Guardianship Division Case Digest Issue 1 of 2025 | The Guardianship Division Case Digest provides a summary of relevant and interesting case law of significance to the work of NCAT's Guardianship Division.
This issue features case summaries of decisions from the Guardianship Division, NCAT Appeal Panel, Supreme Court of New South Wales, and NSW Court of Appeal. | | NCAT Guardianship Division | James (a pseudonym) [2025] NSWCATGD 1 EM Connor, Senior Member (Legal), Dr B McPhee, Senior Member (Professional), M Watson, General Member (Community) – 12 March 2025
In Sum: The Tribunal decided to vary a guardianship order by adding a legal advice function to enable the guardian to respond on behalf of the subject person to a request from NSW Police to provide a DNA sample. In addition, the Tribunal decided to add a restrictive practices function and a surveillance function.
Facts: James is a 54-year-old man who has acquired brain injuries. James has been the subject of guardianship and financial management orders since 2013. Under the order reviewed by the Tribunal, the Public Guardian was appointed as James’ guardian with authority to make decisions about James’ accommodation (and, to ‘authorise others’ to move, to keep and to return James to accommodation approved by the guardian), health care, and services, to consent to medical and dental treatment on behalf of James, and, to override James’ objections to medical and dental treatment.
James’ NDIS support coordinator requested NCAT to review the guardianship order made in 2024 and requested that a ‘forensic and legal services’ function be added to that order, following a request made by NSW Police to James for a forensic sample (‘the sample request’).
Issues and outcome:
(i) The Tribunal decided to vary the guardianship order to enable the Guardian to obtain legal advice and to respond on James’ behalf to the sample request (‘the legal function’). That request was made under ss 75A and 75G of the Crimes (Forensic Procedures) Act 2000 (NSW) (‘the FP Act’), which empowers Police to request a ’forensic procedure’ including a DNA sample, except from ‘incapable’ persons (which requires additional authority). The Tribunal said on the available material it was unable to determine whether James was an ‘incapable person’ within the meaning of the FP Act. Whilst James said that that he wished to decline providing the sample, it was not clear that he understood the consequences of failing to respond to the sample request and there was evidence that he had little insight into legal processes generally. The Tribunal considered that the Public Guardian may wish to arrange an assessment as to whether James was an ‘incapable person’ (which they were empowered to do under current functions of the guardianship order). Ultimately, taking account the need to respond to the request, the Tribunal determined to vary the order to allow the Public Guardian to access legal advice and respond to the request for DNA.
(ii) In addition, at the request of the applicant, the Tribunal added a restrictive practices function to the guardianship order to enable the guardian to give or to withhold consent the restrictive practice (environmental restraint). The Tribunal concluded the locking of the door and gates at James’ residence, and staff locking themselves in the office away from James, constituted a restrictive practice.
(iii) The Tribunal found that conducting video surveillance of James’ home as proposed by the applicant was not a restrictive practice. Nonetheless, noting the potential privacy issues, the Tribunal gave the public guardian a ‘surveillance’ function to enable the guardian to decide whether video or other monitoring equipment should be used at James’ residence for his safety and welfare if he was refusing to allow support workers to remain on the premises. | Jess (a pseudonym) [2024] NSWCATGD 16 A Britton, Deputy President, Dr B McPhee, Senior Member (Professional), S Bullock, General Member (Community) – 4 October 2024
In late 2024, the GD considered three applications under s 175 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) (the Care Act), seeking consent to give gender-affirming hormone therapy (special medical treatment) to three transgender children.
In Charles (a pseudonym) [2024] NSWCATGD 15, the Tribunal decided it lacked power to grant consent because the proposed treatment (prescription testosterone) did not constitute special medical treatment, as it was “not reasonably likely to result in permanent infertility”.
In Lisa (a pseudonym) [2024] NSWCATGD 17, the Tribunal found that the proposed treatment (prescription of oral or transdermal oestrogen) constituted special medical treatment. However, the Tribunal was not satisfied that it was necessary to save Lisa’s life or to prevent serious harm to her physical or psychological health and therefore the Tribunal lacked power to grant consent.
Jess (a pseudonym) [2024] NSWCATGD 16
In Sum: The Tribunal exercised its discretion under s 175 of the Care Act, to grant consent to special medical treatment. This decision authorised the provision of gender-affirming hormone therapy to Jess, a 15-year-old transgender person. The Tribunal was satisfied that although the treatment carried a real risk of permanent infertility, it was necessary to prevent serious damage to the Jess’ psychological well-being.
Facts: Jess is a 15-year-old transgender female (assigned male at birth). In April 2023 she was diagnosed with Gender Dysphoria, described as “incongruence between ones experienced/ expressed gender and their assigned gender” ([9]). In August 2023 she began taking medication to delay the onset of male puberty (stage 1 treatment). With the support of her parents, she later pursued ‘gender affirming hormone therapy’, the prescription of oral or transdermal oestrogen to “bring about the feminisation of [her] body” (the proposed treatment) ([21]). On 29 July 2024 Jess’ Local Health District lodged an application with the Tribunal under s 175 of the Care Act seeking consent to administer the proposed treatment to Jess.
Issues and outcome:
(i) As a preliminary matter, the Tribunal was required to determine whether the proposed treatment carried a risk of permanent infertility, such that it qualified as "special medical treatment" under section 175(5)(a) of the Care Act. Once established, the Tribunal’s jurisdiction to grant consent under section 175(2)(b) would be enlivened. The Tribunal would then be required to consider whether the proposed treatment was necessary to "save the [respondent’s] life or to prevent serious damage to the [respondent’s] psychological or physical health," such that a grant of consent may be ordered (s 175(3)).
(ii) The Tribunal was satisfied the proposed treatment constituted special medical treatment for the purpose of s 175(5). In determining whether that treatment was reasonably likely to cause permanent infertility, the Tribunal clarified that the anticipated risk need not be probable, but must exceed “mere speculation, conjecture, or possibility” ([35]). The Tribunal accepted that the administration of oral or transdermal oestrogen would impair the “production and maturation of sperm cells”, thereby inhibiting fertility whilst the treatment is being administered ([47]). The question of whether infertility would persist if the treatment were discontinued was more uncertain. This was partly attributable to the scarcity of evidence regarding the fertility outcomes of trans-feminine individuals undergoing gender-affirming hormone therapy ([65]). Nevertheless, based on the expert evidence presented in the proceedings, the Tribunal was satisfied that there was a “real but immeasurable chance that permanent infertility may be the effect of the treatment” ([68]).
(iii) The Tribunal noted that s 175(5)(a) operates as a “carve-out provision”, excluding from the definition of “special medical treatment” interventions intended to remediate a life-threatening condition, but which carry an unwanted risk of permanent infertility. The Separate Representative submitted that the proposed treatment was captured by this provision, in effect negating the requirement of the Tribunal’s consent. The Tribunal rejected this argument. The Tribunal held that Gender Dysphoria is not itself a life-threatening condition, although it often contributes to mental ill-health ([85]-[86]) and that s 175(5)(a) requires a consideration of the intention of the medical practitioner who recommended the proposed treatment, which in this case was to “‘bring about the feminisation of [Jess’] body to treat her dysphoria.’”
(iv) The Tribunal also rejected the Separate Representative’s submission that, in determining whether the proposed treatment was likely to cause permanent infertility, the Tribunal was restricted to considering the treatment’s effects only until Jess’ 16th birthday. The Tribunal stated that this approach “would be a failure of jurisdiction and potentially lead to absurd results” ([40]). It clarified that s 175 of the Care Act is both “present-oriented and forward looking”, requiring that the Tribunal anticipate the future repercussions of a proposed treatment over its entire anticipated course ([40]).
(v) The Tribunal decided to exercise its discretion under s 175(2)(b) to consent to the proposed treatment, because it was satisfied that the treatment was necessary to save the Jess’ life or prevent serious damage to her psychological health. That decision was substantially based on evidence that Jess is exceptionally vulnerable to self-harm and regularly experiences suicidal ideation, her gender dysphoria a primary catalyst for this. | LXN [2024] NSWCATGD 13 J D’Arcy, Senior Member (Legal), Dr B McPhee, Senior Member (Professional), D R Sword, General Member (Community) – 6 August 2024
In Sum: The Tribunal made guardianship and financial management orders in relation to LXN, a citizen of Cambodia. LXN resided at a safe house in NSW and was reported to be a victim of trafficking, exploitation, and abuse. The Tribunal considered that decisions needed to be made to facilitate LXN’s safe return to Cambodia.
Facts: LXN is a 26-year-old Cambodian woman who was living in a safe house at an undisclosed location in Sydney. LXN had no family in Australia. LXN was reported to have a cognitive impairment and a complex history of trauma, including having been subject to trafficking, exploitation and abuse. MZE, a case manager at the safe house, applied for the appointment of a guardian and financial manager for LXN. The Tribunal ordered that LXN be separately represented.
Issues and outcome:
(i) Under the Guardianship Act 1987 (NSW) (‘Guardianship Act’), the Tribunal may make a guardianship order for a person if it is satisfied that they are “a person in need of a guardian”: ss 3(1), 4. Based on the medical opinions of Dr Y (clinical neurologist) and Dr Z (consultant psychiatrist), the Tribunal was satisfied that LXN had a disability which prevents her from making important life decisions. Accordingly, LXN was a person for whom the Tribunal could make a guardianship order.
(ii) Before exercising its discretion to make a guardianship order, the Tribunal was required to consider the matters set out in s 14(2) of the Guardianship Act. The Tribunal found that LXN was a highly vulnerable young woman whose profoundly adverse life experiences had resulted in her losing her capacity to make decisions and to communicate. The Tribunal considered that LXN was incapable of making decisions which would provide her with safe and appropriate accommodation, suitable health care, and services. The Tribunal also considered that LXN could not consent to medical treatment, give instructions to a lawyer, or make complex decisions about her visa status. In those circumstances, the Tribunal decided to make a guardianship order with the following functions: accommodation (authorise others), health care, consent to medical and detail treatment, services, legal services, passport, visa and travel.
(iii) With no private person available, the Tribunal appointed the Public Guardian as LXN’s guardian. The Tribunal decided to make an order for 12 months.
(iv) In relation to the financial management order, based on medical evidence of Dr Y and Dr Z, the Tribunal was satisfied that LXN has a major neurocognitive disorder which prevented her from managing her financial affairs.
(v) The Tribunal discussed how LXN may be entitled to funding through the Support for Trafficked People Program (STPP). The Tribunal held that a financial manager would be needed to apply to the STPP on LXN’s behalf, to apply for Centrelink benefits should a change in visa status entitle her to an income support payment, and to apply for identification documents. Accordingly, the Tribunal considered that there was a need for a financial management order.
(vi) Similarly, the Tribunal was satisfied that LXN’s best interests were served by the appointment of a financial manager who can make decisions to allow her to live community with appropriate financial supports, identity documents, and access to services. In the absence of any proposal for a private manager, the Tribunal appointed the NSW Trustee & Guardian as LXN’s financial manager. | LXN (No 2) NSWCATGD [2024] 21 R H Booby, Principal Member – 22 November 2024
In Sum: The Tribunal decided to vary the guardianship order made in respect of LXN (see case summary above) to enable the Public Guardian to make decisions about restrictive practices, of the use of a tracking device, assessments relating to possible sexual assault, and the release of any Sexual Assault Investigation Kit (SAIK).
Facts: The Tribunal was asked to review a guardianship order appointing the Public Guardian made on 6 August 2024 for LXN, a 27-year-old Cambodian woman. LXN has a cognitive impairment and a complex history of trauma, having been subject to trafficking, exploitation and abuse. She is currently on a temporary visa in Australia: see LXN [2024] NSWCATGD 13.
The order made on 6 August 2024 authorised the Public Guardian to make decisions in relation to LXN’s accommodation, including authorising others, health care, medical/dental treatment, services, access to legal services, travel outside Australia, and her passport and visa status. On 12 November 2024, MZE (a case manager at a charitable organisation safehouse), applied for a review of the guardianship order seeking additional functions in the context of possible sexual assault.
Issues and outcome:
(i) The Tribunal considered the additional ‘sexual assault’ function sought by the applicant in the context of previous evidence as to LXN’s capacity, specifically with regard to making decisions, and new evidence which suggested she was particularly at risk of physical and sexual exploitation. MZE submitted that the function was sought following LXN having reported that she was sexually assaulted and being taken to a public hospital, where she was unable to consent to a sexual assault examination or the release of the SAIK. At the hearing, LXN indicated she did not remember going to the hospital nor experiencing sexual assault and it was difficult to ascertain her understanding of the situation. Nonetheless, there was evidence that LXN had previously reported to the police that her ‘boyfriend’ had strangled her numerous times. Further, she was known to frequently leave the safehouse to an unknown location and return with cash, despite not having access to any social security or other recognised income. Due to ongoing concerns as to her welfare and evidence to the effect that her cognitive impairment prevented her from reporting these incidents and seeking appropriate investigation, the Tribunal decided that it was appropriate to make a further order enabling the Public Guardian to consent to sexual assault investigations and the release of the SAIK. The Public Guardian was amenable to the variation of the order.
(ii) In relation to restrictive practices, MZE sought an additional function enabling a GPS tracking device to be used to ascertain where LXN was going and to allow staff to locate her and provide assistance to her. As noted above there was evidence that LXN frequently left the safe house to an unknown location and was unable to return, having forgotten the address or how to navigate whilst she is out. The Tribunal held that a tracking device was not a restrictive practice as it did not restrict LXN’s freedoms in any way; however, it agreed that an additional function to determine whether a tracking device was appropriate given the potential privacy concerns. LXN and the Public Guardian were amenable to this variation of the order.
(iii) MZE also sought a function to provide LXN with a locked timed medication dispenser as her memory impairment resulted in her forgetting to take her medication or taking too much. Staff at the safe house were concerned that she may overdose on the medication, however, staff were not permitted to administer medication and were not always in attendance at the safe house. The Tribunal was satisfied that a locked dispenser constituted a restrictive practice and agreed that a variation enabling the Public Guardian to decide in this regard was appropriate. LXN and the Public Guardian were amenable to the variation.
(iv) The Tribunal determined to give the Public Guardian power to make decisions about restrictive practices function at league, rather than a particular restrictive practices. The Tribunal reasoned that, given LXN’s complex presentation and circumstances, it was likely that a further restriction of a different nature may be necessary in future. Further, the Public Guardian was well placed to consider the use of a range of restrictive practices and, given LXN’s circumstances and needs, it was desirable to avoid the need for repeat hearings in relation to this issue. | NGK [2024] NSWCATGD 12 J McAteer Senior Member, S Lee Senior Member (Professional), A Healy General Member (Community) – 19 June 2024
In Sum: The Tribunal dismissed an application to review an enduring power of attorney under s 55(1)(b) of the Civil and Administrative Tribunal Act 2013 (NSW). The Tribunal found that it had no jurisdiction to conduct a review because the instrument as executed was not an enduring power of attorney, but a general power of attorney.
Facts: NGK is an 85-year-old man living in respite care at an aged care facility. NGK is reported to have a diagnosis of dementia. In 2021, NGK executed a Power of Attorney (PoA) appointing his wife as Attorney, and his three sons as substitute Attorneys. The family lodged applications to review the PoA. The Tribunal also considered an application for a Financial Management order.
Issues and Outcome:
(i) In relation to powers of Attorney generally, the Tribunal does not have the power to examine, vary or otherwise make declarations or confirmations in respect of a PoA. However, an exception arises if, on the face of the document, the PoA is taken to be ‘enduring’. Section 19 of the Powers of Attorney Act 2003 (NSW) (the PoA Act) sets out what constitutes an enduring PoA. The Tribunal found that the PoA executed in 2021 was not an enduring PoA within the meaning of s 19 of the PoA Act. Accordingly, the Tribunal did not have jurisdiction to deal with the application and dismissed it under s 55(1)(b) of the Civil and Administrative Act.
(ii) In relation to the application for a financial management order, the Tribunal found that NGK was a person who needed assistance in managing his affairs because he was not able to manage these matters successfully himself and that it would be in his best interests that he receives assistance. On that basis, the Tribunal was satisfied that there is a need for a Financial Management Order. | CGQ [2024] NSWCATGD 10 A Britton, Deputy President, Dr M J Corr, Senior Member (Professional), S Bullock, General Member (Community) – 21 May 2024
In Sum: The Tribunal made guardianship and financial management orders in relation to 17-year-CGQ, for whom the NSW Minister for Community Services (the Minister) had parental responsibility. The orders were to take effect when CGQ turned 18.
Facts: At the time of the hearing, CGQ was about to turn 18 and living in a group home managed by a service provider. Since 2016, the Minister had had parental responsibility for CGQ. In May 2024, the service provider’s case manager made an application to NCAT seeking guardianship and financial management orders in respect of CGQ. When that application was made, neither the Minister nor the service provider had made any arrangements for the management of CGQ’s personal and financial affairs after he turned 18.
Issues and Outcome:
(i) As a preliminary issue, the Tribunal considered whether Ms Z (one of CGQ’s sisters) was a ‘carer’ for CGQ and therefore a party to the proceedings. A person “who has care of the person to whom the application relates” is a party to the proceedings in respect of applications made for guardianship orders and financial management orders under the Guardianship Act: ss 3F(2)(d) and 35(5)(d). A report prepared by an occupational therapist noted that CGQ was living with Ms Z before the Children’s Court of NSW made orders giving the Minister parental responsibility for CGQ in 2016 and CGQ began to live in a group home. This was relevant because if correct and Ms Z “had the care of” CGQ, CGQ would have remained “in the care of” Ms Z when he moved to live in a group home, and, as “carer” she would be a party to the proceedings. The Tribunal considered whether the adjourn the hearing to allow enquiries to be made as to whether Ms Z was a carer for CGQ. Under s 10(1A) of the Guardianship Act, a party to proceedings is entitled to receive a notice specifying the date, time and place at which the Tribunal will conduct the hearing from the Tribunal before the hearing. However, the Tribunal ultimately decided to dispense with the s 10 requirement given the real, material and imminent risk of harm to CGQ were the hearing to be delayed (see Sch 6 cl 6A of the Civil and Administrative Tribunal Act 2013 (NSW), the risk being that CGQ would turn 18 in a few days’ time and be left without anyone authorised to make decisions on his behalf.
(ii) CGQ had been diagnosed with cerebral palsy, intellectual disability, non-verbal, scoliosis-severe recurrent aspiration on fluids, epilepsy, and behavioural difficulties. On that basis, the Tribunal was satisfied that CGQ required support and supervision to undertake most activities of daily living. As a result, CGQ was incapable of managing his person and was therefore a ‘person in need of a guardian’.
(iii) In circumstances where a series of significant decisions needed to be made about CGQ's personal affairs when he turns 18; where he is unable to make those decisions; where, to date, decisions about CGQ's personal affairs have been made by the Minister and the service provider; where neither the Minister nor the service provider have indicated that they would be able or willing to make decisions about CGQ's personal affairs when he turns 18; where apparently there is no family member able and willing to do so, the Tribunal found it was demonstrably in CGQ's welfare and interests that the discretion to make a guardianship order be exercised.
(iv) The Public Guardian was appointed as there was no private person available to act as guardian for CGQ.
(v) In relation to the financial management order, the Tribunal was satisfied that, because of the extent of his cognitive impairment, CGQ was incapable of managing his financial affairs. In circumstances where CGQ was unable to manage his affairs; is without the support of family or friends; and required decisions to be made about his financial affairs in the immediate future, the Tribunal considered that there is a clear need for a person to manage CGQ’s finances. For equal reasons, it was in CGQ’s best interests that a financial management order be made.
(vi) As no individual has nominated to act as manager of CGQ’s estate, the Tribunal decided to commit the management to the NSW Trustee and Guardian. | The following decision relates to GKC [2022] NSWCATGD 23. See Guardianship Division Case Digest Issue 1 of 2023 for a summary of that decision.
GKC (No 2) [2024] NSWCATGD 7 J Moir, Senior Member (Legal), M Bain, Senior Member (Professional) - 10 November 2023 & J Moir, Senior Member (Legal), M Bain, Senior Member (Professional), P Davidson, General Member (Community) - 23 February 2024
In Sum: The Tribunal revoked a financial management order made in respect of then 18-year-old GKC, after finding that there has been a significant improvement in GKC’s ability to manage his financial affairs. The Tribunal also revoked a guardianship order after finding that GKC was able to make important life decisions with informal support.
Facts: GKC is a 19-year-old man with autism spectrum disorder and a history of anxiety disorder and avoidant restrictive food intake disorder. In 2022, the Tribunal made a guardianship order and a financial management order for GKC. In November 2023 and February 2024, the Tribunal reviewed those orders. At the time of the 2023 hearing, GKC was living in supported independent living accommodation, managed by a disability service provider. At the time of the 2024 hearing, GKC was living in Queensland with his father.
Issues and Outcome:
(i) On review of a guardianship order, the Tribunal may make a further guardianship order for a person if it is satisfied that they continue to be a “person in need of a guardian”, that is, a “person who because of a disability is totally or partially incapable of managing his or her person”: Guardianship Act ss 3(1), 14(1). In determining whether GKC continued to have a disability causing him to be incapable of managing his person, the Tribunal considered what it considered to be inconsistent evidence about the impact of GKC’s Autism Spectrum Disorder and anxiety on GKC. The Tribunal found that some of the written evidence before it relied too heavily on “how GKC used to be” when the original guardianship and financial management orders were made, and not how he is now [37]. The Tribunal gave greater weight to evidence which was based on a “sound understanding of GKC over a period of time” and was consistent with GKC’s views and his presentation at hearing. This established that, whilst GKC continued to live with autism spectrum disorder and required some supports to live independently, he had improved considerably in his decision-making abilities and his ability to manage independently and was now able to make important life decisions. Accordingly, the Tribunal found that GKC was not a person for whom the Tribunal could make a further guardianship order.
(ii) The Tribunal was further impressed with GKC’s presentation, sophisticated understanding, and explanation of his financial situation and decisions. Based on the available evidence, including expert evidence referred to above and GKC’s own views, the Tribunal was satisfied that GKC could manage his financial affairs. The Tribunal revoked the existing financial management order on that basis. | NXU [2023] NSWCATGD 24 J Moir, Senior Member (Legal), Dr B McPhee, Senior Member (Professional), L Stewart, General Member (Community) – 9 November 2023
In Sum: The Tribunal provided consent for a patient to undergo a hysterectomy, finding that the treatment constitutes ‘special medical treatment’ under s 33 of the Guardianship Act, and is necessary to prevent serious damage to the patient’s health.
Facts: NXU is a 44-year-old woman diagnosed with intellectual disability and epilepsy. The Tribunal received an application for consent to special medical treatment for NXU from a gynaecologist and obstetrician from a public hospital. The proposed treatment was a hysterectomy with bilateral salpingectomy. The proposed treatment was intended to treat NXU’s very large, multi-fibroid uterus which caused her heavy bleeding.
The Tribunal had to decide the following questions:
(i) Is the proposed treatment ‘special medical treatment’?
(ii) Is NXU able to consent to the proposed treatment?
(iii) Are there alternative courses of treatment available?
(iv) Is the proposed treatment necessary to save NXU’s life or prevent serious damage to her health?
(v) If so, should the Tribunal provide consent?
Issues and Outcome:
(i) The Tribunal found that the proposed treatment fell within the definition of special medical treatment, as it would have the effect of rendering NXU permanently infertile.
(ii) The medical evidence before the Tribunal was to the effect that NXU has an intellectual disability and did not understand the general nature and effect of the proposed treatment. The Tribunal accepted that evidence and found that NXU was not capable of providing consent to the proposed treatment.
(iii) The Tribunal was informed that there were several options to treat NXU’s very large fibroids and consequent menstrual bleeding. However, the proposed hysterectomy was regarded as the best option because other the alternative treatments would not address all the issues NXU was facing. In addition, the potential side effects from some of the alternative treatments would be significantly worse than the side effects from the proposed hysterectomy. The medical opinion was that there were no alternative treatments which could address all of the necessary issues with acceptable side effects. Accordingly, the Tribunal was satisfied that the proposed treatment was the most appropriate treatment.
(iv) The medical opinion was that the treatment will prevent serious damage to NXU’s health by preventing massive haemorrhage and possible malignancy, and for that reason, was potentially necessary to save her life. The Tribunal was satisfied from the available evidence that the proposed treatment was therefore necessary to prevent serious damage to NXU’s health.
(v) The Tribunal had regard to NXU's condition, the alternative options for treatment, the risks and benefits of the proposed treatment, and was satisfied that there are no alternatives which may provide equivalent outcomes for NXU. The Tribunal was satisfied on the basis of the evidence, that the treatment was necessary to prevent serious damage to NXU's health, and on this basis gave consent to the proposed treatment. | | YJV v YJW [2024] NSWCATAP 255 A Britton, Deputy President, L Organ, Senior Member, C Kennedy, General Member – 13 December 2024
In Sum: A respondent’s conduct in failing to inform the appellants that their mother, who was the subject of the appeal, had died 42 days prior to the appeal hearing constituted special circumstances under s 60(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (‘NCAT Act’) warranting an award of costs.
Facts: The appellants are the sisters of the respondent (‘YXD’). The appellants and the respondent were the children of YJW (‘the Mother’), who was the subject of the decision under appeal. Two of the three appellants were appointed as the Mother’s enduring guardians and attorneys in 2017. In December 2022 their appointments were revoked, and the respondent and a granddaughter were appointed to those roles. In January 2023, one of the appellants made applications to the Guardianship Division seeking a review of the respondent’s appointment as their mother’s enduring guardian and attorney on the basis that the mother lacked capacity to revoke the 2017 appointments and to appoint the respondent as her guardian, and that the respondent had subjected the mother to undue influence. The Tribunal dismissed the applications based on insufficient evidence (‘the initial decision’).
On 21 March 2024, the appellants filed a notice of appeal in relation to the initial decision. A hearing was listed for 22 August 2024. On 21 August 2024 at 17:16pm, the respondent’s legal representative informed the NCAT via email that the Mother had died on 13 July 2024. The appellants were notified at the hearing the next day, whereupon the appeal was withdrawn. The respondent claimed that he had telephoned NCAT at an earlier time to advise them of the Mother’s death and was asked to provide a ‘death certificate.’
The appellants sought an order for legal costs and disbursements on the basis that the respondent’s conduct in failing to inform them that the Mother had died 42 days prior to the appeal hearing unnecessarily prolonged the appeal hearing and resulted in incurring unnecessary costs, such that it constituted special circumstances under s 60(2) of the NCAT Act.
Held (awarding costs):
(i) The respondent’s conduct disadvantaged the appellants, caused them to incur unnecessary costs in the appeal. The Appeal Panel rejected the explanation given by the respondent for his conduct:
the Appeal Panel noted that the respondent had provided no evidence in support of his claim that that he had informed NCAT by telephone of the Mother’s death; the email from the respondent’s legal representative, which advised NCAT that he had only very recently received instructions in this regard, indicated that the respondent had delayed seeking any legal advice arising out of the Mother’s death until shortly before the hearing; and the Appeal Panel noted that respondent’s claim that the reason he did not inform the appellants of their mother’s death was because he been directed by the mother not to do so, was unsupported and inconsistent with the claim that he had informed the NCAT via telephone before the hearing.
(ii) An order for indemnity costs, as opposed to party-party costs on an ordinary basis, was warranted as the respondent’s conduct had “some relevant delinquency” (Oshlack v Richmond River Council (1998) 193 CLR 72) insofar as it was deliberate and resulted in appeal proceedings being unnecessarily prolonged. The Appeal Panel stated that the respondent’s conduct resulted in ‘the appellants [being] put to the trouble, anxiety and expense of continuing an appeal which had been rendered futile by the Mother’s death’ [48].
(iii) The Appeal Panel decided not to award costs incurred by the appellants before their mother’s death as the evidence did not establish as contended by the appellants that the respondent knew that his mother’s death was imminent. The appellants relied on evidence, which was only revealed at the appeal hearing, that the Mother had been hospitalised in May 2024 and had been in ill health before she died. The respondent did not inform the appellants that the Mother had been hospitalised.
(iv) A costs order for the appellants in a fixed sum for $11,340 was made. The Appeal Panel decided to make an order for costs in a fixed sum because the amount claimed was relatively modest and the schedule of costs provided by the appellants was sufficiently clear to enable the Appeal Panel to determine if the claimed costs and disbursements were fair and reasonable. | YJY v YJX [2024] NSWCATAP 179 A Britton, Deputy President, J T Kearney, Senior Member, F N Given, General Member – 19 September 2024
In Sum: The Appeal Panel rejected each of the three grounds of appeal and dismissed the appeal. The Appeal Panel found that the Tribunal did not misapply the test under ss 15(3) and 17 of the Guardianship Act.
Facts: In August 2020, in separate applications, YJY (‘the Daughter’) and YJZ (‘the Spouse’) requested NCAT to make guardianship and financial management orders in respect of YJX (‘the Father’).
In September 2020, the Tribunal considered those applications and declined to make a guardianship order. The Tribunal reasoned that decisions about Father’s personal affairs could be made informally without a guardianship order. The Tribunal did, however, make a financial management order committing the management of the Father’s estate to the NSW Trustee & Guardian.
In October 2023, the Daughter made a further application to the Tribunal requesting that a guardianship order be made in respect of the Father, and that she be appointed as guardian. The appellant claimed that major decisions had been made on behalf of the Father by the Spouse without consultation with her, or her sisters.
In January 2024, the Spouse made an application for a guardianship order requesting that she be appointed as the Father’s guardian.
In February 2024, the Tribunal considered both applications. The Tribunal decided to make a guardianship order for a period of 12 months (‘the Order’). The Tribunal found that neither the Daughter nor the Spouse were able to exercise the functions conferred by that order and therefore appointed the Public Guardian. The functions of that order included: accommodation, health care medical and dental consent, and restrictive practices (chemical restraint).
The Daughter raised the following questions of law:
(i) Whether the Tribunal misapplied ss 15 and 17 of the Guardianship Act by appointing the Public Guardian as the Father’s guardian;
(ii) Whether there was “no evidence” to support the “family conflict finding”; and
(iii) Whether there was “no evidence” to support the finding that YJY was unable to exercise the functions conferred by the guardianship order.
Held (dismissing the appeal):
(i) The Tribunal was required to make an evaluative judgment about whether the Daughter and/or the Spouse were “able” to exercise the functions conferred by the guardianship order: NCAT Act s 17(1)(c). It was apparent from the Tribunal’s Reasons that the Tribunal was not satisfied that the Daughter and the Spouse were able to discharge the functions of the guardianship order in a manner which was consistent with the principles in s 4 of the Guardianship Act [34]. Accordingly, it was not open to the Tribunal to appoint either YJY or the Spouse as guardian. The Appeal Panel rejected the contention that that the Tribunal had misapplied ss 15(3) and 17(1).
(ii) The Appeal Panel affirmed that it is an error of law to make a finding of fact for which there is no evidence, citing Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355-6. However, a finding of fact which is supported by at least some evidence does not reveal an error of law, even if it was made by ignoring the probative force of the evidence which supports a different finding of fact (Azzopardi v Tasman UBE Industries Pty Limited (1985) 4 NSWLR 139 at 155-156 (Glass JA)). The Appeal Panel rejected the appellant’s contention that there was no evidence to support the “family conflict finding”, referring, in particular, to the supporting evidence given by the Spouse and the director. The Appeal Panel characterised that contention as ‘an expression of disagreement with [the family conflict] finding’ [50].
(iii) Similarly, the Appeal Panel rejected the contention that there was no evidence to support the conclusion reached by the Tribunal that it was not satisfied that the appellant was “able” to exercise the guardianship functions. Again, the Appeal Panel characterised the appellant’s submission as ‘an expression of disagreement with that finding’ [57]. | YHG v Public Guardian [2024] NSWCATAP 171 A Britton, Deputy President, A Boxall, Senior Member (Legal), L Stewart, General Member – 2 September 2024
In Sum: The Appeal Panel held that the none of the six grounds of appeal were established and dismissed the appeal.
Facts: In October 2002, an application was made to the NSW Guardianship Tribunal for financial management and guardianship orders in respect of YHG (‘the Appellant’). In December 2002, the Tribunal dismissed that application. In June 2003, the application for a guardianship order was withdrawn.
In October 2012, the Tribunal made a guardianship order in respect of the Appellant and appointed the NSW Public Guardian for a period of six months. In April 2013, the Tribunal reviewed that order and ordered that it should lapse.
In 2021, a support coordinator applied to NCAT for a guardianship order in respect of the Appellant. The support coordinator claimed that the Appellant was living in squalor, refusing to accept services and refusing medical treatment. In August 2021, the Tribunal made a guardianship order in respect of the Appellant and appointed the Public Guardian for a period of 12 months (‘2021 Order’). The order included the following functions: accommodation, health care, services, to consent to medical and dental treatment, and to “authorise others” to take, keep and return the appellant to accommodation.
In September 2022, the Hunter New England Local Health District applied to NCAT requesting a financial management order in respect of the Appellant. At that time, the Appellant was an inpatient at a Mental Health Unit.
In October 2022, the Tribunal reviewed the 2021 Guardianship Order and renewed and varied that order to add a restrictive practices function (‘2022 Guardianship Order’).
In November 2022, the Appellant and YKX (who was assumed to be the Appellant’s spouse at the time of the review proceedings), in separate applications, requested the Tribunal to review and to revoke the 2022 Guardianship Order. Following a hearing, the Tribunal made an interim financial management order for a period of three months and committed the management of the Appellant’s estate to the NSW Trustee and Guardian.
In February 2023, the Tribunal made a financial management order recommitting management of the Appellant’s estate to the NSW Trustee.
In May 2023, at the request of the Appellant and YKX, the Tribunal consented to the withdrawal of their requested review of the 2022 Guardianship Order.
On 28 September 2023, the Tribunal conducted an end-of-term review of the 2022 Order and renewed that order for a term of twelve months and reappointed the Public Guardian (‘2023 Guardianship Order’). The 2023 Order allowed the Public Guardian to make decisions in relation to the Appellant’s accommodation, with the ability to authorise others to take, keep or return the Appellant to a place, health care, services, and to consent to medical and dental treatment.
The appeal concerned the 2023 Order.
The following questions of law were raised:
(i) Whether the Tribunal denied the appellant and/or YKX procedural fairness by proceeding to review the 2022 Order at the hearing on 28 September 2023 in the absence of YKX;
(ii) Whether the Tribunal failed to take such measures, as it was required to by 38(5)(a) of the NCAT Act, as are reasonably practicable to ensure that the appellant understood the nature of the review proceedings, specifically that the Tribunal would not be considering “financial management” at the review hearing;
(iii) Whether the Tribunal failed to ensure, as was required by s 38(5)(c) of the NCAT Act, that the appellant had a reasonable opportunity to be heard, by ‘being unkind towards and attempting to silence’ the appellant during the review hearing;
(iv) Whether, in reviewing the 2022 Order,, the Tribunal applied the wrong test;
(v) Whether the Tribunal erred by admitting into evidence a report prepared by neuropsychologist, Dr Amy Baird, in circumstances whether Dr Baird declined to provide an opinion about the appellant’s capacity to make decisions about her personal affairs;
(vi) Whether the Tribunal erred by inviting the director of the appellant’s accommodation and services provider to make submissions during the review hearing in circumstances where the director had a “conflict of interest”.
Held (dismissing the appeal):
(i) The nature of the relationship between the Appellant and YKX was unclear. However, for the purposes of this appeal, it was assumed but not decided that at the time of the review proceedings YKX was the Appellant’s spouse within the meaning of s 3 of the Guardianship Act.
(ii) The Tribunal is required to observe the rules of procedural fairness: NCAT Act, s 38(2). This 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 in the proceedings”. The Appeal Panel held that, in circumstances where YKX was given written notice of the review hearing, and, where in the course of that hearing the Tribunal phoned YKX twice to invite him to participate, it cannot reasonably be suggested that he was not notified of the hearing or given a reasonable opportunity to be heard.
(iii) The Tribunal is obliged to “take such measures as are reasonably practicable to ensure that the parties to the proceedings before it understand the nature of the proceedings”: NCAT Act s 38(5)(a). The Appeal Panel rejected the contention that the Tribunal failed to take such steps in relation to the Appellant and considered relevant:
The notices sent to the appellant identified the nature of the review; The hearing report dated 21 September 2023 demonstrated that a staff member spoke to the appellant and explained the nature of the upcoming hearing; There was no evidence to suggests that the Appellant was unable to read or comprehend the notices of the hearing or the hearing report; The sound recording of the review hearing reveals that at that hearing the presiding member explained the nature of the review; and A personal statement addressed to “the Tribunal members”, dated 21 September 2023, tends to indicate that when the appellant prepared that statement, she had a reasonable understanding of the nature of the proceedings.
(iv) There can be circumstances where rudeness, belittling or unkind conduct by a Tribunal member towards a party may support a finding that the Tribunal failed to afford procedural fairness, by denying that party a reasonable opportunity to be heard: NCAT Act ss 38(2), (5)(c). The Appeal Panel held, after reviewing the transcript, that the exchange between the Tribunal and the Appellant about which she complained, could not be fairly characterised as harsh, belligerent or unkind.
(v) The Tribunal was required to consider the appellant’s current circumstances as at the time it conducted the review of the 2022 Order: NCAT Act s 25(2)(b). The Appeal Panel found that, in deciding whether the appellant was “a person in need of a guardian”, the Tribunal considered not only the history of guardianship orders made in respect of the appellant but also more recent evidence. The Appeal Panel rejected the contention that the Tribunal failed to have regard to look afresh at the question of whether a further guardianship order should, or should not, be made.
(vi) The report prepared by Dr Baird was relevant to some of the issues which arose for determination in the proceedings. The fact that Dr Baird failed to give an opinion about the Appellant’s capacity to make decisions, did not render that report inadmissible.
(vii) The Appeal Panel confirmed that there is no rule which prohibits the Tribunal from having regard to evidence given by a person who had, or is thought to have, an interest in the outcome of the proceedings. Any concern is addressed by the weight to be given to that evidence, which is a matter for the Tribunal. | YJC v Public Guardian [2024] NSWCATAP 160 Armstrong J, President, A Britton, Deputy President, J V Le Breton, General Member – 16 August 2024
In Sum: The Appeal Panel found no error of law in the Tribunal’s decision to commit the management of the subject person’s estate to the NSW Trustee and Guardian, instead of appointing a private financial manager. In exercising the discretion under s 25M(1) of the Guardianship Act the Tribunal is not restricted to appointing the NSW Trustee and Guardian as a “last resort”. The Appeal Panel allowed the appeal on a separate issue, having found that the Tribunal misapplied s 55(1)(b) of the Civil and Administrative Tribunal Act.
Facts: In November 2021 YJF (the Mother) made an enduring power of attorney (the 2021 EPoA) appointing three of her six children, YJC and YJD (the appellants) and YJE (the Sister) as her attorneys. The Mother also made an appointment of enduring guardianship appointing the same three children as her enduring guardians (the 2021 EGA). By a letter dated 12 June 2023 prepared by a solicitor, the Mother purportedly revoked the appointments of the appellants, leaving the Sister as sole attorney and enduring guardian.
The appellants made three applications to the Tribunal seeking (1) review of the 2021 EPoA (2) review of the purported revocation of the 2021 EPoA; and (3) review of the 2021 EGA. Those applications were made because the appellants claimed that the Mother lacked the capacity to revoke their appointment as attorneys and enduring guardians in June 2023. The appellants also made a series of allegations against the Sister including that she had withdrawn over $200,000 from the Mother’s bank accounts without the Mother’s knowledge, and that she had subjected the Mother to “undue influence” and “financial elder abuse”. In addition, the appellants claimed that the Sister was behind the preparation of the letter which revoked their appointments.
In October 2023 following a hearing, the Tribunal reviewed the 2021 EPoA, exercised the discretion to treat the application for review of the EPoA as an application for a financial management order, and made a financial management order in relation to the Mother’s estate. The Tribunal considered that it would not be conducive to the Mother’s best interests to appoint either the Sister or the appellants as her financial managers because each would oppose the appointment of the other. The Tribunal noted that the existing arrangements are unworkable and concluded that it was in the Mother’s best interests to commit the management of her estate to the NSW Trustee and Guardian (NSWTG).
The Tribunal also exercised the power under s 55(1)(b) of the Civil and Administrative Tribunal Act (‘NCAT Act’) to dismiss the application to review the purported revocation of the 2021 EPoA, and the application to review the 2021 EGA.
In February 2024 the appellants lodged an appeal against the Tribunal’s decisions. The appellants submitted that the Tribunal failed to apply the legal principle said to have been established by the NSW Court of Appeal in Holt v Protective Commissioner (1993) 31 NSWLR 227 ('Holt') that the power to commit the management of a person’s estate to the NSWTG can only be exercised as a “last resort” where there is no “suitable person” to be appointed. This is referred to throughout the Appeal Panel’s decision as the “last resort principle”.
Held (allowing the appeal in part):
(i) Under s 25M of the Guardianship Act, where the Tribunal makes a financial management order in respect of the estate of a person, the Tribunal may either appoint a suitable person as the manager of the estate or commit the management of that estate to the NSWTG. In Holt the Court of Appeal considered the operation of s 22 of the now repealed Protected Estates Act 1983 (NSW) which is in materially identical terms to s 25M of the Guardianship Act. In that decision, Kirby P stated that in exercising the discretion to appoint or to remove a manager of the estate of a protected person, a “suitable person” should be appointed as a manager. Only secondly should the Court appoint the Protective Commissioner (now the NSWTG). This was said to represent a “sensible hierarchy of choices” (Holt at 238-239). The Appeal Panel noted that while not a court, the Tribunal is bound by the ratio decidendi of the NSW Court of Appeal and Supreme Court. In addition, the Tribunal is bound by “seriously considered dicta” unless it considered that dicta to be “plainly wrong”. It follows that if the “last resort principle” formed part of the ratio decidendi or seriously considered dicta of Holt, in applying s 25M of the Guardianship Act, the Tribunal was bound by that principle ([37]-[38]).
(ii) The Appeal Panel concluded that the “last resort principle” did not form part of the ratio of Holt, nor did it constitute seriously considered dicta ([47]-[52]). Rather, the ratio in Holt was that in applying s 22 of the Protected Estates Act, the welfare of the protected person is the dominant consideration ([48]). Similarly, in deciding whether to appoint an individual or the NSWTG as manager of a protected person’s estate under s 25M of the Guardianship Act, the Tribunal is to be guided by the principles in section 4 of that Act. Among other things, the principles provide that the welfare and interests of the subject person is to be given paramount consideration. In addition, the Appeal Panel found that the “last resort principle” did not form the ratio or seriously considered dicta in any of the decisions of the Supreme Court on which the appellants relied (See [53]-[66]). The Appeal Panel found no error of law in the Tribunal’s decision to commit the management of the Mother’s estate to the NSWTG, noting that there was “an evident and intelligible justification for that decision” ([94]).
(iii) The Appeal Panel noted that to exercise the discretion under s 55(1)(b) of the NCAT Act to dismiss the applications for review of the 2021 EGA and revocation of the 2021 EPoA, the Tribunal was required to undertake a two-step process. First, to find that the proceedings are “frivolous or vexatious or otherwise misconceived or lacking in substance” and second, to decide whether to exercise the discretion to dismiss the proceedings under that sub-section. The Appeal Panel found that the Tribunal’s reasons did not disclose whether the Tribunal considered the first question, or if it did, into which category or categories the Tribunal found that the proceedings fell. A finding that the proceedings fell within one or more of those categories was a precondition to the exercise of the discretion to dismiss the proceedings under s 55(1)(b)([106]-[107]).
(iv) Further, the Appeal Panel noted that if it can be inferred from the reasons that the Tribunal found that the proceedings “lacked substance” in the sense that they “would be of no practical effect” (Davis v NSW Minister for Health [2023] NSWCATAP 211 at [53]), the Tribunal has applied the wrong test. The Appeal Panel noted that central to the Tribunal’s decision to dismiss the application appears to be the finding that “there was no need for any tribunal order … as there were no lifestyle decisions pending that could not be agreed upon in respect of [the appointer]”. However, whether in future the enduring guardians might or might not be able to work together in exercising their authority under the enduring guardianship appointment is a separate and discrete question to whether the proceedings to review that instrument would be of no practical effect. On review, it would have been open to the Tribunal to make orders to, among other things, confirm or to revoke the appointment of one of more of the enduring guardians. Those orders could not be characterised as having no practical effect ([108]-[110]).
(v) The Appeal Panel set aside the decisions of the Tribunal to dismiss the applications for review of the 2021 EGA and revocation of the 2021 EPoA and remitted the proceedings to the Tribunal for reconsideration. | YHY v YHZ [2024] NSWCATAP 117 Armstrong J, President, A Britton, Deputy President, J Le Breton, General Member – 20 June 2024
In Sum: The Appeal Panel found that YHZ’s father was not afforded procedural fairness, as the Tribunal failed to meet the requirements under s 38(5)(c) of the Civil and Administrative Tribunal Act to ensure there was a reasonable opportunity to be heard. Further, the Appeal Panel held that the Tribunal’s error was material, as there was a realistic possibility of a different result. The appeal was allowed.
Facts: YHZ is a young adult living with disability. YHZ resides in supported independent living accommodation. YHZ’s parents are divorced. Both parents play an important role in providing support to YHZ.
A guardianship order made on 10 November 2021 (‘2021 Order’) appointed both parents as joint guardians to make decisions for YHZ regarding “restrictive practices (chemical restraint)” for a period of two years.
On 3 November 2023, the mother applied to NCAT for review of the 2021 guardianship order (‘the Review’). She sought to be appointed as the sole guardian of YHZ. NCAT renewed and varied the 2021 Order and appointed the mother as sole guardian for YHZ, for a period of one year. This included the following functions: accommodation, health care, medical/dental consent, services, and restrictive practices (chemical and environmental restraints).
The father lodged a Notice of Appeal on 10 January 2024, seven days after the statutory deadline. NCAT exercised the discretion conferred by s 41 of the Civil and Administrative Tribunal Act to extend the time for filing the Notice of Appeal.
The father argued that he had been denied procedural fairness in the Review because, as a result of registry error, several of the lodged documents had not been included in the material before the assigned Member.
The primary issue in this appeal was whether NCAT made an error by failing to afford the father procedural fairness, and, if so, whether that error was material to NCAT’s review decision.
On 16 May 2024, NCAT allowed the appeal and remitted the review proceedings to the Guardianship Division to be reheard by a differently constituted Tribunal.
Held (allowing the appeal):
(i) The Appeal Panel was satisfied that NCAT failed to take “reasonably practicable” measures (as per s 38(5) of the CAT Act) to ensure that the father had a reasonable opportunity to be heard or otherwise have his submissions considered ([48]). As a result, NCAT failed to fully hear and consider the father’s case, and ‘the Tribunal failed to afford procedural fairness to the father’([48]).
(ii) The Appeal Panel stated that it was not required to ‘speculate on what the outcome would have been had the error not occurred’ ([50]). Rather, it is sufficient that the Appeal Panel was satisfied that the denial of procedural fairness ‘deprived the father of the realistic possibility of a different outcome’ ([50]). The Appeal Panel referred to Nathanson v Minister for Home Affairs [2022] HCA 226 at [33], where the High Court indicated that there will generally be a realistic possibility that a decision-making process could have resulted in a different outcome if a party was denied an opportunity to present evidence or relevant matters which are not already obvious ([50]).
(iii) On the material, the Appeal Panel was satisfied that there was a realistic possibility of a different result, had NCAT complied with s 38(5) of the CAT Act and therefore fully heard or considered the father’s case ([51]). The Appeal Panel held that, as a ‘matter of reasonable conjecture’, the Member may have been influenced by the submissions or evidence contained in the missing documents ([51]). Put otherwise, the Appeal Panel found that there was nothing in the material which provides a basis to consider ‘“the outcome would inevitably have been the same had the procedural unfairness not occurred”’ (LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610; [2024] HCA 12 ). Therefore, the Tribunal’s error was material. | YKD v YKE [2025] NSWCATAP 4 Coleman SC ADCJ (Principal Member), C Mulvey (Senior Member), M Bolt (General Member) – 6 January 2025 (decision date)
In Sum: This matter concerned an appeal brought by YKD (the July 2024 Appeal) against a decision of the Tribunal to dismiss two applications on the ground they were misconceived and lacking in substance for a review of guardianship orders and financial management orders in respect of YKG (YKD’s former de facto partner’s) (the May 2024 decision). In dismissing YKD’s application for review of guardianship and financial management orders made in respect of YKG, the Tribunal held that YKD had previously made numerous applications which relied on the same evidence he now sought the Tribunal to consider. That evidence had been considered by previous Tribunals. The Tribunal found that YKD was simply re-agitating the submissions made in his previous applications and that the appeal was misconceived or otherwise lacking in substance: 55(1)(b) Civil and Administrative Tribunal Act.
Facts: YKG is a 77-year-old woman who has resided in an aged care facility since 2018. In November and December 2023, YKD applied for a review of guardianship and financial management orders in respect of YKG. YKD’s application was dismissed by the Tribunal as lacking substance and being otherwise misconceived in May 2024 under s 55(1)(b) of the Civil and Administrative Tribunal Act. In July 2024, YKD appealed against the orders of the Tribunal.
Outcome: After reviewing the Tribunal’s Reasons for Decision at first instance in detail, and noting YKE’s submissions as the only contradictor of the appeal (the other parties either opposed the appeal and/or did not file submissions or participate in the hearing), the Appeal Panel reached the following conclusion:
(i) The appellant ‘under the guise of an appeal’ has ‘simply re-agitated the submissions which he unsuccessfully made before the Tribunal’: [40]. The Appeal Panel considered that ‘[j]ust as the proceedings before the Tribunal at first instance were misconceived, so [to] … was the Appellant’s appeal’: [40]. Accordingly, the appeal was dismissed.
While the Appeal Panel did not specifically refer to YKE’s submissions, they were characterised as ‘detailed, logical and relevant’ in response to the appellant’s appeal: [41]. Moreover, given the misconceived nature of the matter, the Appeal Panel stated that YKE should have the opportunity to seek an order for costs if they incurred any expenses in obtaining legal advice. | Supreme Court of New South Wales | Julie (a pseudonym) v John (a pseudonym) [2024] NSWSC 964 Meek J – 9 August 2024
In Sum: The Supreme Court of NSW set aside the decision of the Tribunal to make a financial management order, finding that the Tribunal fell into legal error on several bases. This included that the Tribunal failed to make a finding on the standing of the applicant, and had misapplied s 25G(a) of the Guardianship Act in concluding that the subject person is incapable of managing her own affairs.
Facts: Olivia is aged in her mid-80s and has a mild cognitive impairment. Her husband and her daughter Jane are deceased. Olivia has two other children, Julie and John. Julie is married to Robert. John is estranged from his mother, Julie and Robert.
Olivia and Julie are the directors of two family companies, Company A and Company B.
Company B is a corporate trustee for four discretionary trusts which are named after Olivia and her three children. Company B has four ordinary shares, all of which are owned by Olivia beneficially. Company A has two ordinary shares owned by Company B non-beneficially. Company A sells craft supplies and manages a property portfolio and other investments in the tens of millions of dollars. Company A generates income for the beneficiaries of the trusts.
For the last nine years, Julie has managed and continues to manage all company functions and is responsible for all company decisions. Olivia has not been involved in any significant decisions since 2018.
In October 2022 John lodged an application to the Tribunal seeking a financial management order in relation to Olivia.
On 14 December 2022 the Tribunal made an interim financial management order, committing the management of Olivia’s estate to the NSW Trustee and Guardian (the NSWTG), for a period of six months. On 22 March 2023 the Tribunal held a further hearing. The Tribunal was satisfied that Olivia is not capable of managing her own affairs and that it is in Olivia’s best interests that a financial management order be made. In coming to this conclusion, the Tribunal relied on the following findings:
Olivia is able to manage her “day to day” needs but is not capable of “weighing complex information” in relation to the management of Companies A and B. Olivia is “almost completely” reliant on Julie and Robert in the management of the companies. There is an imbalance in the benefits paid from Company A and the trusts, which were said to greatly advantage Julie and Robert’s family to the near exclusion of John and his family. As a result, Robert and John are at “loggerheads in relation to financial matters” and this has adversely impacted upon Olivia’s family relationships. There is doubt about whether Company A is being managed in Olivia’s best interests because of its generation of tax loses and the fact that tax returns had not been filed since 2019. There is a failure by the “estate” to respond to requests from the NSWTG as interim financial manager.
The Tribunal made an order committing the management of Olivia’s estate to the NSWTG. The Tribunal excluded from that order, part of Olivia’s estate consisting of two bank accounts and a credit card.
In June 2023, Julie lodged an appeal to the Supreme Court against the Tribunal’s decisions dated 14 December 2022 and 22 March 2023, seeking that the financial management orders be set aside. Julie relied on seven grounds of appeal. Meek J allowed the appeal on the issue of standing (Ground 7). His Honour then went on to make findings on each ground. Four out of the seven grounds of appeal were upheld (Grounds 2, 3, 6, and 7).
Held (allowing the appeal):
(i) Ground 7 – Standing: A financial management application may be made to the Tribunal “by any person who, in the opinion of the Tribunal, has a genuine concern for the welfare of the person who is the subject of the application”: s 25I(1)(b) of the Guardianship Act. Meek J noted that s 25I(1)(b) expressly states that the Tribunal must form an opinion that a person has a genuine concern for the welfare of the subject person. That opinion itself constitutes a jurisdictional fact because it is a precondition to the exercise of the power to make a financial management order ([168]). At the second hearing, Julie’s solicitor had raised concerns about “whether or not the application was made by a party with a genuine concern for the welfare of [Olivia]”. In cases before the Tribunal in which no issue as to standing has been raised, it is not unusual for the matter of standing not to be explicitly referred to in the Tribunal’s reasons for decision ([186]-[189]). However, in the circumstances of this case where the issue of standing or “genuine concern” under s 25I(1)(b) had been raised expressly as an issue before the Tribunal, the Tribunal was obliged to address the matter and make a finding on it. There is no reference to “genuine concern” in either sets of reasons by the Tribunal, nor was a finding that the applicant had standing “inherent” in its reasons ([191]-[193]). The finding on standing was material to the outcome; had the Tribunal considered the question of John’s standing, the decision that was in fact made could realistically have been different ([199]).
(ii) Ground 2 – Capability – legal test: To exercise the discretion to make a financial management order, the Tribunal must be satisfied that the person is not capable of managing their affairs: s 25G(a) of the Guardianship Act. Meek J held that in making the finding that Olivia was not capable of managing her affairs, the Tribunal applied a test more onerous than what s 25G(a) requires. The Tribunal stated that it must take into account Olivia’s formal role as a Director of two companies and the substantial assets in considering whether or not she is able to manage her own affairs in her best interests. However, at no stage did the Tribunal clearly identify the type of decisions that Olivia was called upon to make, nor identify the so-called "complex information" that she was purportedly required to weigh ([238]). Meek J stated at [243]: "Within the realm of what Olivia had to decide, a test of "weighing complex information" seems to me to have applied an inappropriately high threshold to the statement of the test in terms of whether Olivia is "reasonably able" to manage her own affairs "in a reasonably competent fashion", in particular having regard to the support systems available to her: Re P at [307], [309]; CJ v AKJ at [38]."
(iii) Ground 3 – Reasonableness - Meek J held that the Tribunal’s finding that Olivia was not capable of managing her own affairs lacks an evident and intelligible justification: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [76] ([254). Whilst the Tribunal found that Olivia is able to manage her “day to day” needs, it appeared to equate Olivia’s apparent lack of knowledge of certain matters relating to her finances and the companies as a lack of capability on her part to understand and deal with such matters. Meek J stated that “as a matter of logic, there is no such equivalence” ([257]). This was particularly so as the Tribunal appeared to substantially accept that Olivia has had little involvement in the running of the businesses. Further, the Tribunal had failed to identify the kinds of decisions that Olivia was called upon to make. Meek J stated that the Tribunal could not properly draw conclusions about Olivia’s capability without focusing upon exactly what she was (supposedly) not capable of doing ([258]).
(iv) Ground 6 – Bests interests: Meek J held that the Tribunal’s conclusion that it was in Olivia’s best interests for a financial management order to be made lacked an evident and intelligible justification ([302]). There was no reasonable basis for concluding that the “imbalance of payments” had itself contributed to the “estrangement and isolation” of John and his family from other family members, and that John’s side of the family has had benefits to which they were accustomed “significantly reduced”, and which had “adversely impacted upon family relationships” ([298]-[299]). Rather, there was a rational explanation for the imbalance of payments, namely that Julie had been heavily involved in company A’s operations, while John was not, having been dismissed from his employment with Company A in 2018. Further, the Tribunal’s reliance on the accountant’s failure to file tax returns, the unanswered requests of the NSWTG and the tax losses of Company A was misplaced. The Tribunal’s reasoning from those matters to its conclusion that it is not for the benefit of Olivia for the present arrangements to remain in place is not evident ([300]).
(v) Meek J rejected the plaintiff’s submissions that the Tribunal failed to afford the plaintiff procedural fairness (Grounds 1 and 4), and that the Tribunal failed to have regard to the principle in s 4(b) of the Guardianship Act (Ground 5). | AW v WW (No 2) [2024] NSWSC 146 Kunc J – 23 February 2024 (decision date)
In Sum: The plaintiff appealed against a decision of the Guardianship Division. The Supreme Court dismissed the appeal as the summons did not raise a question of law. The Court constructed cl 14(1) of Pt 6 Sch 6 of the Civil and Administrative Act to require a ‘pure question of law’. The plaintiff’s summons did not present a pure question of law, instead, it invited a review of the merits.
Facts: The plaintiff, AW, is the only child of the defendant, Mrs W, an 89-year-old widow whose husband died in 2015.
In 2021, Mrs W appointed KB (a retired solicitor) and KS (a solicitor) as her guardians jointly and severally. Similarly, Ms W revoked an appointment of AW as her enduring attorney and appointed JM (an accountant).
In November 2022, the Guardianship Division dismissed a guardianship application and financial management application brought by AW in respect of Mrs W.
Due to her existing arrangements, the Tribunal concluded that there was no need for it to appoint a guardian. Likewise, the Tribunal was not satisfied that Mrs W lacked the capacity to manage her financial affairs.
AW appealed the decision as of right. AW claimed that the Tribunal had failed to address evidence and facts relevant to Mrs W’s cognitive function.
The question before the Supreme Court was whether the appeal raises a ‘question of law’ under the Civil and Administrative Act.
The Supreme Court considered the following questions:
(i) What is the proper construction of ‘question of law’ in cl 14(1) of Pt 6, Sch 6 of the Civil and Administrative Act?
(ii) Does the summons disclose a pure question of law?
Issues and Outcome:
(i) The Court accepted that, in the context of the appeal, a ‘question of law’ means a pure question of law. That is, it is not a mixed question of law and fact, or anything else. As a matter of statutory construction, the Court considered that ‘[t]he overall scheme of clause 14 is clear from its terms that the path to an appeal to [the Supreme Court] is a narrow one … [which] bespeaks the most confined construction of the words “question of law”, being a pure question of law’: [53].
(ii) The Court held that the question posed in the amended summons does not disclose a pure question of law. Rather, the Court considered that ‘[p]roperly understood, [the summons] invites a review of the merits’: [58]. Specifically, it was held that the challenge, ‘while put with skill and precision, really amounted to a submission that the Tribunal had come to the wrong conclusion on the facts’: [59]. Moreover, the Court emphasised that the Tribunal ‘is not bound to refer to every item of evidence in framing its reasons’ and that the Court will be ‘slow to find that a Tribunal has erred for failing to consider a specific circumstance or reach a specific conclusion … when the tribunal’s reasons appear to be comprehensive’: [62] citing Castro v Minister for Immigration and Ethnic Affairs [1997] FCA 40 at 8; [63]. | | CXZ v Children's Guardian [2020] NSWCA 338 Basten JA (dissenting), McCallum JA, Simpson AJA – 17 December 2020
This case is not directly relevant to the Guardianship Division but is included because it contains a useful summary of M v M 166 CLR 69; [1988] HCA 68, which gives guidance about the assessment of risk in circumstances where allegations about an alleged perpetrator have not been found proven. M v M concerned an application under the Family Law Act 1975 (Cth) by an estranged husband for custody of his daughter where it was alleged that he had sexually abused her.
In Sum: The Court of Appeal granted leave to the applicant to appeal against a decision of the primary judge in the Common Law Division of the Supreme Court which found the Tribunal had erred in its assessment of whether the applicant posed a risk of safety to children when determining whether a “working with children check clearance” ought to be granted.
Facts: In 2014, the applicant applied to the Children’s Guardian for a “working with children check clearance” pursuant to s 13 of the Child Protection (Working with Children) Act 2012 (NSW) ('the Act'). In 2016, the Children’s Guardian refused the application on the basis that the applicant posed a risk to the safety of children. The allegations against the applicant upon which the Children’s Guardian relied on in its assessment included:
(i) criminal offences dating from 1995 of theft, drug possession and assaulting police;
(ii) a 2009 charge of assault (of which the applicant was acquitted on the ground of self-defence);
(iii) incidents during the course of the applicant’s work as a security officer;
(iv) assertions of domestic violence towards the applicant’s first and second wives;
(v) allegations of threatening behaviour in 2002 and 2003 in relation to the applicant's contact with his children;
(vi) allegations that, as a child, the applicant had sexual relations with his younger brother and had ‘inappropriately touched’ his older sister;
(vii) evidence concerning the applicant’s relationships with his children, including an accusation by his daughter that he had ‘shov[ed] her down the stairs’; and
(viii) evidence of behavioural and mental health issues on the part of the applicant’s son.
In 2017, the applicant applied to NCAT for review. In February 2018, NCAT set aside the decision of the Children’s Guardian and substituted a decision to grant the clearance. In March 2018, the Children’s Guardian filed an appeal in the Supreme Court. Walton J upheld the appeal and, in August 2019, the decision of NCAT was set aside and the matter remitted to NCAT.
In M v M, the High Court put forward a ‘three-step approach’ to determining whether a risk to the safety of the child existed. The approach required the decision maker to:
(i) if the allegation was found to be true – to take the misconduct into account and give it the weight considered appropriate;
(ii) if the allegation was found to be untrue – then the allegation would not ‘count’ against the person against whom it was made; and
(iii) if the Tribunal could not reach a decision as to whether the allegation was true or false – any remaining or ‘lingering’ suspicion still ought to be taken into account and ascribed weight as considered appropriate.
Held (allowing the appeal):
(i) Issues 1 and 2 (issue of principle and the three-step process): It was held, per Simpson AJA with McCallum J agreeing, that the proposed appeal raised an issue of principle sufficient to warrant an appeal. Their Honours held that the primary judge had misconceived the test from M v M as requiring the Tribunal to assess each allegation individually using the three-stage approach outlined above [57]. Simpson AJA noted that there was a multiplicity of allegations that could not be factually determined as per the three-stage approach and, in those cases, the tribunal was still required to determine whether the applicant for a clearance posed a risk to children [57], including by giving consideration to the strength of the evidence supporting the allegations; however, allegations that were neither proved nor disproved still required the Tribunal to consider and reach a conclusion as to whether there was ‘sufficient possibility’ that a risk arose, and whether a clearance would be therefore denied [58]. Conversely, it was clear that the primary judge had proceeded to analyse the Tribunal’s reasoning through the lens of the three stages of the M v M test and was therefore in error [75]. Nonetheless, the error was not material to the outcome of the appeal. Simpson AJA and McCallum J rejected the appeal based on issues 1 and 2.
Basten JA (dissenting) disagreed that there was an issue of principle and considered that the primary judge had not misapplied the test from M v M. Nonetheless, His Honour noted that the test ought to be characterised as a ‘single process’ rather than a three-stage test.
(ii) Issue 3 (the question of remaining or ‘lingering’ doubt): Simpson AJA with McCallum JA and Basten JA agreeing held that the language of ‘lingering doubt’ was unhelpful in cases involving multiple disparate allegations against the applicant and ought to be eschewed in favour of the actual test (being, whether there was a possibility of misconduct as opposed to any ‘lingering doubt’ in relation to the misconduct) [Simpson AJA, at 79; Basten JA at 7e]. The applicant, however, had failed to establish that the primary judge had used this approach, hence there was no error established. The appeal would be rejected based on this issue alone.
(iii) Issue 4 (the ‘accumulated weight’ of the allegations): The applicant argued that the primary judge had erred in finding that the Tribunal had failed to evaluate the ‘accumulated weight’ of the allegations [82]. Simpson AJA, with McCallum JA agreeing, considered the primary judge was indeed in error in making this finding and found the Tribunal had carefully considered all allegations and had properly discharged its function [83-85].
Basten JA was of the view that the primary judge had applied the correct test, hence, this was not in issue for His Honour.
(iv) Leave was granted to appeal against the orders of the primary judge dated 4 September 2019 and the appeal was allowed based on ground (4) of the application for leave to appeal. The orders of the primary judge were set aside. The Children’s Guardian was ordered to pay the applicant’s costs of the application. |
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