YNL v Western Sydney Local Health District

1. By Notice of Appeal filed on 28 April 2025, Ms K and Mr B, as we shall refer to the Appellants, appealed against orders made by the Guardianship Division of the NSW Civil and Administrative Tribunal on 18 February 2025 appointing the NSW Public Guardian as the guardian for YRA for a period of twelve months and allocating functions with respect to accommodation, health care, medical/dental consent and services to the Public Guardian. In lieu of those orders, the Appellants sought that they be appointed as guardians for YRA with respect to accommodation, health care, medical/dental consent and services.
2. The parties to the proceedings before the Guardianship Division were Western Sydney Local Health District (WSLHD) which was the Applicant at first instance, the Appellants and the Public Guardian. Mr B is YRA's husband. Ms K is apparently a friend of Mr B.
3. On 4 June 2025, WSLHD filed a Reply supporting the decision of the Tribunal and opposing the appeal, but did not otherwise participate in the proceedings. The Public Guardian filed no material in the appeal.
4. On 23 June 2025, Ms K filed an outline of submissions and a number of supporting documents on behalf of herself and Mr B.
5. On 16 July 2025, having been appointed Legal Separate Representative for YRA, Mr Ben Fogarty of Counsel filed written submissions opposing the appeal, or the granting of leave to appeal.

1. The Tribunal reviewed the previous guardianship order for YRA which had been made on 10 October 2024. In that order, the Tribunal appointed Mr B and Ms K as YRA's guardians and allocated them health care and services functions. In addition, the Tribunal appointed the Public Guardian with an accommodation function. As background to its decision, the Tribunal recorded [2] that YRA was "a 62 year old woman of Filipino heritage who is a long time involuntary patient at the Banksia Unit of Cumberland Hospital. She has been diagnosed with schizophrenia." While an involuntary patient, and without the knowledge of staff, YRA married Mr B whilst on day leave on 19 October 2024 [3]. YRA has been "known to the Tribunal since 2011". The NSW Trustee and Guardian is her financial manager [4].
2. On 10 October 2024, the Public Guardian was granted the function of accommodation for YRA, and the Appellants were appointed as joint guardians with the functions of health care and services, for a period of twelve months.
3. On 6 January 2025, WSLHD applied to the Tribunal to review the guardianship order and sought that the Public Guardian be appointed as the sole guardian "due to the challenges of working with the private guardians" [5].
4. On 22 January 2025, the Tribunal appointed a Separate Representative. That representative was not Mr Fogarty of Counsel.
5. The Tribunal recorded, correctly, the issues which it was required to decide [9], as being:

(i) whether YRA was someone for whom the Tribunal could make an order because she continues to have a disability which prevents her from being able to make important life decisions;

(ii) whether the Tribunal should make a further guardianship order and, if so, what order should be made;

(iii) who should be YRA's guardian; and

(iv) the duration of any order which the Tribunal should make.

1. The Tribunal considered whether YRA continues to have a disability which prevents her from being able to make important life decisions by reference to s 14 of the Guardianship Act 1987 (NSW), which refers to "a person in need of a guardian" and to the definition of that term in s 3(1) of that Act. The Tribunal referred [11] to the finding when the previous guardianship order was made that YRA had a disability, chronic schizophrenia and to her being unable to make important life decisions.
2. The Tribunal referred [12] to a report by YRA's treating psychiatrist dated 20 December 2024, in which YRA was described as being "floridly psychotic" and continuing to lack capacity to make lifestyle decisions. The Tribunal found [13] that YRA "remains in need of high level mental health care". The Tribunal was accordingly satisfied [14] that YRA continues to have a disability which prevents her from making important life decisions, and is thus a person for whom the Tribunal could make a further guardianship order.
3. The Tribunal then considered whether it should make a further guardianship order, and if so what that order should be. The Tribunal referred [15] to the considerations mandated by s 14(2) of the Guardianship Act. The Tribunal recorded [16] that the matters articulated in s 14(2) of the Guardianship Act "have no hierarchy or weighting and each is a mandatory consideration", and that the Tribunal must undertake a "balancing exercise" when considering the matters referred to in s 14(2). By reference to the decision in IF v IG [2004] NSWADTAP 3, the Tribunal accepted that when undertaking its evaluative task the objects articulated in s 4 of the Guardianship Act could provide guidance.
4. The Tribunal identified that the application had previously been brought "because of a perceived conflict of interest or misconduct arising from recent dealings by the private Guardians". The Tribunal then recorded a number of matters of relevance in that context by reference to YRA's treating Psychiatrist's report and Bankstown Hospital clinical notes.
5. The Tribunal recorded [18] that the eight matters particularised by it (at [17]) were "only some of the lengthy 11 page document but it goes to show the concerns of the treating team at the Banksia Unit". The Tribunal recorded the concern of the treating team that "Guardians do not need to agree with clinical treating teams of course. In fact a guardian's view helps generate a positive and least restrictive plan for services uses. Guardians can also express an opposite view to the team; that too can be valuable. However, the current co-guardians for services and health care appear to have used their powers to attempt to force inflexible outcomes desired by them even when good faith attempts are made to explain these to them."
6. The Tribunal accepted [19] the opinion evidence of YRA's treating team, "based on the knowledge, experience and contemporaneous notes of the Consultant Psychiatrist". The Tribunal referred [20] to YRA's appearance at the hearing and to a number of matters which YRA informed the Tribunal of. The Tribunal [21] accepted that evidence, and took it into account.
7. The Tribunal referred [22] to the evidence of Mr B that he hoped YRA could live at his parents' home or move to a Supported Independent Living environment. Mr B said that YRA's property at Riverstone required significant repairs to render it habitable, and that he had acted as YRA's carer for about 10 years.
8. The Tribunal referred [23] to Ms K's appearance at the hearing by audio visual link, and to her statement that there had been a "breakdown" in communication with Banksia staff when pursuing a National Disability Insurance Scheme (NDIS) application for YRA. The Tribunal recorded Ms K as not believing that there was any "hostility" between herself and Banksia Unit staff, denying that she was "harassing staff", but maintaining that there was a "lack of knowledge of YRA's circumstances and needs". The Tribunal did not accept that evidence as objectively accurate. The Tribunal recorded that there "have been multiple meetings between [Ms K] and staff at the unit including the most senior psychiatrists. He [sic] intention is to act diligently in securing [YRA's] timely discharge form [sic] hospital". The Tribunal accepted that was a "commendable goal" but that it must only be done when it is safe to do so for YRA, and should not be "expedited" before that is so.
9. The Tribunal referred [24] to the evidence of JS, a member of YRA's treating team who expressed concern that YRA was married at a time when she was an involuntary patient pursuant to an order of the NSW Mental Health Review Tribunal and had a disability that required the appointment of a guardian. JS said that the Ms K had "threatened" staff with litigation. The Tribunal accepted the evidence of JS that staff had acted at all times within Health Department guidelines when providing care to YRA, and that YRA's treating team remained of the view that she was "not ready" for discharge from the Banksia Unit.
10. YRA's treating Psychiatrist, Dr P, gave evidence [25] that there were no "advance plans" for YRA to be discharged "at present" which the Tribunal observed was "at odds" with Ms K's repeated requests for YRA to leave the Banksia unit and live with her parents.
11. The Tribunal referred to the evidence of AG [26], representing the Public Guardian. Three accommodation proposals had been submitted to her for YRA. AG did not consider that YRA was "well enough" to be discharged, but has supported day leave on a Saturday and Sunday. The Tribunal accepted AG's evidence "based on her knowledge and experience".
12. Dr L, YRA's niece, who lives in New Zealand, informed the Tribunal that she "trusts" Mr B [27]. Dr L "expressed concern that the MRI brain scan appears to have not occurred due to the involvement of the private guardians".
13. The Tribunal found [28] to its comfortable satisfaction that YRA remains in need of a guardian, and that YRA and her treating team supported a continuation of a guardianship order. The Tribunal recorded [29] that YRA had been receiving care in a hospital setting since 2023 and to the absence of current intention for her to be discharged from the Banksia Unit. The Tribunal was thus satisfied that decisions need to be made about YRA's accommodation and the services she receives when she leaves hospital.
14. The Tribunal then addressed the question of who should be appointed as YRA's guardian. The Tribunal referred [31] to the written and oral submissions of the Separate Representative, HA. The Tribunal accepted HA's evidence that YRA is "very comfortable" in Mr B's presence. HA submitted that Ms K should be removed and replaced as YRA's guardian as "she cannot bring a dispassionate opinion to the role", there being "an element of secrecy in dealings involving [YRA]". HA submitted that the decision to obstruct an MRI brain scan, needed for YRA's diagnosis, "reasonably simple and obviously to [YRA's] benefit" and the reasons for such obstruction were not in YRA's best interest.
15. Ms K was recorded as having made allegations of bias and undue influence by staff "without a proper basis". HA did not oppose the continuation of Mr B as a private guardian. The Tribunal recorded that Dr L agreed with HA, and supported Ms K's removal as a guardian "given the conflict with the treating team and the failure to approve the MRI". Dr L did not oppose the sole appointment of the Public Guardian. The Tribunal accepted Dr L's evidence.
16. The Tribunal referred to Ms K's submissions in support of her contention that she should remain as a private guardian [34]. Ms K asserted that she had "acted diligently in pursuing [YRA's] discharge from hospital", and that she feels that YRA's treatment team was "not well informed as to the need for an MRI and it was reasonable not to consent to it". The Tribunal recorded [35] that Mr B expressed "concern" about the need for repeated MRIs and that he was willing to continue as a guardian. The Tribunal recorded [36] YRA's Consultant Psychiatrist, Dr P, "on behalf of the treating team" "strongly" supporting the removal of the private guardians "noting the aggressive nature of [Ms K's] approach to the role, the inability to advance matters that [Ms K] considers are not important to her agenda and the secrecy surrounding the marriage". The Tribunal recorded that YRA "supported" the continuing appointment of Mr B and Ms K as her guardians.
17. The Tribunal referred [38] to the requirements for appointment as a private guardian articulated in s 17(1) of the Guardianship Act which require that a guardian:

(a) have a personality generally compatible with the personality of the person under guardianship;

(b) have no undue conflict of interest (particularly financial) with those of the person; and

(c) be able and willing to exercise the functions of the order.

1. The Tribunal recorded [39] that it must consider whether the proposed guardian is able, in all the circumstances, to exercise the functions in accordance with the principles set out in s 4 of the Guardianship Act.
2. The Tribunal referred [40] to the decision of the Supreme Court in P v D1 & Ors [2011] NSWSC 257 with respect to the importance of a proposed guardian being able to demonstrate insight and explain plans for how to act as guardian objectively and without conflict of interest. The Tribunal referred [41] to s 15(3) of the Guardianship Act, which provides that the Tribunal is not able to appoint the Public Guardian as a person's guardian if there is a private person who can be appointed. The Tribunal referred [42] to the decision in W v G [2003] NSWSC 1170 at [25] in which it was held that s 15(3) is to be read as "saying that the Public Guardian should not be appointed in circumstances in which an order can properly be made in favour of another person. That requires not only that the person be willing, reliable and responsible, but that the appointment will result in the policy considerations and principles set forth in the Act being given effect."
3. The Tribunal found [43] that neither Ms K nor Mr B should remain a guardian for YRA. Ms K was found to have linked "medical consent decisions to unmet demands for documents" indicating a "lack of insight" to the essential function of the role of guardian and placing her needs above those of YRA. The Tribunal found that Ms K had also demonstrated an inability to communicate effectively with YRA's treating team of health professionals. The "lack of transparency" surrounding YRA's marriage to Mr B also "raised concerns for us about her insight to the role and gave rise to a perception of conflict of [sic] interest for both [Ms K] and [Mr B]". The Tribunal reiterated the need for a guardian to "maintain family relations", and found that Dr L and other family members had been "sidelined" by Ms K's conduct. The Tribunal inferred [44] that Ms K had been the "controlling mind" of the joint guardians, having been the author of most correspondence and driver of most or all decisions.
4. The Tribunal found [44] that if Mr B remained in the role of guardian, he would be the "subject of [Ms K's] influence" having not been "active and involved" as YRA's guardian and, if he remained in the role being the "cypher" of Ms K, deferring to her in decision-making. The Tribunal reiterated however that Mr B remains entitled to be consulted by the new guardian as YRA's husband.
5. For those reasons, the Tribunal was not satisfied [45] that Mr B or Ms K met the requirements to be appointed as guardians for YRA and that [46] there being no private person available to be appointed as guardian the Tribunal appointed the Public Guardian.

Whether the Appeal Panel should dispense with a hearing

1. Ms K informed the Appeal Panel that she was unable to appear at the appeal hearing, but was content for the matter to be determined "on the papers" without a hearing. Mr B did not seek to participate in the hearing. As the Appeal Panel will dismiss the appeal, and refuse leave to appeal, no injustice could flow to other parties by dispensing with a hearing in accordance with s 50 of the Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act). Sensibly, Mr Fogarty of Counsel as the Separate Legal Representative for YRA, did not oppose an order dispensing with a hearing on the papers.
2. The Appeal Panel is satisfied that the parties have been afforded the opportunity to make submissions in opposition to an order dispensing with a hearing as required by s 50(3) of the CAT Act. The Appeal Panel is satisfied that, pursuant to s 50(2) of the CAT Act, the issues for determination can be adequately determined in the absence of the parties by considering the written submissions and other documents before us, and will order that a hearing of the appeal be dispensed with. Lest that cause any party concern, the Appeal Panel will give the same proper, genuine and realistic consideration to the merits of the case that it would have if there had been a hearing.

1. Pursuant to s 80(2)(b) of the CAT Act, the Appellants may appeal as of right on any "question of law" or with leave appeal on "any other grounds". What constitutes a question of law is not in doubt. In John Prendergast and Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [13], the Appeal Panel provided a non-exhaustive list of errors on a question of law, including:

(a) whether there has been a failure to provide proper reasons;

(b) whether the Tribunal identified the wrong issue or asked the wrong question;

(c) whether a wrong principle of law had been applied;

(d) whether there was as failure to afford procedural fairness;

(e) whether the Tribunal failed to take into account relevant (mandatory) considers;

(f) whether the Tribunal took into account an irrelevant consideration;

(g) whether there was no evidence to support a finding of fact; and

(h) whether the decision was so unreasonable that no reasonable decision-maker would make it.

1. The principles governing applications for leave to appeal are also not in doubt. In Secretary, Department of Family and Community Services v Smith [2017] NSWCA 206, the Court of Appeal at [28] said (citations omitted) that:

"Only if the decision is attended with sufficient doubt to warrant its reconsideration on appeal will leave be granted. Ordinarily, it is only appropriate to grant leave where there is an issue of principle, a question of general public importance, or an injustice which is reasonably clear, in the sense of going beyond what is merely arguable. It is well established that it is not sufficient to merely show that the trial judge was arguably wrong."

1. The Appellants did not articulate any questions of, law or identify the basis on which they sought leave to appeal in their 26-page closely typed outline of historical matters, statutory provisions and submissions.
2. On 16 June 2025, the Appeal panel varied directions with respect to the filing of documents in the appeal which had been made on 21 May 2025. Those directions [2] required the Appellants by 18 June 2025 to lodge the evidence which was before the Tribunal at first instance on which it was intended to rely, any evidence not provided to the Tribunal at first instance on which the Appellant sought leave to rely and if "what happened at the hearing at first instance is being relied upon by the Appellant in the appeal, a typed transcript of the relevant parts of the hearing".
3. Ms K did not identify which of the documents attached to her outline of contentions had been before the Tribunal at first instance, and did not provide a transcript of the hearing. In the absence of the latter, unless referred to contradictory evidence which was before the Tribunal at first instance, the Appeal Panel proceeds on the basis that the substance of what the Tribunal held had been said was in fact said. Unless it is apparent from other materials before the Appeal Panel, in the absence of the transcript, the Appeal Panel cannot accept that relevant matters alleged to have been raised by the Appellants to which the Tribunal did not refer in its reasons were in fact raised.
4. The Appeal Panel accepts that, as litigants in person, the Appellants cannot be expected to articulate their complaints in the manner in which a legal practitioner could be expected to do so in grounds of appeal. The Appeal Panel has considered the Appellants' material in order to discern whether, howsoever articulated, merit has been demonstrated. However, it is not sufficient for an appellant to simply advance or reiterate conclusions, allegations or unqualified opinions, and expect the other parties to the appeal and the Appeal Panel to go through that material with a view to discerning for itself a basis for appellate intervention (Reisner v Bratt [2004] NSWCA 22, at [4]-[6]).
5. In his comprehensive submissions, after identifying relevant matters of background and his statutory role, Mr Fogarty of Counsel helpfully, and our view accurately, suggested that the Appellants appeared to assert five grounds of appeal:

(a) an error of law by reason of a misapplication of guardianship principles;

(b) failure to consider relevant and material evidence;

(c) procedural unfairness and unsubstantiated findings;

(d) substantial injustice to the protected person; and

(e) public interest and precedent.

1. In the absence of the transcript, or other evidence advancing such claim, and the Appeal Panel has not been referred to, or discovered such evidence, any complaint about procedural unfairness advanced by the Appellants cannot succeed. Significantly, the Appellants do not identify any evidence, material or submission which they assert they were denied the opportunity to present or advance before the Tribunal.
2. Mr Fogarty submissions, correctly, recorded a number of "important principles" in the protective jurisdiction before turning to the appeal. He submitted, and the Tribunal has earlier accepted that the Appellants' challenges to the decision at first instance are not required to be identified with the precision expected of a party who is legally represented (STAR Training Academy Pty Ltd v Commissioner of Police (No 2) [2022] NSWCATAP 98; Theophilas v Chief Commissioner of State Revenue [2018] NSWCATAP 111). Mr Fogarty further submitted that simply agitating or reagitating a series of complaints, without attempting to identify any legal or other basis for doing so could not enliven appellate intervention. There is force in that submission.
3. Mr Fogarty submitted [24] that the material relied on by them did not demonstrate that any of the Appellants' apparent appeal grounds constituted an error of law. Mr Fogarty submitted [26], that, based on the material which had been made available to him and a review of its reasons, the Tribunal at first instance did "turn its mind" to each of the questions it was required to consider, and did so by reference to the evidence which was before it. Mr Fogarty submitted that the Appellants did not challenge the findings of primary fact made by the Tribunal at first instance. Although the outcome is no different, the Appeal Panel has considered whether the Appellants demonstrate that any finding of primary fact made by the Tribunal was "wrong" (Edwards v Noble (1971) 125 CLR 296; [1971] HCA 54). The Appellants bear the onus in that regard. It is not for a party resisting the appeal to demonstrate that challenged findings were "right", or the only findings which were reasonably open to the Tribunal.
4. On essentially the same basis, Mr Fogarty submitted that no basis for a grant of leave has been demonstrated by the Appellants.

1. In the absence of any asserted connection with the reasons for the decision of the Tribunal, of the evidence which was before it, or findings of the Tribunal which were assertedly made in the absence of evidence, the Appeal Panel is not required to traverse the many and varied complaints made by the Appellants in their material in order to determine whether error is demonstrated.
2. The Appellants' material contains a report from the Banksia Unit treating team dated 26 May 2025, which clearly came into existence after the decision of the Tribunal at first instance. To the extent that the Appellants seek to rely upon the report, they have not made an application for leave to do so. Having included it in their appeal material, it can be inferred that the Appellants intended the Apeal Panel to consider the report. The Appeal Panel has considered the report. The report records ongoing treatment afforded to YRA since the decision of the Tribunal and, importantly, the treating team's involvement, or attempted involvement of Mr B in that process. The report concluded that "Given the progress already made with the involvement of this current Public Guardian, the treating team strongly recommend that the existing order (implemented on the 18th of February 2025) continue under the jurisdiction of the NSW Public Guardian." The report does not advance the Appellants' case, and "buttresses" the decision of the Tribunal at first instance (CDJ v VAJ (1998) 197 CLR 182; [1998] HCA 67; 73 ALJR 230).
3. The Appellants filed 12 documents appearing in a bundle numbered from pages 3 to 99, and four additional documents appearing in the bundle at pages 103 to 115 of the bundle. The Appellants have not identified which, if any, of the documents were before the Tribunal at first instance. Nor have the Appellants identified why, irrespective of whether they were before the Tribunal at first instance, the documents would or should have led to a different decision. The Appellants included submissions that, at least inferentially, were, or could have been made to the Tribunal at first instance. The Appellants do not appear to make submissions the substance of which was not made before the Tribunal at first instance, and referred to in its reasons. The Appeal Panel has considered the source documents provided by the Appellants, but has not discovered anything in them which advances the Appellants' case.
4. The Tribunal is not satisfied that the Tribunal at first instance failed to provide proper reasons for its decision. Why the Tribunal decided as it did was explained clearly and logically. The critical issue for determination was who should be YRA's guardian, rather than whether YRA should have a guardian. The Tribunal explained why it found that the Appellants should not be YRA's guardians and why, in the absence of any suitable private person being available to be appointed, and none was suggested to be, the Public Guardian should be appointed as YRA's guardian.
5. Nothing to which the Appellants have referred, or the Appeal Panel has identified for itself, establishes that the Tribunal at first instance identified the wrong issue or asked the wrong question. As submitted by Mr Fogarty, the Tribunal identified the issues requiring determination, the relevant statutory provisions, posed and answered the right questions. The fact that the Appellants do not agree with the answer to the questions does not, without more, demonstrate that the Tribunal reached a decision which was not open to it in relation to those questions. To the extent that the Appellants may assert that the Tribunal at first instance applied a wrong principle of law, as Mr Fogarty's submissions explain, any such challenge is without foundation.
6. To the extent the Appellant may allege a denial of procedural fairness, nothing to which the Appeal Panel has been referred supports such a complaint. As observed earlier, the simple and expedient way of proving any alleged denial of procedural fairness or procedural irregularity before the Tribunal at first instance was by the provision of the transcript of the hearing. In the absence of the transcript, or other circumstantial evidence, and the Appeal Panel has not been referred to any, there is no basis for doubting that the Appellants were afforded procedural fairness before the Tribunal at first instance, and had every reasonable opportunity to advance relevant evidence and make submissions in support of their case. The reasons of the Tribunal at first instance refer extensively to the matters advanced by Ms K. The Appellants do not appear to suggest and, if they do, do not demonstrate that the Tribunal at first instance denied her the opportunity to present any relevant evidence, make any relevant submissions or misconceived what the case on behalf of herself and Mr B was.
7. Although the Appellants contend that the Tribunal should have come to a different decision, they have not identified any failure of the Tribunal at first instance to have regard to mandatory relevant considerations. Mr Fogarty's submissions support the Appeal Panel's conclusion that the Tribunal at first instance did not fail to take into account mandatory relevant considerations. Nor has it been demonstrated that the Tribunal at first instance took into account any irrelevant considerations. To the extent that, inferentially, the Appellants assert that the Tribunal made findings of fact in the absence of evidence supporting such findings, nothing to which the Appeal Panel has been referred establishes error of that kind.
8. To the extent that the Appellants appear to contend that Ms K's views of YRA's needs and her reasons for not agreeing with recommendations of YRA's treating health team, should not have been rejected, nothing to which the Tribunal has been referred establishes error on the part of the Tribunal at first instance. In the absence of reasons for doing so, and none have been identified, the Tribunal was entitled to prefer the expert opinions of YRA's treating health practitioners to the unqualified, and conflicted views of the Ms K (Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21; 85 ALJR 694; 277 ALR 611). The Tribunal amply explained why it did so.
9. The Appellants have not demonstrated that the decision of the Tribunal at first instance was so unreasonable that no reasonable decision-maker would make it. On the contrary, the decision was logically based, and the reasons for it clearly articulated.
10. The Appellants do not establish error on a question of law. Nor, largely for those reasons, do the Appellants establish an entitlement to a grant of leave to appeal on any grounds. At their highest, which has not been achieved, the Appellants' complaints may establish that the Tribunal at first instance could have reached a different decision. That is not a basis for appellate intervention - few evaluative determinations permit only one decision. Doing so would not provide a basis for granting leave to appeal. With no disrespect intended to them, the material relied on by the Appellants does no more than reiterate contentions advanced by them which were considered and rejected by the Tribunal at first instance.

1. As no ground of appeal has been made out, and no basis for a grant of leave has been established, the appeal will be dismissed and leave to appeal will be refused.

(1) Pursuant to s 50(2) of the Civil and Administrative Tribunal Act, the hearing of the appeal is dispensed with.

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.