumstances are equally applicable to the proceedings the subject of this appeal.
2. The Appeal Panel went on to say, at [27], that to satisfy the obligation to afford procedural fairness to a person the subject of, or proposed subject of, an order made under the Guardianship Act, a Tribunal "must do something more than merely hold a hearing and invite the Subject Person to participate". The Appeal Panel went to say that what that "something more" entails will depend on the circumstances of the case, which includes: (1) the nature of the Person's disability; (2) the likely ability of the Person to participate in a hearing and to express their views; (3) the assistance and support, if any, likely to be provided at the hearing to the Person by friends, family, support workers etc; and (4) whether the Person's ability to participate in the hearing and/or express a view is likely to be enhanced or facilitated if they were to be provided additional assistance or support.
3. In determining whether "something more" and, if so what, could have been done to facilitate the participation of the Daughter in the hearing, we consider the following matters to be relevant:

(1) The Daughter has a severe disability and is unable to communicate verbally.

(2) Neither the Father, the Support Coordinator nor the Manager suggested that if the Daughter were provided with some form of support, she may have been able to participate in the hearing.

(3) Before the hearing, a staff member the Guardianship Division made enquiries about whether the Daughter would be participating. In a hearing report provided to the Tribunal and the parties before the hearing, the staff member recorded that "due to her disabilities the views of [the Daughter] could not be obtained".

(4) The Daughter did not attend the May 2022 hearing to review the 2017 guardianship order. The Tribunal (differently constituted) noted that the Father said that the Daughter did not communicate verbally and would not have any understanding of the nature of the proceedings: Reasons, NCAT, 3 May 2022 at [3]. The Tribunal decided to proceed to review the guardianship order in the Daughter's absence finding that "she would not be disadvantaged by not attending": Reasons, NCAT, 3 May 2022 at [3].

1. The Father and the Support Coordinator know the Daughter well. Each has a genuine concern for her welfare and interests. Because of his long history of supporting the Daughter and working closely with her treating health practitioners and care providers, the Father is well-placed to comment on the Daughter's abilities. So too is the Support Coordinator, who is an experienced practitioner with a long history of working with the Daughter and people with disabilities. We accept their opinion that, because of her disabilities, the Daughter would be unable to participate in the hearing. Neither have been able to suggest any additional supports that, if provided, might have facilitated the Daughter's participation in the hearing. It is not apparent what more could have been done to facilitate the participation of the Daughter in the hearing, or to use the language of the NCAT Act, "the measures as are reasonably practicable to ensure that [the Daughter] had a reasonable opportunity to be heard".
2. We are not persuaded that by conducting the hearing in her absence the Tribunal failed to afford the Daughter procedural fairness.
3. This ground of appeal fails.

1. The Father contends that the decision under appeal was invalid because the Tribunal was not properly constituted and did not include a "disability representative".
2. With respect, the Father is mistaken.
3. When exercising its substantive functions under the Guardianship Act, the Tribunal must be constituted by three "Division members": a lawyer, a member with a "professional qualification" and a member with a "community based qualification": NCAT Act, Sch 6 cl 4(1). However, in the exercise of certain substantive functions, including reviewing a guardianship order under Div 2 of Pt 3A of the Guardianship Act, the Tribunal may be constituted by one or two members: NCAT Act, Sch 6 cl 4(2).

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.