YPH v YQC

Civil and Administrative Tribunal Act 2013 (NSW), ss 3, 4, 32(4), 36(1), 36(3), 38(1)-(2), 38(5)(c), 38(6)(a), 38(6)(c), 49, 49(1)-(2), 62(3), 62(3)(c), 64, 80, 80(2)(a)-(b), 80(3)(a)-(b); Sch 6, cls 11(1), 11(3)

Guardianship Act 1987 (NSW), ss 4, 4(e)

Migration Act 1958 (Cth), s 425(1)

Powers of Attorney Act 2003 (NSW), ss 35, 36(1)-(2)

Supreme Court Act 1970 (NSW), s 75A(8)

Akins v National Australia Bank (1994) 34 NSWLR 155

Antonio Di Liristi v NSW Public Trustee and Anor [2021] NSWSC 1347

Australian Postal Corporation v Hughes (2009) 111 ALD 579; [2009] FCA 1057

Bilgin v Minister for Immigration and Multicultural Affairs [1997] FCA 1022; (1997) 149 ALR 281

C v W [2015] NSWSC 1774

Collins v Urban [2014] NSWCATAP 17

Da Costa v The Queen (1968) 118 CLR 186; [1968] HCA 51

Davis v NSW Land and Housing Corporation [2016] NSWCA 325; (2016) 18 BPR 36,459

Feldman v Nationwide News Pty Ltd (2020) 103 NSWLR 307; [2020] NSWCA 260

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

Houda v Seraphim [2025] NSWCATAP 135

Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18

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

Kudrynski v Orange City Council [2024] NSWCA 33

Michael Wilson & Partners Limited v Nicholls (2011) 244 CLR 427; [2011] HCA 48

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18

Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17

Mohareb v Kelso (No 2) [2018] NSWCA 246

Mohareb v Saratoga Marine Pty Ltd [2020] NSWCA 235

New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231

Osland v Secretary to the Department of Justice (No 2) (2010) 241 CLR 320; [2010] HCA 24

Parker v Higgins [2012] NSWSC 1516

Re Henry; JL v Secretary, Department of Family and Community Services [2015] NSWCA 89

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

Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98

Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33

SAB v SEM [2013] NSWSC 253

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

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

South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16

SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 231 ALR 592; (2006) 81 ALJR 515

Thomaz and Naaz Pty Ltd v Chief Commissioner of State Revenue [2023] NSWCA 40

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 88-year-old YNS (the Mother) who was diagnosed with Alzheimer's dementia in 2017. The background to this appeal is a dispute between the appellant, YPH, the Mother's former husband and YPH's sister and brother, concerning the decision made by YPH's brother in 2024, in exercise of his authority as enduring guardian to move the Mother to live in residential aged care. The appellant in these proceedings, believes that this decision was not in her mother's best interests. On the other hand, the other members of the Mother's immediate family support that decision and believe that by late 2024 the Mother could no longer be adequately cared for at home.
2. In June 2018, the Mother executed instruments appointing her son, YQC (the Son) as her enduring guardian and attorney (the enduring appointments).
3. In December 2024, the appellant applied to the Guardianship Division of the NSW Civil and Administrative Tribunal (NCAT) requesting review of the enduring appointments. She contended that as enduring guardian and attorney, the Son was making decisions that were not in their Mother's best interests.
4. Following a hearing on 14 April 2025, the Tribunal declined to revoke the enduring appointments and instead decided:

(1) to confirm the appointment of the Son as the Mother's enduring guardian; and

(2) to not review the operation and effect of the instrument appointing the Son as the Mother's attorney and to dismiss the appellant's application seeking review of the enduring power of attorney.

1. The appellant appeals from each decision. In addition, she appeals from the decision made by the Tribunal to refuse to admit a video recording she made of several conversations with the Mother. In addition, the appellant seeks leave to appeal from each decision and requests that we exercise the discretion conferred by the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act) to deal with the appeal by way of a new hearing.
2. We concluded that the Tribunal did not make legal errors of the type identified by the appellant. In addition, we decided not to exercise the discretion to give the appellant leave to appeal or to deal with the appeal by way of a new hearing.
3. Because of the sensitive and personal nature of the matters discussed, in these reasons we have not used the real names of the parties. At Annexure A to these reasons, we set out the pseudonyms assigned to the parties in this appeal, and the corresponding names used in these reasons.

1. The decisions to confirm the appointment of the Son as the Mother's enduring guardian, to decline to review the operation and effect of the power of attorney made by the Mother in June 2018 (the EPoA), and the decision to refuse to admit the video recording of conversations with the Mother are "internally appealable decisions": NCAT Act, s 32(4).
2. As a party to the proceedings in which those decisions were made, the appellant has a right to appeal from the first two decisions on a question of law or, with the leave of the Appeal Panel, on any other ground: NCAT Act, s 80(2)(b). Because the third decision, to refuse to admit the video recording, is an interlocutory decision, the appellant requires leave to appeal from that decision: NCAT Act, ss 4, 80(2)(a).

1. In submissions filed in support of the appeal on 5 August 2025 (the August 2025 submissions), the appellant significantly enlarged both the issues raised and purported questions of law she set out in the notice of appeal and accompanying submissions, filed on 11 July 2025. Similarly, the issues canvassed, and the purported questions of law set out in the submissions prepared and filed on 5 August 2025 by the solicitor then representing the appellant in this appeal, were much narrower in scope than those listed in the August submissions. In the hearing of the appeal, the appellant advised that she is now self-represented and no longer relies on the submissions prepared her solicitor.
2. The August 2025 submissions are 77 pages in length and contain multiple assertions of fact and law, together with submissions and evidence. They identify about 100 purported questions of law. In contrast, the Notice of Appeal and the accompanying submissions identify about eight purported questions of law.
3. The appellant did not seek leave to amend the Notice of Appeal or raise her intention to do so with the other parties. The respondents to the appeal were entitled to assume, as reflected in their respective replies and submissions opposing the appeal, that they were required to respond to the purported questions of law set out in the Notice of Appeal and the accompanying submissions.
4. In our view it would be procedurally unfair to permit the appellant to rely on the additional purported questions of law set out in the August 2025 submissions. For that reason, as we explained in the hearing of the appeal, we will restrict our consideration to the purported questions of law identified in the Notice of Appeal and accompanying submissions and the parts of the August 2025 submissions that addressed those questions.

1. Section 80(2) of the NCAT Act As gives the appellant a right to appeal on a "question of a law". The existence of a question of law is not merely a qualifying condition to the right of appeal conferred by s 80(2) of the NCAT Act; rather, the question of law is the subject matter of the appeal: Osland v Secretary to the Department of Justice (No 2) (2010) 241 CLR 320; [2010] HCA 24 at [21]; Davis v NSW Land and Housing Corporation [2016] NSWCA 325; (2016) 18 BPR 36,459 at [77].
2. An appeal is not on a question of law merely because it is asserted that an error of law was made by the Tribunal: Thomaz and Naaz Pty Ltd v Chief Commissioner of State Revenue [2023] NSWCA 40 at [32]. What constitutes a question of law is "vexed and context dependent" and must be approached as a matter of substance and not form: Thomas and Naaz at [52]-[53]; Da Costa v The Queen [1968] HCA 51; (1968) 118 CLR 186 at 194; [1968] HCA 51.
3. An appellant is required to identify with precision the question of law said to be raised by the appeal: Ferella & Anor v Chief Commissioner of State Revenue [2014] NSWCA 378 at , [22]; at . However, where, as here, the appellant is self-represented in considering whether as a matter of substance a question of law has been identified, we adopt the "more generous or benevolent approach" endorsed by the Court of Appeal in at , [51]. Adopting that approach, the following questions of law can be discerned from the Notice of Appeal and the accompanying submissions:

(1) Whether the Tribunal failed to afford the appellant procedural fairness by:

(a) not giving her a reasonable opportunity to give evidence and make submissions in the hearing on 14 April 2025 (the review hearing);

(b) not giving her a reasonable opportunity to address adverse evidence about her;

(c) permitting an entourage of people to attend the review hearing, thereby making it difficult for the appellant to participate in that hearing.

(2) Whether the Tribunal failed to afford the Mother procedural fairness by asking questions that the Mother was unable to understand because of her level of cognitive impairment.

(3) Whether the Tribunal failed to afford the appellant procedural fairness by being biased against her.

(4) Whether the Tribunal failed to give adequate reasons for its decision to decline to exercise the discretion to review the operation and effect of the power of attorney made by the Mother in 2018, appointing the Son as her attorney (the EPoA).

(5) Whether, in reviewing the Son's appointment as enduring guardian, the Tribunal failed to observe the principle stated in s 4(e) of the Guardianship Act 1987 (NSW), "the importance of preserving the family relationships and the cultural and linguistic environments of [people with disability]".

Ground 1(a): Whether the Tribunal failed to afford the appellant procedural fairness by failing to give her a reasonable opportunity to give evidence and make submissions in the review hearing

1. The appellant contends that the Tribunal failed to give her a reasonable opportunity to be heard during the review hearing by:

(1) imposing unreasonable time limits, interrupting her throughout the hearing and conducting the hearing in a rushed manner

(2) failing to give her a reasonable opportunity to respond to the Tribunal's question about whether she was seeking review of the making of the EPoA.

Contention 1: the Tribunal subjected the appellant to unreasonable time limits, interrupted her repeatedly throughout the hearing and conducted the hearing in a rushed manner

1. The appellant contends that in the review hearing the Tribunal failed to give her a reasonable opportunity to speak to the written material she filed in support of her applications seeking review of the EPoA and the Son's appointment as enduring guardian (the Applications). She asserts that contrary to its claim, the Tribunal had not read that material and by refusing to permit her to read out parts of that material deprived her of a reasonable opportunity to put her case.
2. In addition, the appellant asserts that the Tribunal imposed unreasonable limits on the time available to her to speak during the review hearing. In contrast, the Tribunal did not impose corresponding time limits on the Father or the Son.
3. Further, the appellant contends that the Tribunal repeatedly said that the hearing needed to be completed within its allocated two and a half hours. The Tribunal attempted to "shut her down" by constantly interrupting her and causing her to lose her train of thought.
4. In support of the above contentions, the appellant relies on the following extracts of the transcript of the review hearing (emphasis added by the appellant):

"Exchange 1

[01:22:27] Presiding Member: But can I just, sorry, just I'm, I'm conscious of the time. Yes.

[01:22:29] Presiding Member: 'cause we've got about a half hour left. Okay. We still haven't got to the power of attorney, but I just wanna be clear what you are suggesting would be the better arrangement now for your mom. Are you suggesting that you and your brother should be the joint decision makers, as you said that you think your mom wanted back in 2019, or are you thinking that it should be just you or what, what are you proposing should be put in place?

[01:22:52] Presiding Member: What am I asking? Okay,

Exchange 2

[01:03:00] Presiding Member: So [appellant], um, you've obviously provided very detailed written submissions to us.

[01:03:23] Presiding Member: Thank you for that. Um, I think probably what would be helpful though would be if you could just give us a very brief summary of what exactly your concerns are about the care and support that your mom is receiving and any decisions that have been made by your brother that you've got worries about. If you could just sort of give us a, a summary of that, I think that would be very helpful.

Exchange 3:

[01:10:34] Appellant: Yes. So I was in touch with the manager, uh, his name is MD.

[01:10:40] Appellant: And I arrange for her, they're also force feeding her, um, at a table with other residents. And I happened to come in by chance during dinner, and I saw what was going, 'cause my mom used to sit at home with, when my, with my dad and eat with cutlery, she doesn't need to be fed.

[01:10:59] Presiding Member: Mm-hmm.

[01:10:59] Appellant: [01:11:00] And, um, they were saying, oh, wake up [Mother].

[01:11:02] Appellant: And she, she closes her eyes when she's chewing. So then I spoke with the manager and had her move to a table separately with cut food, and I spoke to the chef and so we're organized soft foods for her, like avocados and salmon and mashed potato, et cetera. Mm-hmm.

[01:11:22] Community Member: So, so, so [appellant], as,

[01:11:25] Community Member: As I understand it, there were issues

1. The appellant contends that the question asked by the Tribunal in Exchange 3, "[H]ow, short is [the written submission you prepared]? I'm just conscious of the time ...", was but one of several examples of being interrupted while making oral submissions and being subjected to unreasonable time constraints. Further examples include the Tribunal's direction to her, to give "a very brief summary" (Exchange 2), and to not repeat what she said in her written statement (Exchange 5).
2. The appellant contends that Exchanges 1, 3, 4, 5, and 6 demonstrate that the Tribunal made repeated references to the limited time to complete the hearing which supports her claim that the hearing was rushed and conducted at a frenetic pace.
3. The Son and the Father disagree.
4. The Son contends that the Tribunal conducted the hearing in a fair manner and gave the appellant reasonable time to make submissions. He points out that at the outset the Tribunal said that it would deal with the appellant's applications in turn and commence by addressing the application to review the EGA. He said many of the Tribunal's interventions about which the appellant complains were necessitated because she failed to comply with that direction, giving as an example Exchange 7. In addition, he disagrees with the appellant's contention that the Tribunal repeatedly interrupted the appellant.
5. The Son contended that it was apparent that the members of the Tribunal had read the large amount of material filed by the appellant. In those circumstances, it was not procedurally unfair for the Tribunal to request the appellant not to repeat what she said in that material.
6. The Father said the Tribunal was "extremely professional". He pointed out that the hearing went beyond the allocated time, much of was taken up by submissions made by the appellant. He said it was apparent that the Tribunal had read and was familiar with the material filed by the appellant and the other parties.

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 proceedings had a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings: NCAT Act, s 38(5)(c).
2. Section 3 of the NCAT Act sets out its objects, which include, in (d): "to enable the Tribunal to resolve the real issues in proceedings justly, quickly, cheaply and with as little formality as possible".
3. Section 36(1) of the NCAT Act identifies the guiding principle for the Act and the procedural rules in their application to proceedings in NCAT to be "to facilitate the just, quick and cheap resolution of the real issues in the proceedings" (the guiding principle). All parties to proceedings are obliged to co-operate with the Tribunal to give effect to that principle and, for that purpose, to participate in the processes of the Tribunal and to comply with directions and orders of the Tribunal: NCAT Act, s 36(3).
4. The Tribunal has power to determine its own procedure: NCAT Act, s 38(1). In addition, the Tribunal has an express power to set time limits for the presentation of the respective cases of the parties if limits are determined reasonably necessary for the fair and adequate presentation of the case: NCAT Act, s 38(6)(c).
5. 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", 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; [2001] HCA 22; Kioa at 584, 585, 609, 610; Antonio Di Liristi v NSW Public Trustee and Anor [2021] NSWSC 1347 at .

1. It is not in issue that the appellant was given and availed herself of the opportunity to provide the Tribunal with extensive written material in support of the Applications before the hearing. The crux of her complaint is that she was not given a reasonable opportunity to speak to that material during the review hearing, and further, that the hearing was conducted in a rushed manner which caused her to lose her train of thought.
2. Central to Contention 1 is the assertion that the Tribunal had not, as claimed, read the appellant's material before the hearing. That assertion is not supported by the transcript of the hearing which demonstrates that in the statements made and questions asked, the Tribunal was familiar with the content of the material filed by the parties. For example, unprompted the Presiding Member referred to:

(1) the filed documents prepared by the health professionals, who had seen the Mother over the years, and her diagnosis of Alzheimer's dementia: 00:31:18 minutes;

(2) the filed medical reports that suggest that the Mother lost decision-making capacity and the enduring guardianship appointment came into effect a "few years ago": 00:32:35 minutes;

(3) the Mother living in an aged care facility in [name of suburb] and first moving there on a respite basis: 00:36:46 minutes;

(4) the Father living with the Mother immediately before she moved into the aged care facility: 00:50:54 minutes; and

(5) the Mother having a half share in the house in the family home in the Blue Mountains and an apartment on Sydney's lower north shore: 01:45:02 minutes.

1. If it is suggested by the appellant that it was procedurally unfair for the Tribunal to require the parties to address each application in turn, we are unable to agree. The broad power given to the Tribunal to determine its own procedure (NCAT Act, s 38(1)), permitted the Tribunal to determine the order each application would be addressed in and to require the parties to structure their submissions in the review hearing accordingly. Adopting that approach was entirely consistent with the Tribunal's duty to resolve the real issues in proceedings justly, quickly, cheaply.
2. The appellant appears to suggest that she was disadvantaged because the structure of her oral submissions did not correspond with the order in which the Tribunal had decided to deal with the applications. If so, the appellant failed to advise the Tribunal of that fact. In any event, in the absence of some special vulnerability or disadvantage suffered by a party, the obligation to afford a reasonable opportunity to be heard does not require the Tribunal to accommodate a party's preference about the order in which issues will be discussed during a hearing. The approach adopted by the Tribunal of dealing with the applications sequentially and directing the parties to tailor their oral evidence and submissions accordingly was unremarkable and entirely orthodox.
3. Nor are we able to agree with the contention that the Tribunal repeatedly interrupted the appellant throughout the review hearing, or that those interruptions were unwarranted and deprived her of a reasonable opportunity to be heard. The interruptions about which the appellant complains must be seen in context. For example, the interruption the subject of Exchange 3 occurred in the context of the appellant outlining in considerable detail her concerns about the quality of the care the Mother was receiving in the aged care facility. The Tribunal questioned the relevance of those concerns given, as the appellant conceded, they had largely been addressed. It is entirely consistent with the obligation to facilitate the just, quick and cheap resolution of the real issues in the proceedings for the Tribunal to redirect a party seeking to elaborate on issues they consider to be important, but which are irrelevant or peripheral to the real issues in the proceedings. Similarly, the Tribunal's actions in directing the appellant not to repeat or read out her written submissions as occurred in Exchange 2, 4 and 5, was consistent with that obligation.

Contention 2: the Tribunal failed to give the appellant a reasonable opportunity to respond to its question about whether she was seeking review of the making of the EPoA

1. In the proforma application for review of the EPoA, the appellant answered "both" to the question "what type of review are you seeking?":

1. The appellant acknowledges that in the review hearing when asked by the Tribunal whether she was seeking review of the making of the EPoA, she answered "no". She claims that at the time she felt flustered and under pressure. She contends that it was procedurally unfair for the Tribunal to ask her to decide about the scope of the review, without offering her an adjournment to consider her response.
2. In addition, she contends that because she clearly stated in the initiating application that she was seeking review of both the making of, and the operation and effect of, the EPoA, the Tribunal was obliged to determine the former, notwithstanding her response to its question.
3. The Son and Father disagree that the Tribunal pressured the appellant to quickly respond to its question about whether she was challenging the making of the EPoA. The Son points out that the Tribunal invited the appellant to confer with her McKenzie Friend about whether she was challenging the making of the EPoA. At no point did the appellant indicate that she did not understand the question asked by the Tribunal or ask for time to consider her response.

1. Before commencing to deal with the application to review the EPoA, the Tribunal asked the question about which the appellant now complains, which is contained in the following extract from the transcript (our emphasis):

"[01:37:35] Presiding Member: Mm-hmm. Firstly, is your, is it your submission that the enduring power of attorney that your mom signed is not valid? Are you asking us to review the making of the power of attorney? Or are you asking us to review the operation and effect of the enduring power of attorney? So how it's actually working in practice.

[01:37:58] Presiding Member: And I'm happy for your, yeah, [01:38:00] your friend to help you try

[01:38:01] [Appellant's McKenzie friend]: Repeat. Sorry,

[01:38:03] [Appellant's McKenzie friend]: Sorry. Speak.

[01:38:05] Presiding Member: Do you wanna just move up so we can hear you through the microphone?

[01:38:09] Appellant: He couldn't hear.

[01:38:11] Presiding Member: So the, the real question is, are we being asked to review the making of the enduring power of attorney or are we being asked to review the operation and effect of the enduring power of attorney?

[01:38:22] Presiding Member: 'cause obviously, depending on which one, that will affect the questions that we need to ask.

[01:38:28] [Appellant's McKenzie friend]: I'll just speak back.

[01:38:29] Presiding Member: Sure

[01:39:19] [Appellant's McKenzie friend]: Thank you. Thank you.

[01:39:22] Presiding Member: No problem. So, generally speaking, uh, make this clear to review the making of the enduring power of attorney suggests that you think there was some problem when the document was signed, that it wasn't a valid document, that your mom was subject to undue influence or there was some problem with how it was made.

[01:39:42] Presiding Member: Uh, and you would need to provide evidence in support of that view if you're asking us to review the operation in effect, that's more a question of you think that the way your brother has been using his power as your mom's attorney has not been working in her best interest. So I would say the second is a more common form of review than the first, but it's [01:40:00] entirely up to you what, what you're asking us to look at.

[01:40:02] Appellant: Okay, I understand.

[01:40:03] Appellant: Thank you. So, uh, I would like you the, the tribunal to review the exercise and carrying out that. I see."

1. The claim that the Tribunal pressured the appellant to narrow her application for review or asked her about the scope of her application in a manner that was apt to confuse or was otherwise procedurally unfair is rejected. As the extract from the transcript set out above reveals, the Tribunal:

(1) gave the appellant a simple, plain English explanation of the difference between a review of the making of, and a review of the operation and effect of an EPoA;

(2) said that the decision about the scope of the review was "entirely up to" the appellant;

(3) invited the appellant to confer with her McKenzie Friend; and,

(4) proceeded to restrict its review to the operation and effect of the EPoA only after the appellant said that she understood the question asked by the Tribunal and that she was not seeking review of the making of the EPoA.

1. The contention that the Tribunal was obliged to review the making of the EPoA because the appellant said in her written application that she was seeking review of both the operation and effect and the making of the EPoA is unsupported by authority. The Tribunal's actions in asking the appellant to clarify the scope of her application was appropriate and consistent with its duty to facilitate the just, quick and cheap resolution of the real issues in the proceedings.
2. This ground is rejected.

Ground 1(b) The Tribunal was required and failed to give the appellant a reasonable opportunity to respond to evidence adverse to her

1. The appellant contends that the Tribunal was required but failed to give her a reasonable opportunity to address allegations made by the Son and the Father about her. Of particular concern is a letter written by the Father apparently around the time the Mother moved to residential aged care, "Father's advice to a daughter" (the impugned letter). The appellant contends that that letter unfairly paints her as a source of conflict between her siblings. She contends that the Tribunal accepted that characterisation "at face value" without giving her an opportunity to respond. Citing, SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 231 ALR 592; (2006) 81 ALJR 515 (SZBEL), the appellant contends that the Tribunal was required to invite her to comment on the impugned letter, and by failing to do so, denied her procedural fairness.
2. The Father and the Son argue that the appellant overstates the significance of the impugned letter to the issues raised by the Applications. They dispute that the obligation to afford the appellant procedural fairness required the Tribunal to invite the appellant to comment on that letter.

1. To put the submissions made by the parties in context it is necessary to provide some background to the impugned letter. In its reasons for decision, under the heading, "Is it in the best interest of [the Mother] that the enduring guardianship appointment be revoked?", the Tribunal considered decisions made by the Son in exercise of his authority as enduring guardian. At [48], the Tribunal identified the "most significant decision of concern" to the appellant, the decision to move the Mother to residential aged care.
2. For several years before moving to residential aged care, the Mother was living in her own home with care and support provided by the Father, and external care providers. At [20], the Tribunal recorded that the Father, who is in his 90s, said that as the Mother's dementia progressed, she required "24/7 care and supervision, which could no longer be provided at home".
3. At [50]-[56], the Tribunal recorded the Son's explanation for his decision to move the Mother to residential aged care and the material he relied upon in support of that decision. That material included a letter dated 11 July 2024, in which geriatrician Dr [xxx] said the mother required 24/7 care and a decision that she move to aged care would be "completely reasonable".
4. At [57], the Tribunal recorded that the appellant's sister (the Sister) supported the Son's decision to move the Mother to residential aged care and said that the Father "could not manage to look after her at home any longer".
5. At [58]-[59], referring to the impugned letter, the Tribunal said:

"58 With his written statement, [the Father] provided us with a copy of an undated "letter", titled 'a Father's Advice to his daughter', addressed to [the appellant]. From its content, it appears to have been written shortly after [the Mother's] move into residential aged care. [The Father] refers to the conflict between [the appellant] and her siblings, and asks her to reconcile with them.

59 In the letter, [the Father] advises [the appellant] that he could no longer 'handle' caring for [the Mother] at home, noting that his own health is fading. He says that additional home services would be of 'marginal value' and that she needs to live somewhere where she is looked after 24 hours a day. He says the only option available within the family's resources was for [the Mother] to move into a residential aged care facility. He indicates that while the facility found by [the Son] in [the North Shore] is not perfect, the family can ensure that [the Mother] receives care which 'complies with our requirements.'"

1. SZBEL concerned a decision made by the Refugee Review Tribunal (RRT), to affirm a decision made by a delegate of the Minister for Immigration to deny a protection visa to Iranian merchant seaman, SZBEL. In a statutory declaration prepared in support of that application, SZBEL said that the reason he jumped ship off the coast of NSW was because he feared for his safety as the captain of that ship, a ship of the Islamic Republic of Iran, knew of his interest in the Christian religion. In support of that claim, SZBEL referred to three incidents:

(1) in early 2001, friends in his home village in Iran urged him to "renounce his heresy, and to embrace Islam" after he confided in them his interest in Christianity;

(2) when he returned to his ship, he was questioned by the Captain who had heard rumours that he was a Christian and said he "would be dealt with accordingly" when the ship returned to Iran;

(3) returning to his ship, after seeking medical treatment in Australia, with the permission of the Captain.

1. The Minister's delegate refused the application on the basis that he was not satisfied that SZBEL had "a genuine commitment to Christianity". In relation to the third incident, the delegate found that SZBEL's conduct in returning to his ship was inconsistent with his claimed fear of persecution. The delegate did not address the first two incidents.
2. The RRT affirmed the delegate's decision and, without notice to SZBEL rejected his evidence as to the first two incidents, finding each to be implausible. In an appeal from the Federal Court of Australia, the High Court, concluded at [44] that the RRT's failure to give SZBEL a sufficient opportunity to give evidence and make submissions about the first two incidents occasioned a breach of procedural fairness. At [43], the High Court said it was significant that the Minister's delegate did not base his decision on either of those incidents, and the RRT did not identify either as being important to its decision or challenge SZBEL's account of them:

"Based on what the delegate had decided, the appellant would, and should, have understood the central and determinative question on the review to be the nature and extent of his Christian commitment."

1. At [33], the High Court pointed out that s 425(1) of the Migration Act 1958 (Cth) gave SZBEL an entitlement to be invited to "give evidence and present arguments relating to the issues arising in relation to the decision under review" (our emphasis). The High Court said at [35], the phrase "issues arising" meant more than the satisfaction of the statutory criteria for a protection visa, but instead commenced with the reasons for decision given by the Minister's delegate. The High Court said that, if the RRT was to go beyond those issues, it was required to put SZBEL on notice of its intention to do so, unless statements made or questions it asked "sufficiently indicate to an applicant that everything he or she says in support of the application is in issue": SZBEL at [34]-[35], [47].

1. The requirements of procedural fairness are flexible and always depend on the nature of the decision being made and its factual and statutory context: SZBEL at [26]; Kioa at 612, 626. Highly relevant to the High Court's decision in SZBEL was the entitlement conferred on visa applicants by s 425(1) of the Migration Act, to be invited by the RRT "to give evidence and present arguments relating to the issues arising in relation to the decision under review".
2. We understand the passage in the impugned letter which the appellant contends painted her in an unfavourable light and the Tribunal was obliged to respond to be:

"Mum and I are in the twilight years of our lives - a time at which we should live a tranquil life. While you are at loggerheads with your brother and sister it is not helpful to achieve this objective. As the eldest in the family, you should reconcile with them and move on."

1. Neither the NCAT Act, the Guardianship Act nor the Powers of Attorney Act 2003 (NSW) (PoA Act) contain an equivalent provision to s 425(1) of the Migration Act. In addition, there are significant differences between the nature of the decision made by the Refugee Review Tribunal and the decisions the subject of this appeal. Leaving those differences to one side, the appellant's argument that SZBEL is authority for the proposition that the Tribunal was obliged to invite her to respond to the offending extracts of the impugned letter must be rejected for these reasons:

(1) It is apparent from the Reasons that in referring to the impugned letter, the Tribunal was merely referring to the Father's opinion about the appellant's response to the Son's decision to move the Mother to residential aged care. The Tribunal did not say it endorsed that opinion, in particular, the opinion the appellant attributes to the Father, that she was responsible for the conflict within the family which arose as a result of that decision.

(2) Even if it is accepted that the Tribunal implicitly found that the appellant was responsible for the ensuing family conflict, there is nothing in the Reasons to suggest that this purported finding was relevant in some way to its decision to confirm the Son's appointment as the Mother's enduring guardian or the findings on which that decision was based.

(3) Contrary to the appellant's assertion, SZBEL does not stand for the general proposition that procedural fairness requires the Tribunal to invite a party to respond to any adverse comment made about them by another party.

Ground 1(c) Permitting the Son's entourage of people to attend the review hearing and making it difficult to participate

1. The appellant contends that she was denied procedural fairness by the attendance of the Son's "entourage", his wife and two children and a family friend. The appellant claims that she had not spoken to her sister-in-law for over five years and was not permitted to have contact with her Son's children. She claimed she felt intimidated and overwhelmed by their presence and this made it difficult for her to participate in the review hearing. The appellant contended that in circumstances where her only supporter was a McKenzie Friend, the attendance of the entourage created a power imbalance.
2. The Father and the Son disagree. As pointed out by the Tribunal in the review hearing, hearings in the Guardianship Division are open to the public. The attendance of the sister-in-law, niece, nephew and family friend did not make the review hearing procedurally unfair.

1. Hearings of NCAT, including those conducted in the Guardianship Division, are open to the public: NCAT Act, s 49(2). The Tribunal may order (of its own motion or on the application of a party) that a hearing be held wholly or partly in private if it is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter, or for any other reason: NCAT Act, s 49(1).
2. In the recent decision of Houda v Seraphim [2025] NSWCATAP 135, an Appeal Panel of NCAT endorsed the consistent view taken by NCAT and one of its predecessors, the NSW Administrative Decisions Tribunal, that s 49 of the NCAT Act (and s 64, the power to make confidentiality orders) should be interpreted as being subject to the presumption in favour of open justice.
3. There may be circumstances where the presence of a particular individual in a hearing might deprive a party of a reasonable opportunity to put their case. For example, where the individual repeatedly interrupts a party while they are giving evidence or making submissions, or, threatens a party in or outside the hearing room; or where a party has a particular disability, history of trauma or other vulnerability, which impedes their ability to participate in a hearing if a particular individual is present. The appellant made no complaint about the conduct of the Son's immediate family in the hearing. Nor is it suggested that the appellant has a particular disability or some other vulnerability, which impeded her ability to participate in a hearing in their presence. Rather the appellant's complaint is that their very presence caused her to feel uncomfortable and intimidated and this made it difficult for her to participate in the review hearing.
4. The default position created by s 49 of the NCAT Act is that hearings of the Guardianship Division are open to the public. Nonetheless, if it was satisfied that it was desirable to do so, it was open to the Tribunal to conduct the review hearing in the absence of the Son's immediate family, notwithstanding that the appellant did not request Tribunal to do so. However, we are not persuaded that the Tribunal's failure to exercise that discretion deprived the appellant of a reasonable opportunity to participate in the review hearing. At its highest, the appellant's complaint is that she felt uncomfortable and intimidated because the Son's immediate family attended the review hearing. The transcript of the review hearing reveals that the appellant made full and responsive submissions throughout that hearing and does not support the claim that she was unable to participate in the review hearing because of the attendance of the Son's entourage.

Ground 2: Whether the Tribunal failed to afford the Mother procedural fairness by asking her questions in an inappropriate manner

1. The appellant asserts that in the review hearing, the Tribunal questioned the Mother in a manner which was procedurally unfair by using language which was inappropriate given the Mother had been diagnosed with advanced Alzheimer's disease. She asserts that the Tribunal asked questions, "in a manner that presumed full cognitive capacity".
2. In the hearing of the appeal, the appellant reformulated this ground contending that the Tribunal was obliged to test the Mother's views about the Applications and its failure to do so amounted to a denial of procedural fairness. In support she points to the answer given by the Mother in response to the following question asked by the Tribunal

"[00:29:51] Mother: Yeah. I'm not tired.

[00:29:58] Mother: I'm just, [00:30:00] you can say,

...

[00:29:32] Presiding Member: I just wanted to check with you first in case there were any concerns or worries that you have.

[00:29:46] Mother: yeah."

1. The Father and the Son disagree. They say the questions asked by the Tribunal were appropriate and respectful. They contend that it is evident from its questioning of the Mother that the Tribunal was endeavouring to elicit the extent to which the Mother was able to participate in the hearing.

1. At [8], the Tribunal referred to the Mother's participation in the hearing:

"8 [The Mother] attended the hearing in-person with assistance from a support worker. Part-way through the hearing, [the Mother's] support worker indicated that she felt [the Mother] should leave, as she was getting tired. All parties agreed that this was appropriate, and we continued with the remainder of the hearing in her absence. ..."

1. It is apparent that in its initial questions the Tribunal was endeavouring to put the Mother at ease and to form an opinion about her ability to comprehend the questions it asked together with the issues raised in the proceedings. For example, after thanking the Mother for attending the hearing and apologising for the confusion which led her going to the wrong hearing room, the Presiding Member asked the Mother the following questions:

"[00:24:31] Presiding Member: Did you get a taxi in or did you get a car to take you in today?

[00:24:49] Community Member: How, how did you, [ma'am) how did you get here, [Mother]? How did you get to the tribunal today? How did you travel here?

[00:24:58] Mother: I travelled here. Mm-hmm. [00:25:00] Came there from our place.

[00:25:06] Presiding Member: Okay. Alright. Thank you. Thank you. Um, can you remember where it is you're staying at the moment? Where do you live at the moment? And if you're not sure, that's okay."

1. The Presiding Member then went on to ask, "how many children do you have?", to which the Mother responded, "I have my children now".
2. The Presiding Member then went on to ask a series of questions about the Son's performance as the Mother's substitute decision-maker.

"[00:27:00] Presiding Member: Now, as I said at the beginning, a few years ago, you signed some legal papers, which gave [the Son] the power to look after your money and to make decisions for you if needed.

[00:27:18] Presiding Member: Mm-hmm. Are you happy with those arrangements? Are you satisfied that ruined??? Can do that for you or you, have you got any worries about that?

[00:27:29] Mother: No.

[00:27:30] Presiding Member: No problem. Is that what you said? No. No problem. Okay. So you're still today, are you still happy for [the Son] to be the one making decisions for you if needed? Yeah.

[00:27:45] Presiding Member: Yeah. What about in relation to your money? Do you think [the Son] is a good person to look after your money for you, make sure your bills are paid?

[00:27:55] Mother: I think I have,

[00:28:01] Mother: I,

[00:28:05] Mother: I, I have our children and everything, but I don't, I don't make, uh, difficult stuff and all that, but we are, we are happy to, uh, uh, make it our repeat mm-hmm. Together and talk to them and be there and be happy.

[00:28:40] Presiding Member: Right. Wonderful. Well, that's, that's what everybody wants, isn't it? To be happy.

[00:28:44] Mother: Yeah.

[00:28:45] Presiding Member: And to be together.

[00:28:46] Presiding Member: That's great.

[00:28:47] Mother: Yeah.

[00:28:48] Presiding Member: Okay. Is there anything that you have any concerns about in terms of how you're being looked after at the moment? Do you feel like you're being looked after well, or do you [00:29:00] have any worries?

[00:29:02] Mother: Think,

[00:29:09] Mother: Yeah. This is

[00:29:17] Mother: What, daddy, can you say

[00:29:20] Presiding Member: Your son? Yeah. Okay. I'm gonna ask your son some questions in a, in a few minutes and I'm gonna ask your daughter some questions as well, and your And your husband. Okay?

[00:29:32] Mother: Yeah. But

[00:29:32] Presiding Member: I just wanted to check with you first in case there was ? were any concerns or worries that you have.

1. The appellant's assertion that the content of the questions asked by the Tribunal of the Mother was inappropriate given her diagnosis of advanced Alzheimer's disease is unsupported by expert evidence. The questions asked of the Mother demonstrate that the Tribunal used simple language. The sound recording reveals that the members spoke slowly, used a respectful tone and there were significant pauses between the questions asked and the Mother's responses. We reject the contention that the Tribunal questioned the Mother in a manner which was procedurally unfair given the extent of her cognitive impairment.
2. In the alternative formulation of this ground, the appellant contends that the Tribunal denied the Mother procedural fairness by failing to probe her answers to its questions about whether she held any concerns about the Son's conduct as substitute decision-maker. For example, the appellant contends that given the Mother's equivocal response to its question (at 00:27:45 minutes) "Do you think [the Son] is a good person to look after your money for you, make sure your bills are paid?", the Tribunal was obliged to probe that response. The appellant asserts that the Tribunal stopped asking further questions on the pretext that the Mother was tired.
3. While not put in these terms, the appellant in effect argues that the Tribunal failed as required by s 38(6)(a) of the NCAT Act, "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". She contends correctly that the Son's management of the Mother's personal and financial affairs was a key issue raised by the Application. However, it does not follow the Tribunal was required by s 38(6)(a) of the NCAT Act to probe the Mother's responses to its questions asked about those issues. It is apparent, that the Tribunal concluded that no useful purpose would be served by exploring the Mother's responses to its questions about this issue. Given the nature of her responses together with the medical evidence, that conclusion was one open to the Tribunal. We note that the appellant did not suggest that the Tribunal ask further questions of the Mother concerning the Son's management of her affairs, or any other issue. Indeed, shortly after asking the questions set out above, the Tribunal invited the parties to comment on its view that she ought be excused from the hearing. All agreed this was appropriate: Reasons at [8].

Ground 3: Was the Tribunal biased against the appellant?

1. The appellant contends that the Tribunal was biased against her as evidenced by its conduct in:

(1) failing to properly evaluate her evidence about the Son's mismanagement of the Mother's financial affairs. The appellant claims that from the outset the Tribunal had formed a favourable opinion of the Son, and thereafter its consideration of his evidence suffered from "confirmation bias";

(2) giving her less time to speak than the Son and the other parties;

(3) permitting the entourage to attend the review hearing and refusing to admit the video recording of the appellant's conversations with the Mother.

1. As part of its obligation to afford each party procedural fairness (NCAT Act, s 38(2)), the Tribunal was required to determine the Applications and any issue arising in their determination without bias.
2. An allegation of actual bias must be distinctly made and clearly proven. Cogent evidence is required to support a finding of actual bias, and such finding should not be made lightly: Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98 at [68]- [74]; South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16 at [97].
3. Where actual bias in the form of prejudgment is alleged, it is necessary to establish that the decision-maker was "so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented": Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17 at [72],[176]. The test of actual bias in the form of prejudgment requires an assessment of the state of mind of the decision-maker in question: Michael Wilson & Partners Limited v Nicholls (2011) 244 CLR 427; [2011] HCA 48 at [33]. Actual bias is not confined to an intentional state of mind and may be subconscious, provided it is real: Bilgin v Minister for Immigration and Multicultural Affairs [1997] FCA 1022; (1997) 149 ALR 281 at 289-290.

1. It falls to the appellant to demonstrate that the Tribunal failed to deal with the Applications impartially.

Contention 1: the Tribunal failed to properly evaluate her evidence about the Son's mismanagement of the Mother's financial affairs

1. The appellant argues that it was evident from the outset that the Tribunal had formed a favourable opinion of the Son, and this caused its consideration of his evidence to suffer from "confirmation bias". We understand the appellant to use this term to mean "the tendency to seek or favour new information which supports one's existing theories or beliefs, while avoiding or rejecting that which disrupts them".[1]
2. The appellant gives as an example of her claim that the Tribunal had formed a favourable opinion of the Son, and then sought to elicit evidence that supported that opinion, the following exchanges:

"Exchange with the Sister

[00:48:40] Presiding Member: Mm-hmm. Mm-hmm. Okay. And one last question while I'm talking to you. Um, do you think your brother, who's the, you know, legally speaking, is the one that can make these types of big decisions about where your mom lives and her health.

[00:48:56] Presiding Member: Do you think he's doing a good job? Or have you got any worries about the decisions [00:49:00] he's making?

[00:49:00] Sister: No, I don't worry.

Exchange with the Father

[01:53:12] Presiding Member: Alright, thank you. Um, I don't have any more questions for you currently, [Father] is there anything that you would like to say about how your son is managing [the Mother's] financial, financial situation or finances? Are you satisfied that he's doing a good job or do you have any worries?

[01:53:34] Father: I have none. None at all. After all, that's his expertise.

[01:53:40] Father: He's in a position where he is advising those in the hotel industry where they should put their money.

[01:53:47] Father: Mm-hmm.

[01:53:49] Father: That's the job. They do their job. And I think the, the. Uh, the skillset that is needed at the [01:54:00] moment is someone who can manage, uh, uh, [the Mother's] finances diligently, conservatively, not just friendly.

[01:54:12] Father: Mm-hmm. But it, it'll last a lifetime. Mm-hmm. And it's easy to spend the money, but he, I think [the Son] is conservative in his approach to expenditure. Mm-hmm. And he has the skillset to meet what [the Mother] wants that person. So it's very rare that at this moment he, in my view, is imminently qualified to do what [the Mother] wants him to do.

[01:54:48] Father: Even though he is looking after her financial interests with great care and diligence. That's money go on a day, day to day basis. [01:55:00] As against that, I don't want to make any adverse comments about [the appellant] that I believe unfortunately, is [the appellant's], because we weak point. If you analyze the strengths and weaknesses, I would save on [the appellant's] track body in managing finances."

1. There are several problems with the appellant's contention that the Tribunal held a favourable opinion of the Son from the outset and from then on sought to elicit evidence favourable to the Son:

(1) The appellant has not taken us to any evidence, which might suggest that the Tribunal held a favourable opinion of the Son from the outset. At its highest, that assertion is an expression of the appellant's belief.

(2) But even if that factual assertion were to be accepted, the questions asked by the Tribunal of the Sister and the Father referred to above - whether in their opinion the Son was or was not doing "a good job" in managing the Mother's finances - do not establish that the reason the Tribunal asked those questions was to elicit evidence favourable to the Son. If it is suggested that it was inappropriate for the Tribunal to ask members of the Mother's immediate family whether in their opinion the Son was mismanaging the Mother's financial affairs, we are unable to agree.

(3) The assertion that the Tribunal failed to properly evaluate the appellant's claims about the Son's management of the Mother's financial affairs is not supported by the Reasons: see [92]-[95].

Contention 2: The Tribunal gave the appellant less time to speak than the Son and the other parties

1. When asked to comment on our assessment that the transcript of the review hearing revealed that the appellant appeared to have given more time to speak than any other party, the appellant said she had not reviewed the transcript to determine the proportion of hearing time given to each party. She said it felt as if she had significantly less time to speak than the Son and the Father.
2. The appellant's assertion that she was given less time to speak than the Son and the other parties is not established.

Contention 3: The decisions to permit the entourage to attend the review hearing and to refuse to admit the video recording of the appellant's conversations with the Mother demonstrate bias in favour of the Son

1. The appellant contends that these decisions were "legally unreasonable", in that they lacked "an evident and intelligible justification", citing Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 at [75], [76] (Li) and demonstrate that the Tribunal was biased in favour of the Son. The basis for the assertion that each decision lacked an evident and intelligible justification is unclear. In any event, the authorities make clear that disagreement with the reasoning or the decision made by a decision-maker does not provide a basis for an assertion of actual bias: see, for example, Mohareb v Kelso (No 2) [2018] NSWCA 246 at [15]; Mohareb v Saratoga Marine Pty Ltd [2020] NSWCA 235 at [44]; Feldman v Nationwide News Pty Ltd (2020) 103 NSWLR 307; [2020] NSWCA 260 at [43].

Ground 4: Did the Tribunal fail to give adequate reasons for its decision to decline to exercise the discretion to review the operation and effect of the EPoA

1. The appellant contends that the Tribunal failed to give adequate reasons for its decision to decline to exercise the discretion conferred by s 36(1) of the PoA Act to review the operation and effect of the EPoA. She asserts that the Reasons failed to disclose how the Tribunal arrived at its decision and suffered from a "missing middle".
2. The appellant contends that despite saying it intended to adopt the approach endorsed by Slattery J in Parker v Higgins [2012] NSWSC 1516 of undertaking a "general survey" of the material she had submitted in support of the Applications, the Tribunal failed to refer to that material, or the facts of the case. She asserts that the Tribunal failed to engage with the central issue raised by that material, the Son's alleged failure to exercise his authority as attorney in a manner consistent with his fiduciary obligations.
3. The Son and the Father disagree. They contend that it was evident from the Reasons how the Tribunal arrived at its decision to decline to review the operation and effect of the EPoA. In short, after surveying the material filed by the appellant it concluded that that material did not support the appellant's claim that the Son had been mismanaging the Mother's financial affairs.

Legal principles: obligation to give adequate reasons

1. The Tribunal was required to give all parties a written statement of reasons for its decision to decline to exercise the discretion conferred by s 36(1) of the PoA Act to review the operation and effect of the EPoA: NCAT Act, Sch 6, cl 11(1). The Tribunal was required to include in that statement, the matters referred to in s 62(3) of the NCAT Act: Sch 6, cl 11(3).
2. Section 62(3) of the NCAT Act states that a written statement of reasons must set out the following: (a) the findings on material questions of fact, referring to the evidence or other material on which those findings were based, (b) the Tribunal's understanding of the applicable law, and (c) the reasoning processes that led the Tribunal to the conclusions it made.
3. In New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231 (Orr), Bell P (as the Chief Justice then was), in considering the nature of the Tribunal's obligation to give reasons, said at [66] that the function of an appeal court in the context of appellate review is "to determine not the optimal level of detail required in reasons for a decision but rather the minimum acceptable standard", citing Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 at [48]. Referring to the statement made by Basten JA in Resource Pacific Pty Ltd v Wilkinson at [48] that "[t]ransparency in decision-making is an important value, but it is not cost free, and may involve separate parameters of quantity and quality", Bell P said at [67] the "identification of separate parameters of quantity and quality is, with respect, a useful one".
4. At [70], Bell P went on to state that the "sheer volume of work undertaken by tribunals is such that a perhaps more relaxed standard of review of reasons with corresponding compensation for linguistic infelicities is appropriate than may be the case when an appellate court is hearing an appeal from another court". Bell P, however, acknowledged that there are "certain minimum characteristics that a Tribunal's reasons must possess" which, in relation to NCAT, are supplied by s 62(3) of the NCAT Act. He stated at [72] that while s 62(3) of the NCAT Act provides a "useful starting point, it still leaves for consideration the question as to the quality and detail of the reasoning process that must be exposed".

The reasons for declining to exercise the discretion to review the EPoA

1. At [80], Tribunal found that the appellant was an "interested person" and therefore entitled to apply to NCAT for review of the EPoA: PoA Act, s 35. At [75], [77], [78], [79] the Tribunal set out the statutory provisions which govern its power to review the operation and effect of the EPoA. These include ss 36(1)-(2) of the PoA Act, which for completeness we set out in full below:

36 Interested persons may apply for review

(1) Tribunal may review making or operation and effect of power A review tribunal may, on the application of an interested person, decide to review the making, revocation or the operation and effect of a reviewable power of attorney or not to carry out such a review.

(2) As a consequence of reviewing the making, revocation or operation and effect of a reviewable power of attorney, a review tribunal may decide whether or not to make an order under this section.

1. At [81], the Tribunal set out the frequently quoted passage from Parker v Higgins at [80], in which Slattery J explained the nature of the review required to be undertaken by a review Tribunal (the NSW Supreme Court and NCAT), in deciding whether to undertake a "s 36 review":

"[O]n an application for s 36 review such as this the Court must first exercise a discretion under Powers of Attorney Act, s 36(1) to decide whether or not to conduct a s 36 review. In my view the Court does not have to conduct a full review of all documents associated with the operation of the subject power of attorney to do this. Something short of a full review must be able to justify the exercise of the s 36(1) discretion as to whether or not the Court should conduct a full s 36 review. In the circumstances of this case the Court can glean sufficient information to exercise the s 36(1) discretion by undertaking a general survey of what [the applicant] has produced."

Emphasis added

1. At [82], the Tribunal said that, in reaching its decision about whether to conduct a "full review" of the operation and effect of the EPoA, it first conducted a general survey of the written material provided by the appellant and the Son, and considered the oral evidence each gave at the review hearing. The Tribunal said it considered, in particular, the evidence concerning how the Mother's "finances have been and were being managed by [the Son], and whether he is fulfilling his responsibilities as her attorney".
2. At [83]-[88], the Tribunal summarised the explanation given by the Son about the Mother's financial position and his actions in managing her finances, which he had been doing since around 2020:

(1) His parents jointly own a home in the Blue Mountains and an apartment on Sydney's lower north shore. The plan is for the Father to move into the apartment and to sell the Blue Mountains property: at [83].

(2) The costs associated with the upkeep of the two properties were shared between his parents. However, since the Mother moved to aged care the Father is responsible for paying all of the utility and other household bills: at [84].

(3) The Mother has two bank accounts, one holds about $110,000, the other $4,000. Her income consists of a pension, a yearly payment from a superannuation fund. Before the Mother moved into aged care, the Father used her bank card to pay for groceries etc. The Son and Father review any claimed expenses on a monthly basis: at [85]. In support, the Son tendered copies of statements issued by the Mother's banks and superannuation fund: at [86].

(4) The Facility charges the Mother daily fees of $63 (for care), $28 (means tested care), and $120 (for accommodation, in lieu of payment of a Refundable Accommodation Deposit (RAD)). The Son is in the process of discussing with the Father selling the family home so that the Mother's share of the proceeds of the sale can be put towards the RAD: at [87].

(5) The Son tendered a document he had prepared of the Mother's income and expenditure for the period, September 2023 to February 2025. He claimed he regularly updates that document and goes through it with the Father. He has tried talking to the Mother about her finances and keeps a Post-it note of her bank balance in her room, should she ask for it: at [88].

1. At [89], the Tribunal recorded the Son's claim that he has "always fulfilled his obligations as his mother's attorney, to manage her money in her best interests" and "remains willing to continue to do so".
2. At [90], the Tribunal recorded the Father's statement that he has "no concerns about the manner in which [the Son] is managing [the Mother's] finances". The Father referred to the Son's "professional expertise in managing money", and he is confident that he "knows what he is doing". The Father "believes it is important that money is managed diligently and conservatively, so it will last her lifetime".
3. At [91], the Tribunal recorded that the Sister held no concerns about the Son's management of the Mother's finances.
4. At [92], [93], [94], and [95], the Tribunal went on to record the appellant's submissions about the Son's alleged management of the Mother's finances, which for completeness we set out in full:

"92 Similarly to the issues raised in relation to the June 2018 EG appointment, in her written submissions [the appellant] made a number of assertions in relation to [the Son's] conduct as their mother's attorney. These relate to the manner in which [the Mother's] funds have been deployed to meet her past and present care needs. [The appellant] expressed concern that [the Son] has not acted in their mother's best financial and personal interests. While we do not detail all of those concerns here, we considered each of them and whether there was evidence to support them.

93 At the hearing, [the appellant] said that [the Son] has not fully considered alternative methods of financing [the Mother's] services, which could ensure she receives additional services and/or can be appropriately supported at home rather than in a residential aged care facility. [The appellant] also said that when [the Mother] was living at home, she encouraged the engagement of additional services, such as physiotherapy, but that [the Son] prevented this. [The appellant] noted that [the Mother] has some assets and funds available, but said she believes [the Son] has made decisions based on cheaper options for her care, rather than based on her needs.

94 A particular issue raised by [the appellant] concerned [the Mother and Father's] apartment in [lower Noth Shore], which she said could have been rented out after [the Sister] moved to [the inner west], to generate some income which could then have been used to fund [the Mother's] care.

95 [The appellant] also said that she has been prevented from accessing information about how her mother's finances are being expended, and believes that there should be more transparency, noting the obligation of attorneys to keep proper financial records. She said she thought [the Mother] previously also had a [name ommitted] bank account, and money had been withdrawn from that account in 2019 and put in a safe in her home in [the Blue Mountains]. She said [the Mother] has asked her about that money, as well as about her jewellery, which is also in the safe. [The Son] then confirmed that there is $5,000 in cash in a safe in the [Blue Mountains] house."

1. At [92], the Tribunal returned to the appellant's central concern, the decision to move the Mother to aged care which it had discussed at [23]-[24], [46]-[62]. At [69], the Tribunal said:

"69 While [the appellant] raised some concerns about [the Mother's] welfare and interests, the preponderance of evidence provided to the Tribunal was to the effect that she has been and continues to be well supported, first at home and now in the [residential aged care facility]. The evidence from [the Son], [the Father] and [the Sister] was that the decision that [the Mother] should move into that facility was made after the significant efforts to support her at home were no longer sufficient to meet her care needs. We note, in particular, [the Father's] evidence that due to his age and own health, he was unable to properly to care for [the Mother], even with professional support, due to the severity of her condition. This was confirmed in the various medical reports and the report from [the social worker]."

1. At [96], the Tribunal said that having reviewed the submissions and evidence provided, it was not satisfied that there was a need to conduct a full review of the operation and effect of the EPoA. That Tribunal said that decision was based on the following findings:

(1) that the Son "is fulfilling his responsibilities to [the Mother] as her appointed attorney, to act in her best interests by ensuring that financial arrangements are in place for her ongoing accommodation and care": at [96];

(2) that the Mother is "appropriately accommodated in [the Facility], and is receiving services which meet her care needs": at [69], [96];

(3) that there was "no evidence to suggest that [the Mother's] finances are being used for anything other than her accommodation, services and other daily needs": at [96];

(4) that the Son maintains a system to account for the Mother's income and expenditure, and "to ensure she is able to access information about her financial situation should she wish": at [97];

(5) that the records kept by the Son about the Mother's income and expenditure are not regularly provided to [the Mother], but this does not mean, as alleged by the appellant, that the Son "is in breach of his fiduciary duties to [the Mother]": at [97].

1. The appellant does not challenge the Tribunal's decision to adopt the approach approved by Slattery J Parker v Higgins of conducting "something short of a full review", in deciding whether to exercise the discretion conferred by s 36(1) of the PA Act. Rather she contends that the Tribunal failed to conduct that review. This raises a separate and distinct issue to the appellant's contention that the Tribunal failed to give adequate reasons for its decision to decline to exercise the discretion to "conduct a full s 36 review". Nonetheless we will address that issue.
2. After considering the key submissions made by the parties, in particular, the evidence about how the Mother's "finances have been and were being managed by [the Son], and whether he is fulfilling his responsibilities as her attorney", the Tribunal made the five factual findings listed at [110] above. It is clear from the Reasons that the decision not to exercise the discretion to review the EPoA was based on those findings. The argument that the Tribunal failed, as required by s 62(3)(c) of the NCAT Act, to set out the reasoning processes that led it to its ultimate decision to decline to exercise the discretion to conduct a "full review" is not supported by a fair reading of the Reasons.
3. Nor does the appellant's alternative formulation of this ground, that the Tribunal failed to deal with her submissions and supporting material, find support in the Reasons.
4. Contrary to the appellant's contention, the Tribunal was not required to deal with each submission she made, only those of "substance": see for example, Australian Postal Corporation v Hughes (2009) 111 ALD 579; [2009] FCA 1057, at [65].
5. Consistent with the approach approved by Slattery J of undertaking "something short of a full review", the Tribunal did not address in the Reasons each complaint made by the appellant about the Son, including those relating to his actions as attorney. However, the Tribunal dealt with the substance of those complaints, which as the Tribunal acknowledged was inextricably linked with the appellant's complaint about the Son's decision to move the Mother to residential aged care. As noted at [109] above, the Tribunal rejected the appellant's submission that the Mother was not well cared for in aged care and found that the decision to place her in care was made "after the significant efforts to support her at home were no longer sufficient to meet her care needs". Having made that finding whether, as the appellant submitted, the Son had "fully considered alternative methods of financing [the Mother's] services" to enable her to remain at home was not relevant. It was not the role of the Tribunal to decide which accommodation option would best serve the Mother's welfare and interests, a matter about which reasonable minds might differ.

Ground 5: In reviewing the appointment of the Son as the Mother's enduring guardian did the Tribunal fail to consider the principle stated in s 4(e) of the Guardianship Act?

1. The appellant contends that in reviewing the EGA, the Tribunal failed to consider the principle stated in s 4(e) of the Guardianship Act, "the importance of preserving the family relationships and the cultural and linguistic environments of [people with disability]". She asserts that there was no evidence before the Tribunal that either the Son or the aged care facility where the Mother now resides "actively provided [the Mother] with ... religious services, observing cultural traditional practices or having recourse to pastoral care or religiously appropriate meals". It follows, she contends, that in deciding to confirm the Son's appointment as enduring guardian, the Tribunal failed to consider the principle stated in s 4(e) of the Guardianship Act.
2. The Father and the Son disagree.

1. As the Father and the Son point out, contrary to the appellant's claim, the Reasons reveal that the Tribunal considered the principle stated in s 4(e) of the Guardianship Act.
2. At [28], the Tribunal referred to the appellant's stated reasons for seeking review of the Son's appointment as enduring guardian, which included that decisions made by the Son "[have] resulted in a denial of [the Mother's] cultural and religious connections".
3. At [49], the Tribunal referred to the appellant's claim that she has been investigating the possibility of a family member living in Sri Lanka coming to Australia to provide care to both parents, which in her view was both "feasible, and culturally appropriate".
4. At [62],[63], the Tribunal returned to the appellant's argument that the decision to place the Mother in residential aged care demonstrates that the Son failed to consider the impact of that decision on the Mother's "cultural and religious connections":

"63 [The appellant] also said that she feels [the Mother] is being denied her cultural and religious connections in the aged care facility. She said that [the Mother] has always been very spiritual and enjoys Buddhist chanting. [The appellant] told us that while she uses her phone to play Buddhist chanting to her mother when she visits, she does not believe [the Mother's] cultural and religious needs are being sufficiently met.

64 [The Son] denied this was the case. He said that there have been efforts made to ensure [the Mother] is surrounded by photographs and other personal items of cultural and family significance in her room in the aged care facility. He said that [the Mother] has access to music, which is played to her, and she enjoys singing. [The Son] said he believes that the core of [the Mother's] cultural needs is her connection to family, and she is happiest when she has contact with her family, including her children and grandchildren."

1. At [72], in the context of giving reasons for its decision to confirm the Son's appointment as enduring guardian, the Tribunal returned to the s 4(e) (Guardianship Act) issue and said:

"72 We did not consider there to be sufficient evidence that [the Mother's] cultural environment is inappropriate to warrant interference with the decision-making arrangements she put in place when she signed the June 2018 EG appointment. We encourage all members of [the Mother's] family to continue to support her in her cultural and religious practices, and to make ongoing efforts to resolve the disputes between them without distress to her."

[Our emphasis]

1. The Reasons provide no support for the appellant's argument that the Tribunal failed to consider the principle stated in s 4(e). This ground is, in truth, an expression of disagreement with the conclusion reached by the Tribunal that there was insufficient evidence that the Mothers' cultural environment is inappropriate so as "to warrant interference with the decision-making arrangements she put in place when she signed the June 2018 EG appointment".
2. This ground must be rejected.

Decision to refuse to admit the recording of conversations between the appellant and the Mother

1. The appellant contends that the decision to refuse to admit the recordings of conversations between her and the Mother (the Recording), was procedurally unfair. In addition, she contends that decision was "legally unreasonable", citing Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 (Li) at [75], [76].
2. The appellant said that in the review hearing she told the Tribunal that on several occasions she contacted the NCAT registry and was informed that she was not permitted to file the Recording in advance of the hearing but could seek leave to have it admitted at the hearing. She contends the Tribunal ignored that information and refused to admit the Recording on the ground that to do so would necessitate an adjournment.
3. The Son disagrees that the decision not to admit the Recording was procedurally unfair. He points out that on 3 March 2025 the Tribunal directed the appellant to file (give to the Tribunal) and serve (give to the other parties) all material on which she sought to rely by 17 March 2025. She did not give the other parties a copy of the Recording or inform them of her intention to seek to rely on it in the review hearing.

1. The decision to refuse to admit the Recording is an interlocutory decision. Therefore, the appellant requires leave to appeal from that decision: NCAT Act, definition of "interlocutory decision" in s 4, 80(2)(a).
2. In Houda v Seraphim [2025] NSWCATAP 135 at [31]- [35], an NCAT Appeal Panel summarised the principles which govern the exercise of the discretion to grant leave to appeal an interlocutory decision. These principles include:

(1) leave to appeal should only be granted when there are substantial reasons to warrant leave being granted. These reasons include the presence of an error of principle in the decision under appeal, resulting in substantial injustice;

(2) it is only if the decision is affected by sufficient doubt to warrant its reconsideration on appeal, that leave will be granted; and

(3) usually, it is only appropriate to grant leave where there is an issue of principle, a question of public importance or an injustice which is reasonably clear, and beyond what is merely arguable for leave to be granted.

1. At [10]-[14], the Tribunal gave these reasons for deciding to refuse to admit the Recording:

"Request to provide additional evidence

10 During the hearing, [the appellant] said that she wished to provide some digital evidence to the Tribunal, being video footage of [the Mother] at various times. [The appellant] said she thought this would be helpful, so that the Tribunal could better understand [the Mother's] perspective. [The appellant] said that she had spoken to a member of the Tribunal's Registry in advance of the hearing about providing the footage, but was advised to seek leave to do so at the hearing.

11 [The Son] objected to the Tribunal's consideration of the video evidence, saying that he had not been provided with a copy of it in advance of the hearing, and did not know what it contained or the circumstances of its recording.

12 Section 38(2) of the Civil and Administrative Act 2013 (NSW) states that the Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit. Section 38(5)(c) then states that the Tribunal is 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 proceedings.

13 We took into account these provisions, as well as the guiding principle set out in s 36(1) of the Civil and Administrative Act, which is that the Tribunal must facilitate the just, quick and cheap resolution of the real issues in the proceedings, in deciding not to accept the video evidence proposed by [the appellant]. Had we accepted the proposed evidence, the proceedings would have needed to be adjourned in order for the other parties to have an opportunity to consider it and, potentially, offer further evidence in response. We note that, in accordance with the Tribunal's direction of 3 March 2025, [the appellant] should have provided a copy of the video to the other parties by 17 March if she intended to rely on it at the hearing, whether or not a copy was also provided to the Registry at that time.

14 In addition, given that the Tribunal had already been provided with extensive written material about [the Mother] by [the appellant], and [the appellant] had the opportunity to make oral submissions at the hearing, we did not consider that the proposed video evidence would be of further assistance to our determination of the issues raised by the applications."

1. Contrary to the submission made by the appellant, as the above reasons reveal there was "an evident and intelligible justification" for the Tribunal's decision to refuse to admit the Recording. The Tribunal explained it had decided to refuse to admit the Recording because: first, to do so is likely to have resulted in an adjournment and potentially an application for leave to file further material in response to the Recording, and, second, the appellant had already provided the Tribunal with extensive written material about the Mother, and therefore the Recording would not assist in determining the issues raised by the Applications: Reasons at [13], [14].
2. Contrary to the appellant's claim, in the Reasons the Tribunal did refer to her explanation for not filing the Recording before the hearing: at [10], [13]. However, the Tribunal reasoned that the advice given by the Registry did not excuse the appellant from the requirement to give a copy of the Recording to the other parties.
3. The decision to refuse to admit the Recording does not raise an issue of principle, a question of public importance, or an injustice which is reasonably clear. Leave to appeal is refused.

1. The appellant urges us to exercise the discretion conferred by the NCAT Act, s 80(2)(b) to grant leave to appeal the decisions to confirm the appointment of the Son as the Mother's enduring guardian and to decline to review the operation and effect of the EPoA.
2. We understand the appellant to contend that leave should be granted because as she asserted in her August 2025 submissions, the Tribunal made multiple errors of fact and law. She contends that in those circumstances it would be unjust to permit the decisions under appeal to stand.
3. The Son and Father oppose the appellant being given leave to appeal. The Son points out that in the Notice of Appeal, the appellant said she was not seeking leave to appeal. Both argue that the appellant has failed to establish a sound basis for leave being granted.
4. 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. She points out that she corrected that error in the "curative statement" she filed on 30 September 2025.

1. In Collins v Urban [2014] NSWCATAP 17 (Collins), an Appeal Panel of NCAT said 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. In exercising the discretion to grant leave to appeal, the protective character of the jurisdiction exercised by the Guardianship 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. We proceed on the basis that notwithstanding what she wrote in the Notice of Appeal, the appellant is seeking leave to appeal.
2. In the curative statement, the appellant said that she seeks leave to appeal on the grounds articulated in her submissions dated 5 August 2025 and 30 August 2025. Given the numerous issues of fact and law raised in those submissions, many of which are said to raise multiple questions of law, it is difficult to discern which issues the appellant relies on in her application for leave to appeal, less still, having regard to the principles stated in Collins, how any provide a sound basis to grant leave.
3. Doing the best we can, it appears that the crux of the appellant's submission in support of her application for leave to appeal is that she was denied procedural fairness and the facts found, and conclusions reached by the Tribunal were not open on the available evidence and/or were unreasonably arrived at.
4. For the reasons given above, we reject the submission that the appellant was denied procedural fairness on the grounds identified by the appellant. As to the second basis on which the appellant seeks leave - that the facts found, and conclusions reached by the Tribunal were not open on the available evidence and/or were unreasonably arrived at - we do not accept that this has been arguably shown.
5. Neither ground raises issues of principle, questions of importance beyond the parties, or an injustice which is reasonably clear. It follows, applying the principle stated in Collins, that leave to appeal must be refused.

1. The appellant requests that the appeal be dealt with by way of a new hearing (NCAT Act, s 80(3)(a)) because of the following "new material":
2. The appellant's account of her conversation with the social worker who had prepared reports about the Mother for the purpose of the proceedings before the Tribunal;
3. The appellant's account of her conversation with the Mother's GP;
4. The email sent on 29 May 2025 to the appellant by a manager of the Facility, stating "I have instruction from [the Son] to not share any kind of financial information [about the Mother] with anyone except him";
5. Several documents relating to a Sri Lankan woman said to have been interviewed by a relative in Sri Lankan and found to be suitable to travel to Australia to care for the Mother;
6. Her recent observations of her Mother receiving poor care at the Facility.
7. The Son and the Father oppose the appeal being dealt with by way of a new hearing. They contend that the 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, as is plain from its terms, s 80(3)(b) of the NCAT Act, 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) of the NCAT Act permits the Appeal Panel to 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. In the review proceedings, the Son tendered reports prepared by a social worker dated 22 August 2024 and 8 November 2024. In those reports, the social worker said that in his opinion because of the Mother's "progressive dementia" her "significant care needs ... can no longer be met by her elderly ex-husband, as there is no 'afterhours support' in place": Reasons at [53]. In a letter addressed to the Tribunal, dated 8 November 2024 the social worker wrote "[m]y recommendations contained within the social work report have not changed". At [53], the Tribunal said that those reports appeared to have been written by the social worker to support the Mother's placement in a residential aged care facility.
2. The new evidence on which the appellant seeks to rely is an oral account of a conversation she had with the social worker after the review hearing. She claims that in that conversation the social worker said he would be willing to update his reports and to speak to the Tribunal, if requested to do so.
3. The basis upon which the social worker's preparedness to speak to the Tribunal and to update his reports warrants the exercise of the discretion to conduct a new hearing is obtuse. It is not suggested that the social worker told the appellant that he has revised his opinion. Notably, the social worker is based in the Blue Mountains and appears not to have had any contact with the Mother since she moved to residential aged care.

Appellant's account of her post-review hearing conversation with the Mother's GP

1. The appellant claims that after the review hearing she spoke with the Mother's GP who confirmed the opinion he expressed in letters written in January 2025. In those letters, the GP said that in 2019 the Mother told him she wanted to change her decision-making arrangements, and in his opinion she was capable of doing so. The appellant appears to assert that her account of that conversation warrants the exercise of the discretion to deal with the appeal by way of a new hearing because it bolsters her claim that before she lost the capacity to so, the Mother intended to appoint her as joint attorney.
2. At [43], in the context of considering that claim the Tribunal referred to the GP's opinion:

"43 [The appellant] also provided a copy of a letter from [the Mother's GP] dated 2 January 2025, which says that on 15 January 2019 [the Mother] attended the surgery and indicated she wished to change her decision-making arrangements. [The Mother's GP] expresses the view that [the Mother] was capable of doing so at that time, but notes that [the Mother's] solicitor declined to make the requested change. In a further letter, dated 21 March 2025, [the Mother's GP] says the information about [the Mother's] solicitor was given to him by [the appellant] and he has no direct knowledge of why the change was not made."

1. At [45], the Tribunal observed that while the Mother may have considered changing her enduring guardianship arrangements, she did not do so. The Tribunal found that it was unable to determine the reason the Mother did not change those arrangements but it was satisfied that it was the Mother's wish that the Son "be her sole decision-maker in June 2018, should she no longer be able to make decisions for herself".
2. At its highest the appellant's account of her conversation with the GP confirms the statements he made and the opinions he expressed in his letters dated 2 and 15 January 2025, which were before the Tribunal. It does not add to the ground on which the appellant relies upon to warrant the exercise of the discretion to deal with the appeal by way of a new hearing.

Email sent by the Facility to the appellant on 29 May 2025

1. In an email sent to the appellant on 29 May 2025, a manager of the Facility said, stating "I have instruction from [the Son] to not share any kind of financial information [about the Mother] with anyone except him".
2. The appellant contends that that email demonstrates that the Son was failing to comply with his fiduciary duty as an attorney to disclose to her information about the Mother's financial affairs.
3. At [97], the Tribunal referred to the appellant's claim that the Son was not providing her with regular information about the Mother's income and expenditure and said, "it does not necessarily follow that [the Son] is in breach of his fiduciary duties to [the Mother]".
4. The email sent by the Facility to the appellant on 29 May 2025 supports the appellant's claim that the Son is not giving her regular information about the Mother's financial affairs. However, the appellant has failed to articulate the basis for which this evidence warrants the exercise of the discretion to determine the appeal by way of a new hearing. Furthermore, she has not referred us to any authority to support her contention that the Son's fiduciary duties to the Mother required that he give the appellant details about the Mother's financial affairs

1. The appellant seeks to rely on evidence, largely in the form of identification documents about a Sri Lankan woman who had been interviewed by a relative in Sri Lanka and found to be a suitable person to care for the Mother in Australia. She argues that this evidence warrants the exercise of the discretion to deal with the appeal by way of new hearing.
2. As the Tribunal observed at [49], the Father and the Son disagree about the appellant's proposal to bring a Sri Lankan person to Australia to care for the Mother. They say this proposal is neither appropriate nor feasible. This purported new evidence at best establishes that a person has been identified, who in the opinion of a relative living in Sri Lanka is a suitable person to be engaged as the Mother's carer. This material adds little and neither strengthens the grounds of appeal, nor warrants the exercise of the discretion to deal with the appeal by way of a new hearing.

Appellant's observations of the Mother receiving poor care at the Facility

1. In the appeal, the appellant said her recent observations of the poor standard of care the Mother is receiving at the Facility, warrants the exercise of the discretion to deal with the appeal by way of new hearing. Like the evidence concerning the proposed Sri Lankan carer, this purported new evidence adds little to the evidence which was before the Tribunal. At [69], the Tribunal recorded that there was conflicting evidence about the quality of the care the Mother was receiving at the Facility but the preponderance of evidence was that the Mother "has been and continues to be well supported".

1. The proposed new evidence neither adds to, nor strengthens the grounds of appeal. That evidence individually or together, does not warrant the exercise of the discretion to deal with the appeal by way of a new hearing.

(2) The Appeal Panel declines to exercise the discretion to deal with the appeal from the decisions made by the Tribunal on 14 April 2025 by way of a new hearing.

The sister of the appellant and the first respondent. Not a party to the appeal.

I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal.

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.

[1] Oxford English Dictionary, https://www.oed.com/dictionary/confirmation-bias\_n?tab=meaning\_and\_use&tl=true#1263597520100.