ZWI v Public Guardian

Administrative review decisions

1. Since the making of the 2019 guardianship order, the Appellant has made several applications to NCAT for administrative review of decisions made by the Public Guardian and the NSW Trustee and Guardian under the Administrative Decisions Review Act 1997 (NSW).
2. In a decision made on 14 October 2019, the Tribunal dismissed an application made by the Appellant for administrative review of purported decisions made by the Public Guardian: DYH v Public Guardian [2019] NSWCATAD 211. The Tribunal pointed out that the Appellant had failed to identify the decision, said to have made by the Public Guardian, which she sought to have reviewed.
3. In a decision made on 19 October 2020, the Tribunal dismissed the Appellant's application for review of decisions made about access to the Mother, pointing out that the subject decisions had been implemented several months earlier: DYH v Public Guardian [2020] NSWCATAD 252.
4. Subsequently, the Appellant, the Husband and the Grandson applied to NCAT for review of: 1. the decision made by the Public Guardian not to adopt a proposal advanced by the Appellant that the Mother leave the family home and reside in an aged care facility (the accommodation decision) 2. the decision made by the Public Guardian that on a trial the Appellant be permitted to visit the Mother each week providing that the Mother agreed (the access decision)
5. In a decision made on 24 May 2021, the Tribunal confirmed each decision: DYH v NSW Trustee and Guardian [2021] NSWCATAD 136. In detailed reasons for that decision, with respect to the accommodation decision the Tribunal noted that: 1. the Mother received a Level 3 ACAT (Aged Care Assessment Team) funding package, that she accessed formal services including assistance with home cleaning and support in accessing the community and that she lived (at that time) with [the Sister] and [the Son] who provided her with informal support: at [37]; 2. given the Appellant's opposition to the Mother continuing to live at home, the Public Guardian had sought an independent professional opinion. In October 2020, at the request of the Public Guardian a psychiatrist assessed the Mother in the absence of the Sister and the Son. In the psychiatrist's opinion the Mother's present living arrangements were suitable and that there was no need to move her into "higher level" care: at [38] and 3. on several occasions officers of the Public Guardian had visited the Mother in her home and spoken to her by telephone with the aid of a Greek interpreter. On each occasion, the Mother consistently maintained that she does not wish to live anywhere other than her home. That was consistent with what the Mother told the psychiatrist: at [36].

July 2021 Review Decision

1. As we explain below, neither the Appellant nor the Husband was a party to the July 2021 review proceedings. Therefore, they were not entitled to bring an appeal against that decision, and we lack the power to determine the purported appeal.

Statutory framework

1. By s 32(4)(a) of the NCAT Act, the July 2021 Review Decision is an "internally appealable decision". An "internal appeal" is an appeal to the Tribunal against an "internally appealable decision". Internal appeals are required to be heard by the Tribunal constituted as an Appeal Panel: ss 27(1), 80(1) of the NCAT Act.
2. An appeal against an internally appealable decision may be made to an Appeal Panel by a "party to the proceedings in which the decision is made": s 80(1) of the NCAT Act.
3. Section 3F of the Act stipulates the parties to proceedings under the Guardianship Act. Where, as here, the proceedings consist of a review by the Tribunal of a guardianship order, s 3F(3) provides that each of the following persons is a party to those proceedings: 3F Persons who are "parties" to proceedings under this Act … (a) the person, if any, who requested the review, (b) the person the subject of the order, (c) the spouse, if any, of the person the subject of the order, if the relationship between the person and the spouse is close and continuing, (d) the person who has care of the person the subject of the order, (d1) the enduring guardian, if any, of the person the subject of the order, (e) the guardian appointed under the order, (e1) the Public Guardian, (f) any person whom the Tribunal has joined as a party under section 44 of the Civil and Administrative Tribunal Act 2013.

Was the Appellant a party to the July 2021 review proceedings?

1. In its reasons for decision, the Tribunal identified the following people as the parties to the July 2021 review proceedings: "[The Mother], the person under guardianship The Public Guardian, the guardian [The Sister] daughter and carer [The Son], son, carer and enduring guardian."
2. The Appellant was not joined as a party to the July 2021 review proceedings and therefore was not a party to those proceedings for the purpose of para (f) of s 3F(3) of the Guardianship Act. Nor does she fall within any other categories of parties listed in s 3F(3). It follows that the Appellant was not a party to the July 2021 review proceedings.

Was the Husband a party to the July 2021 review proceedings?

1. Like the Appellant, the Husband did not apply to be joined as a party to the July 2021 review proceedings. Nor did the Husband, or any other party to those proceedings, assert he was a party within the meaning of s 3F(3)(c) of the Guardianship Act: "the spouse, if any, of the person the subject of the order, if the relationship between the person and the spouse is close and continuing". Nor was the Tribunal requested to determine whether this was the case.
2. In the May 2019 proceedings, in considering whether to make or not to make a guardianship order, the Tribunal considered whether the relationship between the Husband and Mother "is close and continuing". The Tribunal did so because in deciding whether to make or not to make a guardianship order, the Tribunal was required to consider the views of the person's spouse, "if the relationship between the person and the spouse is close and continuing": s 14(2)(a)(ii) of the Guardianship Act. As is apparent ss 3F(3)(c) and 14(2)(a)(ii) of the Guardianship Act are in the same terms.
3. At [25] of its reasons for the decision given in the May 2019 proceedings (RfD May 2019), the Tribunal stated: "[The Husband] told us he came to Australia recently to check on his wife but she was in a very bad state. [The Husband] said he has been living overseas for the past 10-12 years and does not have much contact with his wife. [The Husband] said he and his wife are still validly married."
4. The Tribunal went on to find at [31] that the relationship between the Mother and the Husband was not close and continuing: "[W]e were not persuaded that [the Husband] continues to be in a close and continuing relationship with [the Mother] given he has been living overseas for more than a decade and has limited contact with her."
5. Each successive Tribunal, which has reviewed the initial or subsequent guardianship orders, has in effect adopted the finding made by the original Tribunal that the relationship between the Mother and the Husband is not close and continuing.
6. It follows that the Husband was not a party to the July 2021 review proceedings.

Conclusion

1. Neither the Appellant nor the Husband was a party to the July 2021 review proceedings. Therefore, neither have an entitlement to bring an appeal to NCAT against the July 2021 review decision. The appeal is misconceived and must be dismissed under s 55(1)(b) of the NCAT Act.

September 2021 Review Decision

1. Because the Appellant, the Husband and the Grandson requested NCAT to review the July 2021 guardianship order, by s 3F(3) of the Guardianship Act, each is a party to the subsequent September 2021 review proceedings. In addition, each had a statutory right to appeal against the September 2021 review decision on any question of law, or, with the leave of the Appeal Panel, on any other ground: s 80(2)(b) of the NCAT Act.
2. With respect to both the July 2021 Review Decision and the September 2021 Review Decision, the Appellants relied on the following grounds of appeal: "1. Question of law - The Tribunal failed to provide procedural fairness; 2. The Tribunal failed to provide Reasons for Decision of hearing on14 July 2021 - the Tribunal refused to provide the recording of the hearing, and the Reasons for Decision, as we were not parties and had been removed and disadvantaged; 3. The Tribunal had no evidence at both hearings on 14 July 2021and 2 September 2021, the NSW Trustee and Guardian made no submissions, the other parties provided no submissions, the Appellant …, provided evidence of the spouse .. as the spouse (close and continued marriage) of his wife {the Mother], who was removed as a spouse, 4. The Tribunal had no facts or submissions from any parties to make the decisions about the ineffective performance of the public guardian. 5. Question of law - the lack of evidence, submissions or facts could have affected the outcome of my case: a. That the guardianship order for [the Mother], should have varied to comply with the general principles of the Act; b. That both hearings on 14 July 2021 and 2 September 2021 lacked any supported evidence to make decisions when parties failed to present arguments; 6. Question of Law - case study BZE v NSW PUBLIC GUARDIAN-Appeal allowed by appeal panel, where question of law arises where the Tribunal fails to take into account all factors or principles prescribed by section 14 (2) of the Guardianship Act."

Failure to provide procedural fairness: grounds 1 and 2

Procedural background

1. The following is taken from the reasons for the July 2021 review decision (RfD July 2021) and the September 2021 review decision (RfD September 2021).

July 2021 review proceedings

1. At a directions hearing on 4 June 2021 attended by the Sister and the Appellant, the Tribunal explained that neither the Appellant, the Husband nor the Grandson were parties to the end-of-term review of the 2020 guardianship order, but each could apply to be joined as parties to those proceedings. The Tribunal directed: 1. any person seeking to be joined as a party to the end-of-term review is to lodge an application to be joined by 9 June 2021 2. each party to file and serve evidence and submissions on which they seek to rely, including the names of any person they propose as guardian for the Mother and material in support of the proposed appointment by 15 June 2021 3. the Appellant to bring to the attention of the Husband and the Grandson the directions made on 4 June 2021
2. On 4 June 2022, the Registrar sent each party a notice containing the above directions. On 23 June 2021, the Registrar sent the Appellant a notice containing that direction.
3. On 22 June 2021, the Registrar sent to all parties and the Appellant, notice that the end-of-term review of the 2020 guardianship order was listed for hearing on 14 July 2021. The following day the Registrar sent all parties, the Appellant, the Husband and the Grandson instructions about how to participate in that hearing, which was to be conducted by audio-visual link (AVL).
4. By 14 July 2021, neither the Appellant, the Husband nor the Grandson had lodged an application to be joined as a party to the July 2021 review proceedings, nor proposed a person to be appointed as guardian for the Mother.
5. At the commencement of the hearing on 14 July 2021, the Appellant was not in attendance. When contacted by the Tribunal by phone, the Appellant claimed that she had not been notified of, and was not prepared for, the hearing. The Tribunal invited the Appellant to participate and advised that it would delay the commencement of the hearing for 10 minutes to facilitate her attendance. In addition, the Tribunal gave the Appellant instructions on how to join the hearing by AVL. When the Appellant did not join the hearing, the Tribunal proceeded to review the 2020 guardianship order in her absence.

September 2021 review proceedings

1. The day after the Tribunal made the July 2021 guardianship order, 14 July 2021, the Appellant, the Husband and the Grandson applied under s 25(2)(a) of the Act for review of that order. In that application, the Appellant sought that the order be revoked and that she, the Husband and the Grandson be appointed as the Mother's guardians.
2. On 5 August 2021, the Tribunal made the following directions: "The Tribunal has received a request to review the guardianship order, dated 2 days prior to a hearing at which the applicant was given the opportunity to attend. On 14 July 2021, the Tribunal conducted a review of the order. Under s 25A(b) of the Guardianship Act 1987, the Tribunal may decline to review an order where it has previously conducted a review. The Tribunal will determine whether to conduct a further review as a preliminary issue at a hearing on 2 September 2021 at 9.30 a.m. Each party is directed to lodge in the Tribunal and give to each other party any submissions they wish to make regarding whether the Tribunal should exercise its discretion to review, or not to review, the guardianship order, by 20 August 2021."

Procedural fairness grounds

1. In the notice of the appeal and the written material in support of the appeal, the Appellant asserts that the Tribunal failed to provide her procedural fairness. In that material the Appellant makes a series of wide-ranging criticisms about the conduct of various parties, in particular the Public Guardian which are said to amount to a "denial of procedural fairness". From the notice of the appeal and supporting submissions, it would appear that the conduct of the Tribunal said by the Appellant to have deprived her of a reasonable opportunity to present her case is as follows: 1. NCAT's alleged actions in blocking the Appellant's email address 2. NCAT's alleged failure to advise that the hearing on 2 September 2021 was to determine the request for review of the July 2021 guardianship order 3. NCAT's failure to give to the Appellants the reasons for the July 2021 review decision.

NCAT's alleged actions in blocking the Appellant's email address

1. As best we can make out this allegation relates to the July 2021 Review Decision. As explained above, the Appellants are not entitled to bring an appeal against that decision. Nonetheless, in the interests of completeness we address that allegation.
2. In the September 2021 review proceedings, the Appellant alleged that the Tribunal "blocked" her email address, and, as a consequence she did not receive written notice of the directions issued on 4 June 2021.
3. In the RfD September 2021, the Tribunal noted that the claim made by the Appellant that NCAT had blocked her email address was inconsistent with the Appellant's email sent to the Registrar on 9 July 2021, in which she complained that that she had received insufficient notice of, and opportunity to prepare for, the hearing listed on 14 July 2021. In addition, the Tribunal noted that the claim was "unsupported by any cogent evidence". The Tribunal found the claim not proven.

Statutory framework

1. The Tribunal must observe the rules of natural justice (procedural fairness): s 38(2) of the NCAT Act. Section 38(5) of the NCAT Act imposes several obligations on the Tribunal, including 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" (emphasis added).
2. For current purposes we will assume, but not decide, that in the July 2021 review proceedings: (i) the Tribunal was required to give any person (including a non-party) whose rights or interests was likely to be adversely affected by a decision made in those proceedings an opportunity to be heard, and (ii) that the rights or interests of each appellant were likely to be adversely affected by a decision made in those proceedings.
3. In Antonio Di Liristi v NSW Public Trustee and Anor [2021] NSWSC 1347, Sacker J stated at [87] that "bound up with the obligation of the Tribunal to act in a procedurally fair manner is the suite of obligations attending the manner in which courts deal with self-represented litigants". Sackar J concluded at [90], that similar obligations apply to administrative tribunals, such as NCAT.

Consideration

1. For the reasons given by the September 2021 Tribunal summarised at [62] above, the Appellant has failed to establish that the Registrar blocked her email address. However, this does not resolve the question of whether, as a consequence of the delay in receiving written notice of the directions made on 4 June 2021, the Appellant was not given a reasonable opportunity to be heard or have her submissions considered in the July 2021 review proceedings.
2. The Registrar sent the directions made by the Tribunal on 4 June 2021 to the parties on the same day and to the Appellants on 23 June 2021. The delay in sending the 4 June 2021 directions to the Appellants appears to have been the result of an administrative oversight. Whatever the explanation, it is not apparent how that delay impeded the Appellant's opportunity to be heard in the July 2021 review proceedings. The Appellant had attended the 4 June 2021 directions hearing in which those directions were made. In addition, as evidenced by the email the Appellant sent to the Registrar on 9 July 2021, on that day she was aware that the review proceedings were listed for hearing on 14 July 2021. At the commencement of that hearing, the Tribunal contacted the Appellant and not only invited her to attend but delayed the commencement of the hearing to facilitate her attendance.
3. As explained by French CJ in Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6; 214 CLR 1 at [37], the concern of the law in terms of procedural fairness, is to "avoid practical injustice". The Appellant has failed to explain how the delay in receiving the written notice of the directions made on the 4 June 2021 caused her to be disadvantaged or denied her the opportunity to apply to be joined as a party to the July 2021 review proceedings, or to participate in those proceedings. We reject the contention that the delay in sending the notice of the directions made on 4 June 2021 resulted in the Appellant being denied procedural fairness.

NCAT's alleged failure to advise that the listing on 2 September 2021 was to determine the request for review

1. The Appellant contends that she was denied procedural fairness because she believed that the hearing on 2 September 2021 was in the nature of a directions hearing and she was not prepared to address her request for review of the July 2021 guardianship order.
2. On 5 August 2021 the Tribunal made the following directions: "The Tribunal has received a request to review the guardianship order, dated 2 days prior to a hearing at which the applicant was given the opportunity to attend. On 14 July 2021, the Tribunal conducted a review of the order. Under s 25A(b) of the Guardianship Act 1987, the Tribunal may decline to review an order where it has previously conducted a review. The Tribunal will determine whether to conduct a further review as a preliminary issue at a hearing on 2 September 2021 at 9.30 a.m. Each party is directed to lodge in the Tribunal and give to each other party any submissions they wish to make regarding whether the Tribunal should exercise its discretion to review, or not to review, the guardianship order, by 20 August 2021."
3. The following extract from the email sent by the Appellant to the Registrar on 29 August 2021 is inconsistent with the Appellant's claim that she understood the hearing on 2 September 2021 to be in the nature of a directions hearing: "There is sufficient grounds that warrant a review which the applicants will discuss with the Member on Thursday [2 September 2021], which provides that [the Mother's] circumstances will change within the next few weeks, and for these reasons the need for private guardians will satisfy all the care needs for [the Mother]."
4. There is no evidence, and nor is it asserted, that at the hearing on 2 September 2021, the Appellant raised with the Tribunal that she was mistaken about the nature of that hearing, or was unable to speak to her request for review, or the question of whether the Tribunal should exercise its discretion to refuse to review the 2020 guardianship order.
5. The directions by the Tribunal made clear that the request for review was listed for hearing on 2 September 2021. By then the Appellant was an experienced litigant having participated in multiple proceedings in the Guardianship and Administrative and Equal Opportunity Divisions of NCAT and internal appeals.
6. But even if it is accepted that the Appellant was genuinely mistaken about the nature of the hearing listed on 2 September 2021, it does not follow that the Tribunal failed as required by s 38(5)(c) of the NCAT Act, "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". That obligation requires the Tribunal to take such measures as are reasonably practicable to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered. That obligation does not extend to requiring the Tribunal to ensure that the parties avail themselves of that opportunity.
7. This ground is rejected.

Refusal to provide the Appellant with the reasons for the July 2021 guardianship order

1. The Appellant contends that the Tribunal failed to afford her procedural fairness in the September 2021 review proceedings because she not given a copy of the reasons for the July 2021 guardianship order and the sound recording of the hearing in which that order was made.
2. In an email sent on 27 August 2021, the Registrar advised the Appellant that her request for a copy of the RfD July 2021 and the sound recording, had been refused. The Registrar explained: "the Tribunal can only release reasons for the decisions and sound recording to recognised parties to the proceedings".
3. NCAT is required to give to each party to proceedings for review of a guardianship order, a written statement of the reason for decision: cl 11(1) of Sch 6 to the NCAT Act. A person who is not a party to proceedings for review of a guardianship order is not entitled to receive a written statement of reasons for a decision made in those proceedings. Nonetheless, they are entitled to inspect a "public access document", which is defined to include a record of the reasons given for decision: rr 42(1), 42(8) of the Civil and Administrative Tribunal Rules 2014 (NSW) (the Rules).
4. That entitlement is subject to several qualifications, relevantly: 1. The proceedings must be "finally determined": the Rules, r 42(2). A matter is not finally determined until such time as no further appeal rights are available, or any appeal lodged in respect of the proceedings has been determined: r 42(7). 2. There is no entitlement if disclosure of the whole or part of a public access document is otherwise prohibited by or under the NCAT Act or any other legislation or law: the r 42(5)(d). Section 101 of the Guardianship Act makes it an offence for a person to disclose any information obtained in connection with the administration or execution of that Act. Section 101 is subject to several exceptions. In addition, s 65 of the NCAT Act makes it an offence for a person, except with the consent of the Tribunal, to publish or broadcast the name of any person who appears as a witness before the Tribunal in any proceedings, to whom any proceedings in the Tribunal relate, or who is mentioned or otherwise involved in any proceedings in the Tribunal.
5. The Registrar did not give reasons for the decision to refuse to the Appellant's request for the sound recordings or the RfD July 2021. Whatever the reason, the Appellant failed to explain how, as a result of not receiving the RfD July 2021 and the sound recording, she was denied a reasonable opportunity to be heard or to have her submissions considered in the September 2021 review proceedings. We note: 1. The sole issue raised by the Appellant, the Husband and the Grandson in the request for review of the July 2021 guardianship order, was whether they should be appointed as guardians for the Mother, in substitution for the Public Guardian. 2. In reappointing the Public Guardian in July 2021, the question of the suitability of the Appellant, the Husband and/or the Grandson to perform the role of guardian for the Mother, simply did not arise. They had not proposed to the Tribunal that they be appointed guardian for the Mother. The Tribunal had no option but to reappoint the Public Guardian because no individual had been nominated to act as guardian for the Mother.
6. This was not a case where a proposed guardian was not given the opportunity to respond to a finding made by a Tribunal that they did not meet the criteria for appointment in s 17(1) of the Guardianship Act, or to some other adverse finding made about them. Arguably, if the proposed guardian was not informed of the substance of those findings and given the opportunity to respond to them, that might potentially amount to a denial of procedural fairness.
7. The contention that the Appellant was denied procedural fairness because she was not given the reasons for the sound recording of the proceedings and the RfD July 2021, is rejected.

Grounds 3, 4, 5: lack of evidence, no evidence

1. These grounds overlap. The Appellant appears to assert that in the September 2021 review proceedings, the Tribunal was obliged but failed to consider the "ineffective performance" of the Public Guardian and had "no evidence" to support a finding that the Public Guardian should continue to act as guardian for the Mother.
2. Before considering these grounds, it is useful to set out the statutory provisions contained in Division 3 of Part 4 of the Guardianship Act which govern the Tribunal's power to appoint a guardian.
3. Where the Tribunal decides to make a guardianship order, it must appoint a person(s) who is aged 18 years or more as the guardian of the person under guardianship: s 16(1)(a) of the Guardianship Act.
4. Where, as in this case, the Tribunal decides to make a continuing, as opposed to a temporary, guardianship order, s 15(3) of the Guardianship Act instructs that the Tribunal must not appoint the Public Guardian where another person can be appointed as the guardian: 15 Restrictions on Tribunal's power to make guardianship orders ... (3) A continuing guardianship order appointing the Public Guardian as the guardian of a person under guardianship shall not be made in circumstances in which such an order can be made appointing some other person as the guardian of the person.
5. Before appointing a person to act as the guardian of the person under guardianship, the Tribunal must satisfy itself that the proposed guardian satisfies each of the three matters listed in s 17(1) of the Guardianship Act: 17 Guardians (1) A person shall not be appointed as the guardian of a person under guardianship unless the Tribunal is satisfied that: (a) the personality of the proposed guardian is generally compatible with that of the person under guardianship, (b) there is no undue conflict between the interests (particularly, the financial interests) of the proposed guardian and those of the person under guardianship, and (c) the proposed guardian is both willing and able to exercise the functions conferred or imposed by the proposed guardianship order.
6. Section 17(1) does not apply to the appointment of the Public Guardian: s 17(2) of the Guardianship Act.
7. Section 4 imposes a duty on anyone exercising functions under the Guardianship Act, including the Tribunal, the Public Guardian and any appointed guardian, to observe the principles in s 4 of that Act.

Consideration

1. The Tribunal was not required, as the Appellant contends, to consider or decide whether the Public Guardian was or was not effective in performing its role as guardian for the Mother. As we explain below, in circumstances where none of the proposed guardians provided material which would have enabled the September 2021 Tribunal to evaluate whether they met the criteria for appointment in s 17(1) of the Guardianship Act, the issue of whether the Public Guardian was ineffective in the discharge of its role as guardian simply did not arise.
2. Grounds 3, 4 and 5 are misconceived.

Ground 6 "Question of law - … BZE v NSW Public Guardian"

1. In this ground, the Appellant appears to contend that in exercising the discretion to refuse to review the July 2021 guardianship order, the Tribunal failed as required, to observe the principles in s 4 of the Guardianship Act. The Appellant appears to contend that the Tribunal was obliged but failed to take into account a "mandatory consideration", namely the alleged poor decisions made by the Public Guardian in relation to the Mother.
2. In support of this ground the Appellant cites BZE v NSW Public Guardian [2015] NSWCATAP 64. That case did not involve a request for review of a guardianship order. Rather it concerned an appeal from a decision made by the Tribunal to make a guardianship order for the subject person. In that case, the Appeal Panel found that in exercising the power to make a guardianship order the Tribunal failed to take into account a mandatory consideration under s 14(2), namely whether services, including decisions about access, could be provided without the need for making a guardianship order together with the principles in s 4(b) and (c): BZE v NSW Public Guardian [2015] NSWCATAP 64 at [23].
3. The premise on which this ground is based that the Tribunal was required to take into the history of decisions made by the Public Guardian, is not established. This ground of appeal must be rejected.

Proper construction of section 25A of the Guardianship Act

1. While not raised by any of the parties to the appeal, as we explain below, in exercising the power to refuse the request to review the July 2021 guardianship order, the Tribunal misconstrued s 25A of the Guardianship Act, specifically the meaning of the term "the order".

Statutory framework

1. Contained in Div 3 of Pt 3 ("Guardianship orders"), s 14 of the Guardianship Act gives the Tribunal authority to make or to decline to make a guardianship order. Section 14(1) permits the Tribunal to make a guardianship order, "if, after conducting a hearing into any application made to it for a guardianship order in respect of a person, the Tribunal is satisfied that the person is 'a person in need of a guardian'". A person in need of a guardian is defined by s 3 of the Guardianship Act to mean "a person who, because of a disability, is totally or partially incapable of managing his or her person". In considering whether to make or not to make a guardianship order the Tribunal is required to have regard to the factors listed in paragraphs (a), (b), (c) and (d) of s 14(2).
2. Section 16 requires the Tribunal in the guardianship order to specify, among other things, whether the order is continuing or temporary: s 16(1)(b) of the Guardianship Act.
3. Section 18 sets the maximum period for which a temporary and continuing guardianship order may be made and distinguishes between "initial" and "renewed" orders: 18 Term of guardianship orders (1) A continuing guardianship order has effect - (a) in the case of an initial order - for such period (not exceeding 1 year from the date when it was made) as the Tribunal may specify in the order, or (b) in the case of an order that is renewed - for such period (not exceeding 3 years from the date when it was renewed) as the Tribunal may specify in the order. (1A) Despite subsection (1), the Tribunal may specify, in a continuing guardianship order, that the order has effect for a period not exceeding - (a) in the case of an initial order - 3 years, and (b) in the case of an order that is renewed - 5 years, from the date on which it was made. (1B) Subsection (1A) applies in relation to a guardianship order only if the Tribunal is satisfied that - (a) the person the subject of the order has permanent disabilities, and (b) it is unlikely that the person will become capable of managing his or her person, and (c) there is a need for an order of longer duration than the relevant period specified in subsection (1). (2) A temporary guardianship order has effect - (a) in the case of an initial order - for such period (not exceeding 30 days from the date when it was made) as the Tribunal may specify in the order, or (b) in the case of an order that is renewed - for such period (not exceeding 30 days from the date when it was renewed) as the Tribunal may specify in the order. (3) A temporary guardianship order may be renewed only once.
4. Contained in Division 4 of Pt 3 of the Guardianship Act ("Assessment and review of guardianship orders"), ss 25 and 25A state: 25 Review of guardianship orders (1) The Tribunal may, on its own motion, review any guardianship order. (2) The Tribunal must review each guardianship order - (a) at the request of any person entitled to request a review of the order, and (b) at the expiration of the period for which the order has effect. … 25A Requested review not required in certain cases Despite section 25 (2)(a), the Tribunal may refuse a request to review a guardianship order if - (a) in the opinion of the Tribunal, the request does not disclose grounds that warrant a review, or (b) the Tribunal has previously reviewed the order.
5. Section 25B states that the guardian, the person under guardianship, the Public Guardian, and any other person who, in the opinion of the Tribunal, has "a genuine concern for the welfare of the person under guardianship" are entitled to request a review of a guardianship order.
6. Section 25C sets out the orders that may be made by the Tribunal on reviewing a guardianship order: 25C Action on review (1) On reviewing a guardianship order under section 25(1) or (2)(a), the Tribunal may (a) vary the order, or (b) suspend or revoke the order, or (c) confirm the order, or (d) renew, or renew and vary the order. (2) On reviewing a guardianship order under section 25 (2)(b), the Tribunal may - (a) renew, or renew and vary the order, or (b) determine that the order is to lapse (and revoke the order in respect of any unexpired period for which the order is specified to have effect).

Consideration

1. The September 2021 Tribunal found that "the Tribunal has previously reviewed the order" (par (b) of s 25A) and therefore the discretion to refuse the request for review made by the Appellant, the Husband and the Grandson was enlivened: at [42]. The Tribunal apparently interpreted the words "the order" in para (b) of s 25A to mean the initial order made in May 2019. At [42], the Tribunal referred to that order having been reviewed "on four occasions", the last occasion being, two days before the request for review was lodged: at [7], [8].
2. In considering whether the "the order" in s para (b) of s 25A should be read to mean the initial order in circumstances where, as here, that order has been renewed, we rely on the following principles of statutory construction: 1. The task of statutory construction "must begin with a consideration of the [statutory] text": Federal Commissioner of Taxation v Consolidated Media Holdings (2012) 250 CLR 503; [2012] HCA 55 at [39], quoting Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41 at [47]. 2. The text of a provision must be considered in light of its context and purpose. Context includes legislative history and extrinsic materials. Understanding context has utility if, and in so far as, it assists in fixing the meaning of the statutory text: Federal Commissioner of Taxation v Consolidated Media Holdings at [39]; SAS Trustee Corporation v Miles (2018) 92 ALJR 1064 [2018] HCA 55 at [20] 3. Where the text read in context permits of more than one potential meaning, the choice between those meanings may ultimately turn on an evaluation of the relative coherence of each with the scheme of the statute and its identified objects or policies: Taylor v Owners - Strata Plan No 11564 [2014] HCA 9; (2014) 253 CLR 531 at 557 [66]; SAS Trustee Corporation v Miles at [20]. 4. It is to be presumed that a word or phrase has the same meaning throughout the Act: Norrie v NSW Registrar of Births, Deaths and Marriages [2013] NSWCA 145; Registrar of Titles (WA) v Franzon [1975] HCA 41; 132 CLR 611 at 618. 5. Definitions in an Act apply to the construction of the Act except in so far as the context or subject matter otherwise indicates or requires: s 6 of the Interpretation Act 1987 (NSW). A contrary intention may be discerned from the text or the context which may include the legislative purpose: Aussie Vic Plant Hire Pty Ltd v Esanda Finance Corporation Ltd [2008] HCA 9; 232 CLR 314 at [19]. There is no simple formula for discerning a "contrary intention": Deputy Commissioner of Taxation (NSW) v Mutton (1988) 79 ALR 509 at 512.
3. Read in context, it is apparent that the term "the order" in para (b) of s 25A is a reference to the term "a guardianship order" in the chapeau to s 25A "… the Tribunal may refuse a request to review a guardianship order" (emphasis added). The question then arises what is meant by the term "a guardianship order" as used in s 25A.
4. Section 3 of the Guardianship Act defines "guardianship order" to mean "an order referred to in section 14".
5. Section 14 of the Act states "if, after conducting a hearing into any application made to it for a guardianship order in respect of a person, the Tribunal … may make a guardianship order in respect of the person". The term "any application" is a reference to s 9 of the Act which permits an application for a guardianship order in respect of a person to be made to the Tribunal by the person, the Public Guardian, and any other person who, in the opinion of the Tribunal, has a genuine concern for the welfare of the person.
6. The term "guardianship order" is used in numerous provisions throughout the Guardianship Act. However, s 18 is the only provision in the Guardianship Act to expressly refer to an "initial order" and a "renewed order". Read in context, it is apparent that a guardianship order made under s 14 is what s 18 terms an "initial order". A "renewed order" is not an order made under s 14 because it is not an order made following a hearing, initiated by an application made under s 9. Rather it is an order made following the exercise of the power to review a guardianship order conferred on the Tribunal by Div 4 of Pt 3 of the Guardianship Act.
7. The term "guardianship order" in s 25A of the Act should not be given the meaning in s 3 of that Act for the following reasons: 1. Section 25(2)(b) requires the Tribunal to review "each guardianship order … at the expiration of the period for which the order has effect". If the term "each guardianship order" is read to mean "initial order" as that term is used in s 18 of the Act, the requirement to review would only arise at the expiration of "the period for which the [initial] order has effect". Such result would be inconsistent with the evident purpose of Div 4 of Pt 3 of the Guardianship Act, namely, to ensure that a continuing guardianship order is reviewed at the expiration of the period for which it is in effect. 2. Section 25(2)(a) requires the Tribunal to review "each guardianship order" at the request of "any person entitled to request a review of the order". The person entitled to request a review includes the guardian: s 25B(a). If "each guardianship order" is interpreted to mean the "initial order" the guardian appointed under the initial order would be entitled to request review but not a guardian appointed under a renewed order. This would lead to an "absurd" or "irrational" result (See, Legal Services Board v Gillespie-Jones [2013] HCA 35; (2013) 87 ALJR 985 at [48]). 3. On reviewing a guardianship order under s 25, the powers available to the Tribunal include to vary that order: ss 25C(1)(a), 25(2)(a). The varied order may be materially different to the initial order. For example, the Tribunal may have appointed a different guardian and/or added to or removed the functions conferred under the initial order. In addition, the varied order may be made many years after the initial order was made. It would be an absurd result, if in reviewing "a guardianship order" either at the expiration of its term (s 25(2)(a)), or on request (s 25(2)(a)), the Tribunal was restricted to reviewing the initial order in circumstances where that order had been renewed.
8. Having regard to the text, context and the purpose of ss 25 and 25A of the Guardianship Act, properly construed the term "guardianship order" means an initial guardianship order, or where that order has been renewed, or further renewed, the renewed order.
9. By interpreting the terms "guardianship order" and "the order" in s 25A to mean the initial guardianship order made in May 2019, the Tribunal incorrectly found that a Tribunal had previously reviewed the 2021 guardianship order. It was not open to the Tribunal to exercise the discretion to refuse the request to review the 2021 guardianship on the grounds that order had been reviewed.
10. We set aside the decision under appeal and will consider afresh the request made by the Appellant and the Husband to review the 2021 guardianship order.

Review of the July 2021 guardianship order

1. In exercising the power to review the July 2021 guardianship order we are obliged to have regard to the principles listed in s 4 of the Guardianship Act, which include that the "welfare and interests of [the Mother] should be given paramount consideration". In undertaking that task, we will restrict our consideration to the material that was before the Tribunal in the September 2021 review proceedings. We will return to consider whether, as the Appellant asserts, fresh evidence is now available which should be taken into account.
2. In answer to the directions made by the Tribunal on 5 August 2021, inviting the parties to make submissions and to provide evidence about the requested review, the Appellant provided submissions dated 23 August 2021 (2), 26 August 2021 and 29 August 2021. There is significant overlap between the arguments contained in those submissions.
3. In submissions dated 23 August 2021, the Appellant: 1. asserted that she was not notified of the 14 July 2021 review hearing 2. alleged that the Tribunal and the Public Guardian had blocked her email address 3. criticised the Tribunal for proceeding to conduct the review hearing listed on 14 July 2021 in her absence 4. criticised the Public Guardian for its alleged failure to "exercise any of the Orders made by the [Tribunal]" 5. stated that as a consequence of not receiving the RfD July 2021 she was disadvantaged and denied "equal opportunity".
4. In an email sent to NCAT on 26 August 2021, the Appellant repeated her criticisms of the Public Guardian, made a series of allegations about the Sister and stated that she must be removed as carer for the Mother.
5. In an email sent to NCAT on 29 August 2021, the Appellant stated that she, the Husband and the Grandson "can resume the function of the public guardian". She went on to state that as "private guardians the duties will be exercised efficiently, and with professional assistance from ACAT [Aged Care Assessment Team], other services available to [the Mother]. The [Appellant] can take her mother to medical assessments, and other necessary care assistance". Further she stated: "There is sufficient grounds that warrant a review which the applicants will discuss with the member on Thursday which provides that [the Mother's] circumstances will change within the next few weeks and for these reasons the needs for private guardians will satisfy all the care needs for '[the Mother]'."

Consideration

1. The Appellant does not dispute that the Mother is a "person in need of a guardian" as defined by s 3 of the Guardianship Act and that a guardianship order should be made in respect of the Mother. Nor does the Appellant seek the revocation of the July 2021 guardianship order. Rather she seeks that that order be varied by appointing herself, the Husband and the Grandson as guardian for the Mother.
2. As the Appellant correctly points out the Public Guardian is the guardian of "last resort". Where, as here, the Tribunal decides to make a continuing guardianship order, s 15(3) of the Guardianship Act instructs the Tribunal not to appoint the Public Guardian where another person can properly be appointed as guardian. However, this does not mean as we understand the Appellant to contend, that as a consequence, the Tribunal must appoint any person who has indicated a willingness to be appointed as guardian. As explained above, a person shall not be appointed as guardian unless the Tribunal is satisfied that the proposed guardian satisfies each of the criteria listed in s 17(1) of the Guardianship Act.
3. The material filed in support of the application for review of the July 2021 guardianship order focuses on the alleged "injustices" suffered by the Appellant in the July 2021 review proceedings, and the alleged shortcomings of the Public Guardian, in particular its decision to permit the Mother to remain living in the family home and to allow the Sister to care for the Mother. Missing from that material is any information which would enable us to assess, less still be satisfied, that the Appellant, the Husband and/or the Grandson met the criteria in s 17(1). We note: 1. None of the proposed guardians filed statements addressing their suitability for appointment. As noted by the Tribunal in the RfD September 2021 at [51], on 4 June 2021 (in the context of the July 2021 review proceedings), the Tribunal made directions requiring any person who seeks to be nominated as the Mother's guardian to provide statements addressing their suitability for appointment and their relationship with the Mother. 2. Neither the Grandson nor the Husband filed any material which might support a finding that as at 3 September 2021, they were willing to undertake the role of guardian for the Mother, either alone, or together with the Appellant. Neither the Grandson nor the Husband participated in the July 2021 or the September 2021 review proceedings. 3. In the 2019 guardianship proceedings where the initial guardianship order was made, the Tribunal decided not to appoint the then 82-year-old Husband as the Mother's guardian, reasoning that it could not be satisfied that he was able to exercise the functions conferred by the guardianship order s 17(1)(c). The Tribunal noted that he was then living permanently in Cyprus and had his own health problems: at [50]. In addition, the Tribunal concluded that there appeared to be a conflict between his interests and those of the Mother given that the Husband apparently wanted to sell his 50% share of the family home where the Mother was living. While this Appeal Panel is not bound by those findings, nonetheless, without some evidence addressing those concerns, it is difficult to see how this Appeal Panel could be positively satisfied that the Husband met the criteria in s 17(1)(b). 4. As noted by the Tribunal in the RfD September 2021 at [59], none of the proposed guardians provided material addressing the type of issues which, given the background to the review request, might reasonably be expected to arise.
4. If the review of the July 2021 guardianship order were to proceed, the sole issue to be determined would be whether the Appellant, the Husband and/or the Grandson met the requirements for appointment stipulated by s 17 of the Guardianship Act. In circumstances where the material filed in support of the review focuses on the alleged lack of procedural fairness afforded to the Appellant in the July 2021 proceedings, where the proposed guardians have failed to provide any material which would enable the Tribunal (or this Appeal Panel) to decide whether they met the criteria for appointment, we find the request does not disclose grounds that warrant a review of the July 2021 guardianship order.
5. Given our finding that para (b) of s 25A of the Guardianship Act is satisfied, the discretion to refuse the request made by the Appellant, the Husband and the Grandson to review the July 2021 guardianship order may be exercised.
6. In considering whether to exercise that discretion we acknowledge that the starting point is that the Tribunal must review a guardianship order at the request of any person entitled to request a review of that order: s 24(2)(a) of the Guardianship Act. That the pre-condition to the exercise of that discretion is satisfied, does not require that the discretion be exercised. In considering whether to exercise, or not to exercise that discretion, we must give paramount consideration to the welfare and interests of the Mother.
7. We have decided to exercise that discretion not to review the 2021 guardianship order because: 1. To conduct a review in circumstances where the proposed guardians have failed to provide any material which would allow an assessment to be made of the sole issue they seek to agitate, that is, their suitability for appointment as the Mother's guardian, would be an exercise in futility. 2. In those circumstances, to conduct a review would be inconsistent with our obligation to seek to give effect to the guiding principle: to facilitate the just, quick and cheap resolution of the real issues in the proceedings: ss 36(1), 36(2) of the NCAT Act. 3. Our decision does not prevent the proposed guardians from making a further request for review and providing material which addresses the criteria for appointment mandated by s 17 of the Guardianship Act. In addition, we note that s 25C(2)(b) of the Guardianship Act requires the Tribunal to review the 2021 guardianship order within the next few months at the expiration of its term.

Deal with appeal by way of new hearing

1. The Appellant urges us to deal with the appeal under s 80(3) of the NCAT Act by way of a new hearing and to permit fresh evidence to be given. In the Notice of Appeal, the Appellant contends that circumstances have changed since the July 2021 review and that "there is fresh evidence that the Public Guardian has not complied with the orders and exercising the functions and decision on 20 December 2020".
2. We understand the Appellant to contend that the imminent sale of the family home, the consequent need for a decision to be made about the Mother's future accommodation and the Sister's alleged actions in preventing prospective buyers from inspecting the property, constitutes "fresh evidence" which warrants the exercise of the power to conduct a new hearing. In addition, we understand the Appellant to assert that the Public Guardian's alleged inability to properly discharge its role as guardian for the Mother together with the Husband's ability to "exercise the functions more quickly, easily and without the lengthy, untimely unprofessional response from the Public Guardian" also constitutes fresh evidence.
3. Even if accepted that this purported evidence could be described as "fresh" in the sense used in ZND v ZNE [2020] NSWCATAP 34 at [62], we are not persuaded that it warrants the exercise of the power to deal with the appeal under s 80(3) of the NCAT Act. This is because that material is relevant to the merits of decisions made by the Public Guardian, not to the appropriateness of the decision not to review the decision to reappoint the Public Guardian under the July 2021 guardianship order.
4. We are not persuaded that the grounds of appeal warrant a new hearing.

Leave to appeal

1. The Appellant urges the Appeal Panel to grant leave to appeal. In support she repeats the arguments made in support of the application to have the appeal dealt with by way of a new hearing: the purported poor performance of the Public Guardian in the exercise of its role as guardian for the Mother and the availability of fresh evidence.
2. As explained above after setting aside the decision under appeal, and reconsidering the request for review of the 2021 guardianship order we reached the same conclusion as the September 2021 Tribunal. For the reasons given above, we are not persuaded that the purported fresh evidence warrants the exercise of the discretion to grant leave to appeal.
3. The circumstances do not warrant the exercise of the discretion to grant leave to appeal. Leave is refused.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 29 March 2022