SY v Public Guardian

[2025] NSWCA 148

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

SY v Public Guardian [2025] NSWCA 148

Hearing dates:

4 July 2025

Decision date:

08 July 2025

Before:

Leeming JA; Adamson JA

Decision:

(1)   Substitute “Public Guardian” as the first respondent in lieu of “NSW Trustee and Guardian”.

(2)   Refuse leave to appeal.

(3)   Make no order as to costs.

Catchwords:

APPEAL — whether leave to appeal ought be granted from decision of primary judge dismissing appeal from NSW Civil and Administrative Tribunal — no issue of principle, question of public importance or serious injustice demonstrated

GUARDIANSHIP — Public Guardian appointed to VY — decision reviewable in October 2025 — grant of leave not warranted

Legislation Cited:

Civil and Administrative Tribunal Act 2013 (NSW), Sch 6, cl 14

Guardianship Act 1987 (NSW), ss 3, 25, 65, 77

Cases Cited:

Cheng v Motor Yacht Sales Australia Pty Ltd t/as The Boutique Boat Company (2022) 108 NSWLR 342; [2022] NSWCA 118

GR v Secretary, Department of Communities and Justice [2023] NSWCA 239

Category:

Procedural rulings

Parties:

SY (Applicant)
Public Guardian (First Respondent)
VY (Second Respondent)

Representation:

Counsel:
Self-represented (Applicant)
B J Dean (First Respondent)
No appearance (Second Respondent)

Solicitors:
Not applicable (Applicant)
Crown Solicitor’s Office (First Respondent)
Not applicable (Second Respondent)

File Number(s):

2025/36456

Publication restriction:

Publication or broadcasting of the names of the applicant or the second respondent is prohibited: Civil and Administrative Tribunal Act 2013 (NSW), s 65

 Decision under appeal 

Court or tribunal:

Supreme Court

Jurisdiction:

Equity - Protective List

Citation:

SY v Public Guardian [2024] NSWSC 1669

Date of Decision:

24 December 2024

Before:

Lindsay J

File Number(s):

2023/462819

JUDGMENT

1. THE COURT: SY, the applicant (the plaintiff in the Court below) seeks leave to appeal from the orders made by Lindsay J (the primary judge) on 24 December 2024 in the Equity Division of this Court (the Court below) dismissing his amended summons seeking review of orders made by the New South Wales Civil and Administrative Tribunal in its Guardianship Division (NCAT) on 12 April 2024: SY v Public Guardian [2024] NSWSC 1669. On that date, NCAT confirmed the Public Guardian (the first respondent in this Court and the first defendant in the Court below), in the office of guardian for VY (the second respondent in this Court and the second defendant in the Court below), one of the applicant’s sons, for a period of 18 months from the date of the order.

2. SY commenced the proceedings in NCAT in 2023 which arose from the circumstance that VY was hospitalised in Belgrade, Serbia in a psychotic state. SY sought a guardianship order in respect of VY with a view to facilitating his return to Australia. On 14 December 2023, NCAT made an order appointing the Public Guardian as VY’s guardian for a period of four months. The guardianship order was a limited guardianship order which gave the Public Guardian custody of VY to the extent necessary to carry out the functions of advocacy and health care.

3. SY challenged NCAT’s order by filing a summons in the Court below on 21 December 2023, which was subsequently amended on 9 February 2024. At a directions hearing before the primary judge on 19 February 2024 and 9 April 2024, the primary judge noted that VY appeared before the Court below (he was a party to the proceedings as second defendant) and informed the Court that he did not need a guardian but that if a guardian were to be appointed, his guardian ought not be SY.

4. On 12 April 2024, as referred to above, NCAT made the following orders:

The guardianship order for [the second defendant] made on 14 December 2023 has been reviewed. The order now is as follows:

1      The Public Guardian is appointed as the guardian.

2      This is a continuing guardianship order for a period of 18 months from 12 April 2024.

3      This is a limited guardianship order, giving the guardian(s) custody of [the second defendant] to the extent necessary to carry out the functions below.

FUNCTIONS:

4      The Guardian has the following functions:

(a)   Accommodation

To decide where [the second defendant] may reside.

(b)   The Guardian may authorise others, including members of NSW Police and the Ambulance Service of New South Wales to:

(i)   take [the second defendant] to a place approved by the Guardian.

(ii)   keep them at that place.

(iii)   return them to that place should leave it.

(c)   Health care

(i)   To decide where [the second defendant] may receive.

(d)   Services

To make decisions about services to be provided to [the second defendant].

(e)   Travel

To make decisions about whether or not [the second defendant] can travel to any place outside Australia.

(f)   Passport

To make a decision about whether or not the passport of [the second defendant] should be surrendered to the Guardian or some other authority the Guardian nominates pending a decision by the Guardian concerning travel.

CONDITIONS:

5      The condition of this order is:

(g)   Standard Condition

In exercising this role the Guardian shall take all reasonable steps to bring [the second defendant] to an understanding of the issues and to obtain and consider their views before making significant decisions.

5. On 24 December 2024, the primary judge dismissed SY’s challenge to those orders.

6. In the primary judge’s reasons, his Honour noted at [32] that “[SY’s] desire to be clothed with the office of a guardian for the second defendant is a product, in part, of his frustration in not being (according to his perception) listened to by public health professionals.”

7. His Honour noted, at [39], that SY’s right to appeal to this Court from an order of NCAT was limited, unless leave were granted, to a question of law (cl 14(1)(b) of Sch 6 of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act)) and that none had been identified. Nor had leave to appeal been sought. The primary judge also considered whether the Court could intervene in its parens patriae jurisdiction. However, his Honour said, at [40], that this jurisdiction ought only be exercised in “exceptional circumstances” and ought not be used to subvert “the routine procedures of a specialist tribunal, such as is NCAT sitting as the Guardianship Division”.

8. Nonetheless, the primary judge found that NCAT’s decision was correct for the following reasons which were identified at [43] as follows:

(a)   as both [SY] and the Public Guardian contend, [VY] is a person in need of a guardian.

(b)   the strong preference of [VY] is that [SY] not be appointed as his guardian.

(c)   without reflection on the good character of [SY], he is not, at the present time, a suitable person to be appointed as [VY’s] guardian.

(d)   as his son’s carer and a “significant other”, [SY] is free to provide information about [VY’s] circumstances to public health authorities and to make representations to them concerning [VY’s] treatment.

9. The primary judge concluded:

46   [SY] is not, at the present time, a suitable person to be appointed as [VY’s] guardian because, not only is such an appointment unwelcome to the son, but [SY] has (by active criticism of public health professionals charged with treating the second defendant) rendered himself persona non grata with many health professionals with whom a guardian may be required to engage.

47   The Public Guardian is by far better placed than is [SY], by reason of his own conduct, to make decisions affecting [VY] which require an objective and orderly engagement with public health professionals.

48   The fact that, on his own evidence, [SY] has established a good working relationship with [VY’s] current “treating doctor” (so described in the current community treatment order affecting [VY]) demonstrates that he does not need to occupy the office of the guardian in order to be heard in the treatment of his son.

10. In support of his application for leave, SY, who appeared on his own behalf, submitted that NCAT and the primary judge were wrong to refuse his application to be VY’s guardian as he was eminently suitable to carry out that role. SY relied on his own medical expertise, which he submitted enabled him to ensure that VY obtained necessary and appropriate treatment for his health conditions, as well as his close relationship with VY. SY submitted that, to the extent to which VY had expressed a desire that his father not be appointed as his guardian, this was a manifestation of “inversion of feelings”. SY explained that this expression refers to the phenomenon that, when in the grip of psychosis, sufferers hate those whom they normally, when in a non-psychotic state, love the most. SY submitted that the parlous state of psychiatric services in New South Wales made it particularly important that he be appointed VY’s guardian for the maximum period of 5 years.

11. SY’s submissions to this Court largely replicated his submissions to the primary judge, which were rejected by his Honour.

12. In order to obtain a grant of leave to appeal, the applicant must demonstrate an issue of principle, a question of general public importance or a reasonably clear injustice going beyond something which is merely arguable: Cheng v Motor Yacht Sales Australia Pty Ltd t/as The Boutique Boat Company (2022) 108 NSWLR 342; [2022] NSWCA 118 at [15] (Bell CJ).

13. SY has failed to identify either an issue of principle or a question of general public importance. It is clear from SY’s submissions to this Court and to the Court below that he considers there to be a “reasonably clear injustice” arising from his having been passed over as a guardian for VY in favour of the Public Guardian. Indeed, he submitted that VY’s aversion to SY’s appointment as his guardian was evidence that VY loved him the most since VY’s illness caused such inversion of feelings. However, whether something amounts to a reasonably clear injustice is to be determined objectively. We are not persuaded that there is any reasonably clear injustice beyond that which is merely arguable.

14. The orders of NCAT which are ultimately sought to be challenged in this Court will be reviewed by NCAT on 12 October 2025. Section 25(4) of the Guardianship Act 1987 (NSW) requires notice of the review to be served on each party to the proceedings. Thus, as SY was the applicant in NCAT, he is entitled to receive notice of a review and will be entitled to be heard at that review: GR v Secretary, Department of Communities and Justice [2023] NSWCA 239 [109]-[111] (Adamson JA), [178] (Basten AJA) and [209] (Griffiths AJA). If SY wishes to re-agitate his application to be appointed as VY’s guardian, he can do so on that occasion before NCAT, which is empowered to make a decision on the merits.

15. For these reasons, the Court considers that leave ought be refused.

16. Mr Dean, who appeared on behalf of the Public Guardian, did not seek the costs of the leave application. However, he sought that the name of the first respondent be corrected to comply with ss 3 and 77 of the Guardianship Act.

17. The Court has referred to SY and VY by pseudonyms in deference to the prohibition of names of persons involved in proceedings in the Guardianship Division for which s 65 of the NCAT Act applies. Although s 65 does not in terms apply to the proceedings in the Court below or the application for leave in this Court (but only to appeals in the Guardianship Division of NCAT or internal appeals against such decisions), it was considered that it was preferable to use a pseudonym, at least for VY. However, as SY is VY’s father, it is necessary to use a pseudonym for SY in order to avoid identifying VY.

Orders

18. The Court makes the following orders:

1. Substitute “Public Guardian” as the first respondent in lieu of “NSW Trustee and Guardian”.

2. Refuse leave to appeal.

3. Make no order as to costs.

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Decision last updated: 08 July 2025