YNN v Public Guardian

1. YNN and YPG now appeal from decisions made on 30 April 2025. A Notice of Appeal filed 9 June 2025 names YNN and YPG as appellants (the Appellants), though it is signed only by YNN.

1. On 2 July 2025 the appeal was dismissed because the Appellants failed to appear at the hearing as listed to determine the appeal.
2. On 22 August 2025 the Appeal Panel granted the Appellants' application for the appeal to be reinstated: Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), s 55(2).

1. During the appeal hearing it emerged that whilst there was a single Notice of Appeal, the Appellants were asserting that the Tribunal had erred on a question of law in respect of different aspects of the decision made on 30 April 2025. We proceeded on the following basis:

(1) YNN was asserting that the Tribunal fell into error when it renewed the guardianship order and when it appointed the Public Guardian as the guardian. He also asserted that the Tribunal fell into error when it varied the financial management order and committed his affairs to management by the NSWTG.

(2) YPG was asserting error of law only in respect of the decision that she was not a suitable person to be appointed as guardian for YNN and the resultant appointment of the Public Guardian.

1. The Appellants were required to lodge a Notice of Appeal within 28 days from the day on which they were notified of the decision to be appealed or given reasons for that decision, whichever was later: Civil and Administrative Tribunal Rules 2014 (NSW) (the NCAT Rules), r 25(4)(c). The Tribunal's Reasons for Decision (Reasons) were provided to the Appellants on 8 May 2025, and the Notice of Appeal was received on 10 June 2025, five days out of time. The Appellants seek leave for an extension of time, stating "my sister was overseas and she cannot helping me to appeal" (sic).
2. As the Notice of Appeal was lodged after the statutory deadline had passed, the appeals cannot proceed unless the power conferred by s 41 of the NCAT Act to extend the period to lodge an appeal is exercised. That power must be exercised judicially having regard to the "guiding principle" of the NCAT Act that the Tribunal is to facilitate the just, quick and cheap resolution of the real issues in the proceedings: Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 (Jackson) at [18].
3. In Jackson, the Appeal Panel identified, at [22], factors generally relevant to the exercise of the discretion to extend time to lodge a Notice of Appeal. They include: the length of and reason for the delay, whether the appellant has a fairly arguable case, and the extent of any prejudice that might be suffered by the respondents to the appeal if leave to extend time to lodge a Notice of Appeal is granted.
4. The following factors favour the exercise of the discretion to extend the time to appeal:

(1) The length of the delay is relatively short and there would be no prejudice to the other parties to the appeals if the discretion to extend time to appeal were to be exercised.

(2) The Reasons indicate that YNN has a disability, and in the Notice of Appeal he indicates that he needed the assistance of his (previously absent) sister to complete the Notice.

(3) English is not YNN's first language, and an interpreter assisted at the review proceedings and in the appeal hearing. We accept that it is likely that YNN experienced some difficulty completing the Notice of Appeal due in part to language difficulties.

1. Whilst the material before us did not suggest that the Appellants had a strong case, we decided, on balance, to exercise the discretion to extend time to lodge a Notice of Appeal and to provide the Appellants with an opportunity to prosecute the appeal.

1. The decisions to renew and vary a guardianship order, and to vary a financial management order, are "internally appealable decisions": NCAT Act, s 32(4).
2. As parties to the proceedings at which these decisions were made, both Appellants have a right to appeal from the decisions on a question of law or, with the leave of the Appeal Panel, on any other ground: NCAT Act, s 80(2)(b).
3. The grounds of appeal as stated in the Notice of Appeal were unclear.
4. The Appellants were unpresented in the appeal. Therefore, in considering the grounds of appeal on which the Appellants rely, we adopted the "more generous or benevolent approach" endorsed by the Court of Appeal in Kudrynski v Orange City Council [2024] NSWCA 33 at [50]- [51] (Griffiths AJA, Meagher and Kirk JJA agreeing).
5. The Tribunal is required to observe the rules of natural justice, now more commonly referred to as the rules of procedural fairness: NCAT Act, s 38(2). Reflected in s 38(5)(c) of the NCAT Act, those rules require the Tribunal to take such measures as are reasonably practicable to "ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the review proceedings".
6. Based on the Notice of Appeal together with YNN's oral and written submissions, we discerned that the question of law raised by him was a denial of procedural fairness in the review proceedings. YNN asserts, in effect, that:

(1) He was not provided with a reasonable opportunity to be heard in the review proceedings.

(2) The Tribunal failed to consider "the notice provided by YPG regarding what YNN's NDIS Support Coordinator was doing for YNN".

(3) He was not provided with an adequate interpreter service.

Was YNN provided with a reasonable opportunity to be heard in the review proceedings?

1. Pursuant to an order made on 25 August 2025 by the Appeal Panel, the Second Respondent lodged an Agreed Bundle of Documents (the Agreed Bundle). We were not taken to any documents provided by YNN within that bundle.
2. The Agreed Bundle includes reports by health and medical practitioners that were lodged by YNN's NDIS Support Coordinator. These include letters from YNN's general practitioner. The Reasons of the Tribunal ("Reasons") record that YNN referred to these letters in the review proceedings.
3. The Reasons describe YNN's behaviour in the review proceedings as "dramatic and emotional" and state that "he struggled to answer questions in a direct manner": Reasons, [14]. Nevertheless, our reading of the Transcript of the hearing conducted on 30 April 2025 (Tcpt), prepared by Law in Order Pty Ltd and provided in the Agreed Bundle, reveals that YNN expressed his views as to his capacity, and the need for guardianship and financial management orders, and that he gave extensive evidence regarding his financial affairs and his views about his sister (YPG), his relationship with her and whether she should be appointed as the guardian and financial manager.
4. YNN has failed to establish that he was not given a reasonable opportunity to be heard in the review proceedings.

Did the Tribunal fail to consider "the notice provided by YPG regarding what YNN's NDIS Support Coordinator was doing for YNN"?

1. In certain cases, a failure by the Tribunal to have regard to a document filed by a party could result in a denial of procedural fairness to that party (see YHY v YHZ [2024] NSWCATAP 117 at [23]- [24] (YHY)). In YHY, it was not in dispute that a party had filed identified documents in evidence and these documents were not given to the Member conducting a review hearing. The Appeal Panel allowed the appeal, stating, in effect, that there was a realistic possibility of a different result had NCAT met its obligations to provide natural justice or procedural fairness to the party, including by putting before the decision maker the evidence provided by the party.
2. In the current appeal, the document referred to in the Notice of Appeal was not identified by reference to the Agreed Bundle or in any way other than the description in the Notice of Appeal. We were not otherwise provided with a copy of the document and we are unaware of the substance of the content of the document.
3. There was no evidence provided about the filing of the document in connection with the review proceedings.
4. During the appeal proceedings the Appellants made no submissions about the document referred to in the Notice of Appeal.
5. Lacking necessary evidence about the document and its filing, we are unable to determine whether the document was filed in evidence in the review proceedings, and if so, whether it was in evidence before the Tribunal at the review hearing.
6. Having regard to the paucity of evidence about the document and its filing or otherwise, we are unable to decide that YNN was denied procedural fairness as a result of the document not being considered by the Tribunal.

Did the Tribunal fail to provide an adequate interpreter service for YNN?

1. YNN contends that he had trouble understanding the review proceedings because he was "nervous" due to a high sugar count resulting from his diabetic condition, and because the interpreter did not interpret or "explain" everything.
2. The absence of an interpreter, or provision of an inadequate interpreter service for a party who requires an interpreter, may result in a denial of procedural fairness: As the Federal Court stated in SZRMQ v Minister for Immigration and Border Protection (2013) 219 FCR 212; [2013] FCAFC 142 at [5] per Allsop CJ:

"Whether or not inadequate translation or interpretation means that a hearing is not fair will depend ultimately on the particular circumstances of the case."

"[A] claimant must be provided with a standard of interpretation such that he is afforded a meaningful opportunity to communicate his claims, evidence and submissions to a decision-maker and a meaningful opportunity to respond to that which a decision-maker may wish to say".

1. In the appeal hearing, YNN testified under oath that he told the Senior Member conducting the review proceedings that he was "not understanding" anything. YPG indicated in the appeal hearing that she was unable to confirm or refute that claim by YNN. She added a statement to the effect of, YNN "was talking, he never stopped, he was speaking very roughly with a high voice and using bad words and did not give a chance for others to talk".
2. We have considered the transcript of the review proceedings included in the Agreed Bundle. During the review proceedings:

(1) Interpretation was provided by an interpreter in the Arabic language provided by Multicultural NSW, who affirmed that she would conduct the interpretation honestly and sincerely.

(2) The Senior Member explained the role of the interpreter to YNN, including that the role of the interpreter was to "interpret, not to clarify" (Tcpt, p 8(6)) and if he had a question he should direct it to the Senior Member, not to the interpreter (Tcpt, p 8(1)).

(3) The Senior member advised participants to use short sentences to allow for the interpreter to interpret and that "sometimes people get excited and want to tell a long story, but it's very hard for the interpreter to interpret": Tcpt, p 8(19-20).

(4) Not every word or phrase was interpreted during the review proceedings.

(5) YNN sometimes responded to questions asked in the English language without waiting for the interpreter and at times responded using the English language. On a number of occasions, the Senior Member advised him to wait for the interpreter.

(6) On at least one occasion the interpreter complained that it was "very hard" to interpret because YNN was "just cutting me": Tcpt, p 18(18).

1. The Reasons describe YNN as being "volatile" and "speaking over the interpreter" and comment that at one point the Senior Member adjourned the proceedings to allow YNN to regain his composure: Reasons, [14]. This description is consistent with the comments of YPG at the appeal hearing when describing YNN's oral participation in the review proceedings (see [35] above).
2. From our consideration of the transcript, it seems to us that the review proceedings were conducted by the Tribunal in the context of YNN's volatile and emotional participation during which the Senior Member intervened to facilitate an adequate interpreter service. YNN has not demonstrated that the Tribunal denied him procedural fairness by failing to provide him with an adequate interpreter service.

1. We discern the question of law asserted by YPG to be that she was denied procedural fairness in the review proceedings. In support of this claim she asserts that she was not given a reasonable opportunity to be heard in respect of the Tribunal's decision that she did not meet the requirements to be appointed as YNN's guardian, and the resultant appointment of the Public Guardian as guardian.
2. YPG did not take us to any material she provided to the Tribunal which supported her claim that she was suitable person to be appointed as YNN's guardian. She did however take us to documents filed in the review proceedings, which indicate that she had raised concerns about the provision of services to YNN. She spoke to those concerns during the review proceedings.
3. During the review proceedings:

(1) YPG was asked, and responded, to questions about whether she should be the guardian: Tcpt, p 33(38-44), p 49(20-44), p 50(5-35), p 51(6-16).

(2) YPG gave detailed information alleging that YNN had been inappropriately taken from a support provider to a different provider who was encouraging him to gamble (Tcpt, p 19(7-24)) and that new support providers were misleading YNN about her (Tcpt, p 49(29-39)). YPG proposed that she be appointed as the guardian because she needs to monitor such situations: Tcpt, p 49(29-39).

(3) YNN said that he opposed his sister being appointed as his guardian: Tcpt, p 42(1-10), p 52(1-3).

(4) YPG said that YNN becomes agitated when thinking about her, but she expressed the view that this is because of discord due to her being the financial manager, not because she was his guardian: Tcpt, p 50(16-46), p 51(1-16).

1. YPG provided evidence to the Tribunal regarding her suitability for appointment as guardian. On this appeal, she has failed to establish that she was not given a reasonable opportunity to be heard on this matter in the review proceedings.

1. The Appellants indicate in the Notice of Appeal that they believe the Tribunal should have given more weight to:

the evidence supplied by my sister, she did not ask to cancle (sic) her guardian (sic), she provided all evidence in her application for public financial managements (sic).

1. We understand the Appellants to assert that the Tribunal mischaracterised or somehow misapplied evidence provided by YPG (about who should be appointed as the financial manager) and inappropriately gave that evidence weight when considering who should be appointed as the guardian.
2. We note above (at [10]) that whilst there was a single Notice of Appeal, we distinguished two separate appeals asserting denial of procedural fairness. We have dealt separately with the appeals of YNN and YPG asserting denial of procedural fairness.
3. Having regard to the issue raised in relation to the weight of evidence (above [43]), we discern that the Appellants are at one in seeking leave to appeal on the basis that inappropriate weight was given to the evidence in determining who should be appointed as guardian.
4. The Reasons record that YPG denied that acting in the role of guardian caused conflict with YNN: Reasons, [25]. Noting that this did not reflect the views expressed in a report by YNN's psychiatrist or by YNN, the Tribunal gave weight to the alternative view on this issue expressed by YNN's NDIS Support Coordinator and a care provider.
5. The evidence of the NDIS Support Coordinator was corroborated by the report of the YNN's psychiatrist, YNN's own comments and the evidence of the care worker.
6. The Reasons indicate that the Tribunal took into account that YPG proposed that she should be the guardian, even though she had sought to be replaced as the financial manager. The evidence considered in respect of who should be the guardian does not place weight on YPG's evidence as to who should be the financial manager.
7. The premise on which the Appellants seek leave to appeal is not established. Therefore, it is not necessary to decide whether a sound basis for granting leave has been established: Collins v Urban [2014] NSWCATAP 17 at [84]. In any event the proposed appeal raises no issue of general importance, matters of principle, or any of the other factors identified by the Appeal Panel in Collins v Urban which might warrant the exercise of the discretion to grant leave to appeal.
8. Leave to appeal is refused.

(1) The time for filing the Notice of Appeal is extended to 10 June 2025.

(2) The appeal is dismissed.

(3) Leave to appeal refused.

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.