YNR v YPK

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; [1990] HCA 33

BHP Billiton Ltd v Dunning [2015] NSWCA 55

Collins v Urban [2014] NSWCATAP 17

C v W [2015] NSWSC 1774

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

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

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

Raissis v Anaz [2019] NSWCATAP 25

Re Minister for Immigration and Multicultural Affairs & Anor; Ex parte Miah (2001) 206 CLR 57

SAB v SEM & Ors [2013] NSWSC 253

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

Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262; [2000] NSWCA 29

Sheehy v NSW Police Force; Rapisarda v NSW Police Force; Housego v NSW Police Force [2018] NSWCATAP 307

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

ZSJ v ZSK [2021] NSWCATAP 144

ZXH v ZXI [2022] NSWCATAP 269

Pursuant to s 65 of the Civil and Administrative Tribunal Act 2013 (NSW), a person must not without the consent of the Tribunal publish or broadcast the name of any person who appears as a witness in these proceedings, to whom these proceedings relate, or is mentioned or otherwise involved in the proceedings. The name of a person includes a reference to any information, picture or other material that identifies or is likely to lead to the identification of the person.

1. This appeal is about 61-year-old Peter (not his real name) who lives in supported accommodation in regional NSW. Peter has been diagnosed with several conditions, including an intellectual disability. He is a participant in the National Disability Insurance Scheme (NDIS).
2. In October 2016, Peter appointed his brothers, YRC and YPK (the Brothers), as his enduring guardians and attorneys, authorised to act jointly.
3. In 2022, Peter's sister (the appellant), applied to the Guardianship Division of the NSW Civil and Administrative Tribunal (NCAT) requesting guardianship and financial management orders to be made in respect of Peter. In December 2022, the Tribunal heard and dismissed those applications.
4. In June 2024, the appellant made a further application to NCAT, on this occasion seeking review of the Brothers' appointment as Peter's enduring guardians and attorneys. She contended that Peter lacked capacity to make those appointments and that the Brothers were failing in their obligation to make decisions on behalf of Peter that promoted his welfare and interests. The appellant requested the Tribunal to revoke the appointment of the Brothers and to make guardianship and financial orders in respect of Peter. The appellant proposed that she be appointed as Peter's guardian and manager or, in the alternative, the NSW Public Guardian and the NSW Trustee and Guardian. The Tribunal declined to make those orders and instead decided:

(1) to confirm the appointment of the Brothers as Peter's enduring guardians; and

(2) to not review the making of, or the operation and effect of, the instrument appointing the Brothers as Peter's attorneys.

1. The appellant appeals from each decision. Among other things she contends that by failing to admit the bundle of documents produced to NCAT by Peter's accommodation and care provider in answer to a summons, she was denied procedural fairness. In addition, she contends that the Tribunal made several factual findings without evidence.
2. We concluded that the Tribunal did not make legal errors of the types identified by the appellant. In addition, we decided not to exercise the discretion to give the appellant leave to appeal and to deal with the appeal by way of a new hearing.
3. In these reasons, we have decided not to use the real names of the parties because of the sensitive nature of the matters discussed. We decided to refer to his care and accommodation provider as "the Provider" so as not to possibly identify Peter. At Annexure A to these reasons, we set out the pseudonyms assigned to the parties for this appeal, and the corresponding names used in these reasons.

1. The decisions to confirm the appointment of the Brothers as Peter's enduring guardians and not to review the making and operation and effect of the power of attorney made by Peter are "internally appealable decisions": Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), s 32(4). As a party to the proceedings in which those decisions were made (the review proceedings), the appellant has a right to appeal from each decision on a question of law or, with the leave of the Appeal Panel, on any other ground: NCAT Act, s 80(2)(b).
2. In the Notice of Appeal, the appellant relied on the following grounds of appeal which are reproduced below without alteration:

"The appeal is based on factual and procedural errors by the Tribunal, including failure to consider key evidence and reliance on unverified claims. The following points summarise the core issues and the attach document "GROUNDS OF APPEAL for 2022/..." gives further information.

1. [Provider] Bundle Overlooked (Finding 8) The Tribunal did not consider critical evidence showing [Peter] Is not receiving appropriate care. Key concerns include a) Unsafe and unsuitable living conditions. b) Poorly managed diabetes and missed medical appointments. c) Restrictive visitation policies misrepresented at the hearing. d) Instances of passive neglect by staff.

2. Legal Document Storage and Capacity Assessment (Finding 22) The Tribunal wrongly accepted that documents were lost in floods without verifying with the law firm involved. Evidence now shows a) Most records were securely stored.

3. Misrepresentation of [Peter's] Wellbeing (Finding 42) The finding that [Peter] is "flourishing" is contradicted by: a) Medical assessments documenting physical and functional decline. b) Internal [Provider] communications showing unstable health and urgent management issues.

4. Restrictions on Family Contact (Finding 46) Contrary to the Tribunal's finding, decisions about [Peter's] contact with family are being made by his guardian, not [Peter] himself. Evidence shows: Access decisions are unilaterally imposed and enforced by staff.

5. Incorrect Motives Attributed (Finding 47) The Tribunal wrongly suggested my wish for more time with [Peter] was self-serving. In fact: a) [Peter] has initiated contact for events important to him. b) I have consistently supported his wellbeing and interests.

6. Lack of medical records (Finding 50) Because [Peter] was not properly assessed by medical staff, no official record of the event exists, which explains the Tribunal's inability to find supporting evidence-but does not mean the event did not occur. Video evidence of the event is included in this submission."

1. The appellant 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]; S_chwartz Family Co Pty Ltd v Capitol Carpets Pty Ltd_ [2017] NSWCA 223 at [13].
2. Without disrespect, the grounds of appeal are deficient in several ways. None states a question of law. In addition, many of the submissions made by the appellant in support of those grounds simply reagitate arguments made in the proceedings before the Tribunal. As explained in NCAT Guideline, Internal Appeals, November 2023, at [4]: "[g]enerally, an appeal is not an opportunity to have a 'second go' at a hearing."
3. In the appeal, the appellant was represented by her cousin (the Cousin) who was not legally trained. Therefore, in considering the grounds of appeal on which the appellant relies, we adopted 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]. Based on the notice of appeal together with the appellant's oral and written submissions, the following questions of law can be discerned:

(1) Whether by failing to consider the bundle of documents produced to NCAT by the Provider, the Tribunal failed to afford the appellant procedural fairness.

(2) Whether by s 38(6) of the NCAT Act, the Tribunal was obliged and failed to test the claim made by the solicitor who prepared the instruments appointing the Brothers as Peter's attorneys and enduring guardians (respectively, "the EPoA", "the EGA", together "the enduring instruments") that his firm's file relating to those instruments (the client file) had been destroyed in the 2022 Lismore floods.

(3) Whether the findings made by the Tribunal that:

(a) the client's file had been destroyed in the Lismore floods;

(b) Peter is "flourishing" in the supported independent living (SIL) where he currently resides; and

(c) that the appellant's wish to spend more time with Peter is self-serving

1. In addition, the appellant requests the Appeal Panel to grant leave to appeal, and to exercise the discretion to deal with the appeal by way of a new hearing.
2. In the appeal, the appellant said she no longer relied on Ground 6: lack of medical records.

Whether by failing to consider the bundle of documents produced to the Tribunal by the Provider, the Tribunal denied the appellant procedural fairness: Ground 1

1. The appellant contends that she was denied procedural fairness because the Tribunal failed to consider all of the documents contained in the Provider bundle. She asserts that those documents were given to the Tribunal 12 days before the hearing and the Tribunal had ample time to consider them. In these reasons we use the term "the Provider bundle" to refer to the 350 pages of documents produced to NCAT by Peter's accommodation and service provider, in answer to a summons issued at the appellant's request.
2. The appellant contends that the Provider bundle contained material which supported her claim that Peter was living in unsafe conditions, his diet was inappropriate, and his health needs were not being met. She argues that that material was central to her primary submission that it was not in Peter's interests that the Brothers continue to act as his enduring guardians and attorneys.
3. The appellant concedes that in the hearing on 25 February 2025 (the review hearing) to determine her applications seeking review of Peter's enduring appointments, her solicitor, Ms P, proposed to the Tribunal that the hearing proceed on the basis that the Tribunal consider only 10 pages of documents from the Provider bundle. She claims that in doing so, Ms P acted contrary to her instructions to seek an adjournment to enable the Tribunal to review all the documents contained in that bundle.
4. The Brothers contend that it is not now open to the appellant to challenge the Tribunal's decision to consider only 10 pages from the Provider bundle in circumstances where her legal representative, a partner in a major law firm and an accredited wills and estates specialist, had suggested to the Tribunal that it adopt that approach to avoid the hearing being adjourned. In addition, they point out that there is no evidence to support the appellant's claim that Ms P acted contrary to instructions, which they assert would amount to professional misconduct. Further, they point out that the appellant was present throughout the review hearing, including when Ms P proposed that the Tribunal consider only 10 pages from the Provider bundle. At no time did the appellant inform the Tribunal that Ms P was acting contrary to instructions.
5. The appellant accepts that she was present throughout the review hearing and did not raise any concerns when her solicitor proposed that the Tribunal consider only 10 pages of the Provider bundle. She said she did not tell the Tribunal that Ms P was acting contrary to her instructions because it was her understanding that she was not able to do so.

Procedural background to the decision to admit 10 pages from the Provider bundle

1. On 28 November 2024, the Tribunal gave the appellant leave to be legally represented by Ms P and made directions requiring her to file (give to the Tribunal) and serve (give to the other parties) the material she intended to rely upon in the proceedings by 13 December 2024, and any material in reply by 31 January 2025.
2. On 2 February 2025, the appellant requested the NCAT to issue a summons to the Provider to produce its records relating to Peter. NCAT issued that summons the following day. On 12 February 2025, in answer to that summons, the Provider produced to NCAT the Provider bundle. The following day the Registrar made orders giving all parties the right to access, view and copy that bundle.
3. On 24 February 2025, the day before the hearing, the appellant served the Provider bundle on all parties and attempted to file that bundle by email. Shortly after receipt of that email, NCAT advised it was unable to access the documents through the Dropbox link contained in that email. Later that day Ms P re-sent the documents in a different format.
4. At the commencement of the review hearing, the Tribunal announced that it had not had the opportunity to review the Provider bundle and if it were to do so, the hearing may need to be adjourned. Ms P proposed that the hearing continue on the basis that the Tribunal consider only those pages from the bundle that the appellant had referred to in her statement dated 24 February 2025. The Brothers and the separate representative appointed for Peter, solicitor, Ms L, endorsed that proposal. (See transcript of proceedings, 25 February 2025, p 12(36) to p15(10)). The Tribunal adjourned the hearing for 15 minutes to review the 10 pages of documents. The hearing recommenced.

1. The Tribunal was obliged to afford all parties, including the appellant, procedural fairness: NCAT Act, s 38(2). Among other things, that obligation required the Tribunal to take such measures as are reasonably practicable to ensure that the parties to the review proceedings had a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings: NCAT Act, s 38(5)(c).
2. In Kioa v West (1985) 159 CLR 550; [1985] HCA 81 (Kioa) Brennan J (at 612, 626) described the requirement to afford procedural fairness as being "chameleon-like", infinitely variable" and "determined in the light of the particular circumstances" of the case. Those circumstances include: the nature of the inquiry, the rules under which the relevant tribunal or decision-maker is acting, and the subject matter that is being dealt with: Re Minister for Immigration and Multicultural Affairs & Anor; Ex parte Miah (2001) 206 CLR 57 at 94, 98; Kioa v West [1985] HCA 81; (1985) 159 CLR 550 at 584, 585 per Mason J and 609, 610 per Brennan J; Antonio Di Liristi v NSW Public Trustee and Anor [2021] NSWSC 1347 at [85].
3. The NCAT Act goes some way to identifying, but does not set, the outer limits of the Tribunal's obligation to afford procedural fairness. Depending on the particular circumstances, that obligation may require the Tribunal do more than simply discharge the specific obligations prescribed by the NCAT Act, especially where, as here, the Tribunal is exercising a protective jurisdiction.
4. The appellant's claim that she instructed Ms P to seek an adjournment to enable the Tribunal to consider all of the documents contained in the Provider bundle is unsupported. There is no corroborating evidence and nor does the appellant claim that she complained to Ms P herself, or to any person, that Ms P had acted contrary to instructions. As pointed out by the Brothers, Ms P was required to follow the appellant's "lawful, proper and competent instructions": Legal Profession Uniform Law Australian Solicitors' Conduct Rules 2015, r 8. The available material is insufficient to establish the serious allegation that Ms P acted contrary to the appellant's instructions.
5. But, in any event, had the Tribunal, over the appellant's objection, declined to admit into the proceedings the entirety of the Provider bundle, for the following reasons it would not constitute a failure to afford the appellant procedural fairness:

(1) The Tribunal is not obliged, as the appellant appears to contend, to consider all material filed by a party in proceedings. In deciding whether to admit material into proceedings, the Tribunal is entitled to consider, among other things, whether that material was filed in conformity with any directions made by the Tribunal, the proximity of the date of filing to the date of the hearing, any explanation proffered for filing documents late or out-of-time, and whether the other parties to proceedings had a reasonable opportunity to review that material.

(2) Irrespective of when material is filed, the Tribunal is not obliged to admit material that is not relevant to the proceedings. While the Tribunal has power to determine its own procedure (NCAT Act, s 38(1)), and is not bound by the rules of evidence (NCAT Act, s 38(2)), this procedural flexibility does not absolve the Tribunal from the obligation to make findings of fact based upon material which is logically probative: Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93 at [97].

(3) A cursory examination of the Provider bundle reveals that it contains many documents which have no apparent relevance to the factual issues raised by the Applications. Notably, despite having access to that bundle when she prepared her statement in reply, the only documents from that bundle which the appellant referred to in that statement, were the 10 documents the Tribunal admitted into the proceedings.

(4) The appellant is mistaken that she gave the Provider bundle to the Tribunal on 12 February 2025. That was the day the Provider produced that material to the Tribunal in answer to a summons issued at the appellant's request. Documents produced under summons do not form part of the material before the Tribunal unless and until they are given to the Tribunal by a party to the proceedings: see NCAT Procedural Direction 2, 5 March 2025 at [43].

That rule is reflected in the notation to the orders made by the Registrar on 13 February 2025 granting the parties access to the Provider bundle:

[I]f a party wishes to rely on any part of those documents, they must give those documents to the Tribunal and the other parties before the hearing.

(5) The appellant has not offered an explanation for not filing the Provider bundle until the eve of the hearing in circumstances where she had access to that material from 13 February 2025 and had been directed to file and to serve any material she intended to rely upon in support of the Applications by 13 December 2024 and any material in reply by 31 January 2025.

(6) Finally, the obligation imposed by s 38(5)(c) of the NCAT Act required the Tribunal to ensure that the appellant had a reasonable, not every, opportunity to be heard or otherwise have her submissions considered in the proceedings.

1. The appellant was given a reasonable opportunity to give to the Tribunal and the other parties the material she considered relevant to the Application but failed to avail herself of that opportunity. We reject the contention that by failing to consider all of the documents in the Provider bundle, the appellant was denied procedural fairness.
2. This ground of appeal must fail.

Whether the Tribunal was obliged by s 38(6) of the NCAT Act to test the claim made by Mr L that the client file had been destroyed in the Lismore floods: Ground 2

1. The appellant contends that the Tribunal was obliged to test the claim made by Mr L, the solicitor who prepared the enduring instruments made in 2016, that he was unable to locate the client file. That claim was contained in an affidavit dated 8 January 2025, in which Mr L affirmed that he was unable to locate the file containing the enduring instruments "due to its likelihood that it had been destroyed in the 2022 floods".
2. The Brothers point out that if, as the appellant now contends, she considered Mr L's failure to produce the client file to the Tribunal to be a critical issue, it was open to her to request Mr L to attend the hearing and be available for cross-examination. She failed to do so.

1. The Tribunal considered Mr L's claim that he could not locate the client file in the context of addressing the appellant's claim that, in 2016, Peter lacked capacity to appoint the Brothers as his attorneys: at [18]-[24].
2. At [19], the Tribunal said that the certificate issued by Mr L under s 19 of the Power of Attorney Act 2003 (NSW) "is considered prima facie evidence that Peter had the requisite capacity" to appoint the Brothers as his attorneys. In that certificate, Mr L stated that he explained the effect of the EPoA to Peter before it was signed, and he appeared to understand its effect.
3. At [20], the Tribunal recorded that the appellant "has not produced any contemporaneous medical evidence in support of her claim that Peter lacked capacity as of 31 October 2016".
4. At [21], the Tribunal referred to the appellant's suggestion that a Jones v Dunkel inference should be drawn from the Brothers' failure to produce the client file to the Tribunal. At [22], the Tribunal noted that in the hearing, the Separate Representative, Ms L, volunteered that she knew Mr L on a professional basis and was aware that his office was destroyed and files lost "as a consequence of the extensive flooding that has occurred in Lismore in recent years". Citing a media report about those floods, the Tribunal said it "takes judicial notice of the fact that these issues were widespread in the Lismore legal fraternity" and accepted that explanation.

1. While not put in these terms, in effect the appellant contends that by failing to test Mr L's claim that he could not locate the client file, the Tribunal failed to comply with its obligation "to ensure, as far as practicable, that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue in any proceedings": NCAT Act, s 38(6)(a).
2. The NCAT Act gives the Tribunal broad powers to inquire and permits the Tribunal to "inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice": NCAT Act, s 38(2). In addition, the Tribunal can call any witness of its own motion; examine any witness on oath or affirmation; examine or cross-examine any witness to such extent as the Tribunal thinks proper in order to elicit information relevant to the exercise of the functions of the Tribunal in any proceedings; and compel any witness to answer questions which the Tribunal considers to be relevant in any proceedings: NCAT Act, s 46(1). Further, the Tribunal can direct the Registrar to issue a summons requiring a person to attend and give evidence, or produce documents or other things: NCAT Act, s 48.
3. In considering this ground, we put to one side an issue not raised by any party that is, whether the client file is subject to "client legal privilege" (Evidence Act 1900 (NSW) Ch 3, Pt 3.10, Div 1) and therefore a "protected document" within the meaning of s 67 of the NCAT Act.
4. Undoubtedly, the Tribunal had power to question Mr L about his claim that he was unable to locate the client file, and to summon Mr L to attend the review hearing and to test that claim. However, the issue raised by this ground is whether, by failing to exercise those powers, the Tribunal failed to comply with the obligation imposed by s 38(6)(a) of the NCAT Act.
5. In Raissis v Anaz [2019] NSWCATAP 25, a differently constituted Appeal Panel considered the nature and scope of the obligation imposed by s 38(6)(a) of the NCAT Act. At [24]-[26], the Appeal Panel said that that provision should not be construed literally but rather as giving the Tribunal a power which is permissive in nature. We agree with and adopt that analysis. The amendment to s 38(6)(a), made after Raissis v Anaz, to include the words "as far as practicable" (Civil and Administrative Tribunal Amendment Act 2023, Sch 1, cl 3) does not change that interpretation.
6. There will be circumstances where the failure of the Tribunal to exercise its powers to inquire may constitute a failure to comply with the obligation imposed by s 38(6)(a) of the NCAT Act. However, this is not such a case. In reaching that conclusion we consider it relevant that the appellant was legally represented in the review proceedings; it was open to the appellant to take steps to require Mr L to give evidence; she did not request the Tribunal to exercise its powers to require Mr L to attend the hearing or to be available for questioning; and it was, at best, conjecture that Mr L had given untruthful evidence about the availability of the client file.
7. This ground of appeal is rejected.

No evidence grounds: Grounds 2 (in part) 3, 4, 5

1. The appellant contends that there was no evidence to support each of the following findings made by the Tribunal:

(1) that the client file was destroyed in floods;

(2) that Peter is "flourishing" in the supported independent living (SIL) where he currently resides;

(3) that the appellant 's wish to spend more time with Peter was self-serving; and,

(4) that decisions about the appellant's access to Peter are made by Peter.

1. A tribunal which makes a finding of fact or draws an inference where there is a complete absence of evidence makes an error of law: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; [1990] HCA 33 (Bond) at 355-356 (Mason CJ); Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390; [2010] HCA 32 at [91] (Hayne, Heydon, Crennan and Kiefel JJ).
2. In Bond, Mason CJ noted at 356 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". Mason CJ continued:

"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 made by Mason CJ, 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].

Impugned finding 1: the client file was destroyed in floods

1. The Tribunal said it based its finding that the client file had been destroyed in the Lismore floods on:

(1) the direct evidence given by Mr L in his affidavit, affirmed 8 January2025;

(2) the statement made by the Separate Representative that she knew Mr L on a professional basis and was aware that his "office was destroyed and files lost as a consequence of the extensive flooding that has occurred in Lismore in recent years": at [22];

(3) its conclusion, based on media that it was a matter of common knowledge (Evidence Act, s 144) that in 2022 the premises of some legal practices in the Lismore area had been destroyed by floods.

1. There was a rational connection between the above material and the impugned finding. The contention that there was no probative material to support that finding is rejected.

Impugned finding 2: Peter is "flourishing" in supported independent living where he currently resides

1. The appellant contends that there was no material to support the finding at [42] that Peter is "flourishing" in the SIL where he currently resides. She claims that the preponderance of material before the Tribunal supported her claim that Peter was not flourishing. That material includes:

(1) a risk assessment report prepared by the Provider, dated 18 February 2024, which records that Peter is required to "remove and replace his own needle caps during medication administration [insulin given for diabetes] ... and place his own sharps in the container provided". The appellant asserts that this "is against safety procedures for sharp disposal ... a syringe should never be recapped";

(2) a risk assessment report prepared by the Provider, dated 17 December 2024, which records that because of a mechanical fault, the air conditioning in Peter's bedroom could not be used overnight;

(3) a report dated 9 April 2024 in which, after referring to Peter's current medication regime, psychiatrist Dr McD, recorded that Peter's family and carers report that he "is flattened out at the moment, not himself in terms of baseline mood ... he is over sedated in the day";

(4) the clinical notes prepared by psychiatrist, Dr G which record that in October 2023; Peter was recorded to hit his TV (x 11); punch walls (x 11); swear (x 11);

(5) a record made by a member of the Provider's staff, which noted that Peter's dentist reported to the Provider that Peter had a cavity, 12 months later no action had been taken, and the dentist recorded the tooth "looks really bad";

(6) a report prepared by Optimum Allied Health, 19 August 2024, which stated that Peter's overall function had deteriorated since 2023.

1. The Brothers contend that the origin of the comment that Peter is "flourishing" is the statement made by the Separate Representative. They concede that the assessment that Peter is "flourishing" is probably something of an overstatement given Peter's multiple health challenges. Nonetheless, they contend that there was a wealth of material before the Tribunal that, despite those challenges, Peter was doing well, receiving appropriate care and enjoying where he is living.
2. In addition, the Brothers point out, as recorded by the Tribunal at [52], that the appellant has made several complaints to the NDIS Quality and Safeguard Commission about the quality of care provided to Peter by the Provider, none of which have been upheld.

1. The impugned finding was made in the context of the Tribunal's consideration of the appellant's application, seeking review of the Brothers' appointment as Peter's enduring guardians. In that application, the appellant contended that the Brothers were acting contrary to Peter's best interests: at [41]. Central to that contention was the appellant's claim that the level of care and support received by Peter was deficient, and his interests would be better served by living with her, rather than continuing to live in supported independent living.
2. The impugned finding is contained in the following passage from the Reasons:

42 A key aspect of [the appellant's] complaint is her disagreement that [Peter] should reside in supported accommodation. Her alternative proposal is that [Peter] should instead live with her. [Peter's] views regarding this issue were clear and unambiguous. [Peter] enjoys living in his current SIL property and does not wish to live with the appellant. The objective evidence before the Tribunal is that [Peter] is flourishing in this environment. He is well supported and it is intended that [Peter] will be able to age in place in this environment.

(Emphasis added)

1. Since January 2024, Peter has been living in his current SIL with care support provided by the Providers. He moved there following a decision by the Brothers that he be closer to his mother, with whom he is reported to be close.
2. As the Brothers point out, there was material before the Tribunal which supported their claim that Peter was enjoying living at the SIL, that his health needs were being met, and that he was receiving adequate care and support. This included:

(1) A detailed statement dated 29 January 2025 prepared by YRC (Brother 1), which described Peter's health care arrangements, the training provided to the Provider's staff to support the management of Peter's diabetes and mental health issues, and an outline of Peter's weekly schedule which included spending two afternoons each week with his mother, YSB;

(2) A statement prepared by YPK (Brother 2);

(3) A statement prepared by Peter's mother in which she supported the Brothers' claim that Peter enjoyed where he was living and was well-cared for;

(4) A report and letter prepared by Peter's behaviour support practitioner; and,

(5) A letter provided by the Provider's disability services manager.

1. The Tribunal addressed some of the specific criticisms made by the appellant about the standard of care provided to Peter, including that in 2024 he had been heavily sedated; that the Brothers facilitated his premature discharge from hospital after a suspected heart attack; and that staff were failing to follow the Provider's own sharps handling protocol: at [48].
2. With respect to the first of these criticisms, the Tribunal noted that all parties agreed Peter "had previously been overmedicated" during a trial of new medication and that, following steps taken by the Brothers, his medication was reviewed and reduced: at [49].
3. With respect to the second criticism, that the Brothers facilitated Peter's premature discharge from hospital, the Tribunal noted that the records of the hospital produced in the proceedings did not support the appellant's belief that Peter had suffered a heart attack. In the appeal, the appellant conceded that she had been mistaken.
4. As to the third criticism, the Tribunal noted that the appellant had complained to the NDIS Quality and Safeguard Commission that staff were failing to follow the Provider's sharps handling protocol, but no action was taken.
5. The reasons given by the Tribunal "are not to be scrutinised in an over-zealous fashion": Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6. Adopting that approach, we are unable to agree with the appellant's submission that the use of the word "flourishing" indicates that the Tribunal found all aspects of Peter's care and accommodation to be faultless and that he was in excellent health. Rather, the meaning conveyed or intended to be conveyed appears to be that Peter was being well-cared for and enjoyed where he was living. As we outlined above, there was evidence to support that finding. While some aspects of the care provided to Peter was wanting, such as the apparent neglect of his dental health throughout 2024, it does not follow that there was no evidence to support the "Peter is flourishing" finding or that that finding was not reasonably open on the available evidence.

Impugned finding 3: The appellant's wish to spend more time with Peter was self-serving

1. This finding was made in the context of the Tribunal's consideration of the appellant's complaint that the Brothers were restricting her access to Peter. The Tribunal said:

46 [The appellant] raised concerns that her access to [Peter] is being improperly restricted by his guardians without authority to do so (noting that the EG does not include an access function). [YRC] disputes these allegations. [YRC] rightly identified that he has no authority to make decisions regarding Peter's access to others, and whilst he may be the one who communicates these decisions to [the appellant], the decisions are ultimately made by Peter.

47 [Peter] is reported to have a busy social calendar. Notwithstanding this, [Peter] has consistently spent time with the appellant on a weekly basis for at least the past two years, with additional contact scheduled on special occasions (such as [Peter's] desire to watch the State of Origin with [the appellant]). This contact is scheduled in accordance with [Peter's] views, and although the appellant would like the opportunity to spend more time with her brother, increasing contact would appear to be in [the appellant's] interests rather than [Peter's] interests. [Peter] is content with the current arrangements.

(Emphasis added)

1. The appellant contends that there was no evidence to support the Tribunal's characterisation of her motives for wishing to have a greater level of involvement in Peter's life. She claims that her actions in seeking to spend more time with Peter reflects Peter's "known interests and preferences, particularly his passion for sport". She claims that spending more time with her would allow him to watch sport uninterrupted, "something he values deeply".

1. There was no direct evidence that the appellant was motivated by self-interest in seeking to spend more time with Peter. The question raised is whether there was some evidence to support that inference being drawn from the material available to the Tribunal.
2. Inferences are reasonable deductions from proven facts. In Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262; [2000] NSWCA 29 at [84]- [88], the Court of Appeal explained that inferences are to be distinguished from mere conjecture, although the dividing line will often be difficult to identify.
3. The Tribunal found that Peter had a busy schedule of weekly activities; that he determined the frequency of his visits with the appellant; that Peter has not expressed to either Brother 1 or his mother that he wished to meet with the appellant more frequently than his then scheduled weekly meetings: Reasons at [47]. There was evidence to support each of those findings (see for example, YRC's affidavit, 29 January 2025).
4. Viewed alone, none of those facts would support the inference being drawn that the appellant was motivated by self-interest in seeking to spend more time with Peter. However, in combination, and taken together with the whole of the material, in our view that inference was reasonably available to be drawn by the Tribunal.
5. It may be, as the appellant contends, that the Tribunal was mistaken and her motive in wishing to spend more time with Peter was entirely altruistic. However, as Mason CJ explained in Bond at 356 even if an inference is drawn as a result of illogical reasoning, so long it is reasonably open it would not amount to an error of law.

Impugned finding 4: decisions about the appellant's access to Peter are made by Peter

1. The appellant contends that there was no evidence to support the finding that decisions about her access to, and visits with, Peter were "ultimately made by Peter".
2. The Brothers disagree. They concede that, initially, when their appointments as Peter's enduring guardian came into effect, they failed to appreciate or fully appreciate that the scope of their authority as Peter's enduring guardian did not extend to making decisions about Peter's access to other people. They claim that since the 2022 NCAT proceedings they have better a better appreciation of the limitations of their role.

1. The impugned finding is contained in the following passage of the Reasons:

46 [The appellant] raised concerns that her access to [Peter] is being improperly restricted by his guardians without authority to do so (noting that the EG does not include an access function). [YRC] disputes these allegations. [YRC] rightly identified that he has no authority to make decisions regarding [Peter's] access to others, and whilst he may be the one who communicates these decisions to [the appellant], the decisions are ultimately made by [Peter].

(Emphasis added)

1. The material before the Tribunal revealed that there was a long history of disagreement between the appellant and the Brothers about the appellant's access to Peter. Matters came to a head in early 2024 with an exchange of correspondence between the Brothers and the appellant's solicitor. Among other things, the Brothers alleged that on returning to his SIL after visits with the appellant, Peter's blood sugar level was elevated probably because the appellant failed to appropriately manage Peter's diet during those visits. The appellant denied that allegation and alleged that the Brothers were being vindictive toward her and restricting her right to have contact with Peter.
2. There was evidence that in early 2024 decisions about the appellant's visits with Peter were being made largely by the Brothers, in consultation with their mother. See, for example, the letter from Brother 1 to the appellant's solicitor dated 5 January 2024. Likewise, there was evidence that by 2025, decisions about those visits were being made by Peter in consultation with Brother 1 and his mother. See, for example, Brother 1's affidavit, affirmed 29 January 2025.

1. There was both material before the Tribunal to support each impugned finding and a rational connection between the two. In truth, this ground is simply an expression of the appellant's disagreement with those findings. This ground is rejected.

1. The appellant requests that the appeal be dealt with by way of a new hearing (NCAT Act, s 80(3)(a)) on the grounds that there exists the following "new material":

(1) The Provider bundle;

(2) The Cousin's account of a conversation with a receptionist from Mr L's law firm;

(3) The alleged actions of the Brothers to limit her contact with Peter;

(4) The records that Peter's diabetes continues to be poorly managed.

1. The Brothers oppose the appeal being dealt with by way of a new hearing. They contend that the new material on which the appellant seeks to rely is neither "new", nor, had it been admitted in the review proceedings, is it likely to have resulted in a different decision being made by the Tribunal.

Power to deal with appeal by way of a new hearing

1. The Appeal Panel may decide to deal with an internal appeal by way of a new hearing if it considers that the grounds for the appeal warrant a new hearing: NCAT Act, s 80(3)(a). If the Appeal Panel decides to deal with the appeal by way of a new hearing, it may permit such fresh evidence, or evidence in addition to or in substitution for the evidence received by the Tribunal at first instance, to be given in the new hearing as it considers appropriate in the circumstances: NCAT Act, s 80(3)(b).
2. The discretion to deal with the appeal by way of a new hearing does not require an error of law to be established: Sheehy v NSW Police Force; Rapisarda v NSW Police Force; Housego v NSW Police Force [2018] NSWCATAP 307 at [18]; ZSJ v ZSK [2021] NSWCATAP 144 at [29]. In deciding whether "the grounds of appeal warrant a new hearing" the Appeal Panel must examine the nature and strength of the grounds of appeal and decide whether it considers that those grounds warrant a new hearing: Rapisarda v NSW Police Force; Housego v NSW Police Force at [18].
3. If the Appeal Panel decides to exercise the discretion to deal with an appeal by way of a new hearing, s 80(3)(b), as is plain from its terms, does not restrict the Appeal Panel to considering only "fresh evidence" in the sense used in Akins v National Australia Bank (1994) 34 NSWLR 155 at 160 (in the context of discussing "special grounds" in s 75A(8) of the Supreme Court Act 1970 (NSW)), that is, evidence which generally could not have been obtained with reasonable diligence in the original proceedings; there is a high degree of probability that if admitted there would have been a different result in those proceedings; and, is credible. Rather, s 80(3)(b) permits the Appeal Panel have regard to a broader class of evidence: "evidence in addition to or in substitution for the evidence received by the Tribunal at first instance ... as it considers appropriate in the circumstances".

1. The appellant contends that the decision to decline to admit the entirety of the Provider bundle warrants the exercise of the discretion to deal with the appeal by way of a new hearing. She submits that the material contained in that bundle demonstrates the standard of care and support being provided to Peter is poor, and the Brothers' decision not to remove Peter from the care of the Provider is not in Peter's best interest.
2. As explained above, the Provider bundle was available to the appellant 12 days before the review hearing.
3. It is unclear from the appellant's submission what particular documents within the Provider bundle in her view are likely to have produced a different result in the proceedings. Nor has she identified any particular finding made, or conclusion reached, by the Tribunal which would probably have been different had the bundle been admitted in the review proceedings, less still how that hypothetical different finding or conclusion is likely to have produced a different result in those proceedings.

(2) Account of conversation with receptionist from Mr L's law firm

1. The appellant seeks to rely on an account given by the Cousin (who represented the appellant in the appeal) of her conversation with a receptionist employed by Mr L's law firm.
2. According to the Cousin, in June 2025 she spoke to the receptionist and was told that some of the firm's documents were damaged during the 2022 Lismore floods, but none were destroyed.
3. Three weeks before the review hearing, the appellant was served with Mr L's affidavit in which he claimed that the client file could not be located "due to its likelihood that it had been destroyed during the 2022 floods". With reasonable diligence the appellant could have made enquiries about that claim. In addition, as discussed above, she could have taken steps to ensure Mr L attended and gave evidence at the review hearing about that claim.
4. In any event, even if the Cousin's hearsay account of her conversation with the receptionist had been available in the review proceedings, and, as a consequence, the Tribunal drew an adverse inference from Mr L's failure to provide the client file, we are not persuaded that the decision under appeal would probably have been different for these reasons:

(1) Mr L's claim that Peter "appeared to understand" the effect of the EPoA, was not the only material before the Tribunal about Peter's capacity to make that instrument. The Brothers tendered in the proceedings a letter dated 18 February 2025, in which Peter's GP of 36 years said, "Peter has a development delay and his cognition has deteriorated as he had aged". The GP went on to say that nonetheless, he had "no doubt that in 2016, Peter, had capacity to make the EPoA": at [63], [64].

(2) The appellant's claim that Peter lacked capacity to make the EPOA was unsupported by medical evidence: at [20].

(3) Evidence of the Brothers allegedly endeavouring to limit Peter's contact with the appellant

1. The appellant contends that the following "new" evidence establishes that the Tribunal erred in accepting the Brothers' claim that decisions about her access to Peter are made by him.

1. Until March 2025, Peter met each week with the appellant. In an email sent to the appellant on 19 March 2025, a manager employed by the Provider said that at the recent annual meeting to review his weekly schedule, Peter requested the Provider to schedule him to meet with the appellant each fortnight and to "reserve every other Sunday to spend time with other family members".

(ii) Blocking of appellant's telephone calls to Peter

1. A screenshot of Peter's phone taken some time after March 2025 shows calls to Peter from the appellant had been blocked.
2. The appellant claims that Peter lacks the skills to reconfigure his mobile phone to block her calls. She admits that she does not know who reconfigured Peter's phone but suggests that it might be the Brothers might be responsible.
3. The Brothers claim that the first time they had learnt that calls from the appellant to Peter's phone had been blocked was at the appeal hearing.

1. There was evidence to support the statement made in the 19 March 2025 email that Peter had a weekly schedule of activities, that the Provider consulted Peter about that schedule, and Peter made decisions about that schedule. See, for example, affidavit affirmed by Brother 1 on 29 January 2025 at [35].
2. The screen shot of Peter's phone is corroborative of the appellant's claim that her access to Peter was being limited but does not establish that the Brothers were responsible for blocking her calls to Peter's phone.
3. But even if this new evidence was considered sufficient to cast doubt on the Brothers' claim that Peter made decisions about the appellant's access to him, we are not persuaded as the appellant contends, that it is likely that the decision to confirm the Brothers' appointment as Peter's enduring guardians would have been different. The Reasons do not suggest that the issue of the appellant's access to Peter was considered by the Tribunal to be determinative of its decision to confirm the Brothers' appointment as Peter's enduring guardians. The Tribunal said it based that decision on:

(1) the finding that, while the Brothers "have made decisions that [the appellant] disagrees with, there is no objective evidence that such decisions are contrary to Peter's best interests": at [41];

(2) the finding that "Peter supports the continued involvement of [the Brothers] as his substitute decision makers": at [54]; and,

(3) the submission made by the Separate Representative opposing "any change to the current arrangements": at [55].

1. In an email sent 19 June 2025, a manager employed by the Provider informed the appellant that the Provider had put in place a new practice: an hour or so before her fortnightly meetings with Peter, his blood sugar levels would be tested and, and if found to be elevated, the meeting will be cancelled. The manager explained, "Peter's diabetes needs to be managed very closely when this occurs to ensure that he does not experience a hyper glycaemic episode".
2. Shortly before her scheduled meeting with Peter on 22 June 2025, the Provider sent the appellant a text message stating, "as per [the manager's email sent 19 June 2025 referred to above], [Peter] won't be able to meet with you today".

1. Peter was diagnosed with Type 2 diabetes in 1998. The Tribunal did not expressly address the appellant's allegation that Peter's diabetes was being poorly managed by the staff of the Provider. There was evidence before the Tribunal of the appellant's concern about the management of Peter's diabetes, for example, the report made by a dietician in November 2024 recommending several changes to Peter's diet (appellant's statement, 24 February 2025, at [5]) and the table showing the history of fluctuation of Peter's blood sugar levels in the 24 months to October 2024 (appellant's statement,13 December 2024, p 7). Conversely, there was also evidence that Peter's diabetes was being monitored by several health practitioners involved in his care and staff of the Provider were provided with diabetes education and training: Brother 1's affidavit at [17], [25], [52].
2. The new evidence on which the appellant seeks to rely which shows that Peter's blood sugar levels were elevated from time to time after the review hearing is unlikely to have produced a different result in the decision to confirm the Brothers' appointment as enduring guardians.

1. We do not consider that the new material on which the appellant rely warrants a new hearing and we decline to exercise the discretion to deal with the appeal by way of a new hearing.

1. The appellant urges us to exercise the discretion to grant leave to appeal (NCAT Act, s 80(2)(b)). She contends that the new material referred to above, together with the procedural and factual errors made by the Tribunal referred to in her grounds of appeal, demonstrates that it would be unjust to allow the decisions under appeal to stand.
2. The Brothers oppose leave to appeal being granted and point out that, in the notice of appeal, the appellant said she was not seeking leave to appeal. In any event, they contend that the appellant has failed to establish that there is a sound basis to grant leave to appeal.
3. The appellant said she made a mistake in answering "no" to the question "Are you asking for leave [to appeal]?" in the Notice of Appeal.

1. In Collins v Urban [2014] NSWCATAP 17 (Collins), an Appeal Panel of NCAT noted at [84] that there must be a "sound basis" to grant leave to appeal under s 80(2)(b) of the NCAT Act. The Appeal Panel stated that ordinarily it is appropriate to grant leave to appeal only in matters that involve:

"(a) issues of principle;

(b) questions of public importance or matters of administration or policy which might have general application; or

(c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand;

(d) a factual error that was unreasonably arrived at and clearly mistaken; or

(e) the Tribunal having gone about the fact-finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed".

(Citations omitted)

1. Where, as here, the decision under appeal was made by the Guardianship Division of NCAT, in exercising the discretion to grant leave, the protective character of the jurisdiction exercised by that Division must be considered: SAB v SEM & Ors [2013] NSWSC 253 at [10]; C v W [2015] NSWSC 1774 at [44]- [46]; ZXH v ZXI [2022] NSWCATAP 269 at [76].

1. The reasons we gave for concluding that the new material on which the appellant relies does not warrant the exercise of the discretion to deal with the appeal by way of a new hearing, apply equally to the exercise of the discretion to give the appellant leave to appeal. For the reasons given above we reject the contention that the Tribunal made a series of factual and procedural errors of the type identified by the appellant in the grounds of appeal.
2. The appellant has failed to identify any of the factors in Collins which might warrant the exercise of the discretion to grant leave to appeal. The proposed appeal raises no issue of general importance or matters of principle. Nor does it involve a clear injustice such that it would be in the interests of justice to revisit the decision.
3. The proposed appeal has no reasonable prospects of success.
4. Leave to appeal is refused.

(1) The Appeal Panel declines to exercise the discretion to deal with the appeal from the decision made by the Tribunal on 25 February 2025 by way of a new hearing.

(2) The Appeal Panel declines to exercise the discretion to give the appellant leave to appeal from the decision made by the Tribunal on 25 February 2025.

The brother of Peter, and his enduring guardian and attorney.

The brother of Peter, and his enduring guardian and attorney.

The cousin of the appellant and her representative in the appeal. Not a party to the appeal.

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.