FX v NSW Trustee and Guardian (External)

[2011] NSWADTAP 5

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:	FX v NSW Trustee and Guardian (External) [2011] NSWADTAP 5
Hearing dates:	On the papers
Decision date:	01 March 2011
Before:	S Higgins, Deputy President
Decision:	FX's appeal was lodged out of time and extension of time to lodge the appeal is refused.
Catchwords:	Leave to appeal out of time
Legislation Cited:	Administrative Decisions Tribunal Act 1997 Family Provisions Act Guardianship Act 1987 NSW Trustee and Guardian Act 2009 NSW Trustee and Guardian Regulation 2008 Protected Estates Act 1983 Protected Estates Regulation 2003
Cases Cited:	FX v NSW Trustee and Guardian (GD) [2009] NSWADTAP 61 FW and FX v Protective Commissioner [2009] NSWADT 36 Lupevo Pty Ltd t/a Ampol Nabiac v Bree [2002] NSWADTAP 9 NZ v Commissioner of Police, New South Wales Police (GD) [2008] NSWADTAP 23 Sawires v Commissioner of Police [2010] NSWADTAP 68 ST v NSW Trustee and Guardian [2010] NSWADTAP 13
Category:	Interlocutory applications
Parties:	FX (Appellant) NSW Trustee and Guardian (First Respondent) XO (Second Respondent) Guardianship Tribunal (Third Respondent)
Representation:	FX (Appellant in person) K Byrnes of Byrnes & Cox Lawyers for the Second Respondent
File Number(s):	108009
Decision under appeal	Date of Decision: 2010-05-21 00:00:00 Before: C Fougere, Legal Member S Carlill, Professional Member L Porter, Community Member File Number(s): Guardianship Tribunal C/22541

reasons for decision

1. FX, the appellant, has lodged an appeal from the decision of the Guardianship Tribunal, made on 21 May 2010, in which the Guardianship Tribunal confirmed its 2002 financial management order in relation to the estate of FX's mother, FW. FX's appeal is made pursuant to section 67A of the Guardianship Act 1987 and sub-section 118B(1) of the Administrative Decisions Tribunal Act 1997 (the ADT Act).

1. The second respondent, OX, is the daughter of FW and sister of FX. She has contended that FX's appeal was not lodged within the time prescribed under paragraph 118B(2)(a) of the ADT Act (i.e. within 28 days of FX having received the reasons for decision of the Guardianship Tribunal) and that the Appeal Panel should not extend the time in which FX is to lodge his appeal because the appeal would be futile.

1. FX contends that he did not lodge his appeal out of time and even if he did lodge it out of time, he has a reasonable explanation for the delay and that his appeal is not futile.

1. The decision whether to allow an appeal to proceed out of time involves the exercise of an 'interlocutory function' of the Tribunal: see paragraph 24A(1)(d) of the ADT Act. For the purpose of exercising an interlocutory function, the Appeal Panel may be constituted by one presidential judicial member: see paragraph 24A(2)(a) of the ADT Act. I was allocated to determine this interlocutory/preliminary matter and on 8 December 2010, at a directions hearing, I determined that the issues for determination in this interlocutory/preliminary matter could be adequately determined on the papers in accordance with section 76 of the ADT Act. I also made directions for the filing and serving of material relevant to this interlocutory/preliminary matter.

1. Written submissions were filed and served by FX and the solicitor for XO in accordance with my directions.

1. The issue for determination on this interlocutory/preliminary matter is as follows:

(a)   was FX's appeal lodged out of time? This is a factual issue; and

(b) in the event FX's appeal was lodged out of time, should the Tribunal exercise its discretion under paragraph 118B(2)(b) of the ADT Act and extend that time?

1. For the reasons set out below I have found that FX did lodge his appeal out of time and determined that the Tribunal should not extend the time for the lodging of his appeal as he has failed to identify any grounds of appeal over which the Tribunal has jurisdiction. That is, his appeal is misconceived or futile.

Was FX's appeal lodged out of time?

1. It is not disputed that the Guardianship Tribunal gave its decision on 21 May 2010. However, it was not until 3 August 2010 that the Guardianship Tribunal published its reasons for decision and sent a copy to FX and XO.

1. FX's appeal first came before the President at a directions hearing on 25 November 2010. At the directions hearing, the solicitor for XO raised the question about FX's appeal not having been lodged within the prescribed time. At the direction of the President, on 30 November 2010, the Registrar provided the parties with a short report (chronology) of events involving FX's filing of his Notice of Appeal. In summary that chronology stated as follows:

27 August 2010 - the Registry received, through the post, an application from FX which appeared to be an application seeking a stay and an application for review of a decision of the NSW Trustee and Guardian;

31 August 2010 - the Registry spoke to FX to clarify his application. The Registry returned his application under the cover of a letter explaining what was required if he wanted to have a decision reviewed and informing him that a filing fee of $68.00 had to be paid;

16 September 2010 - the Registry received, through the post, a Notice of Appeal from FX. The Registry returned this application under the cover of a letter, which informed him that he was required to provide a copy of the decision of the Guardianship Tribunal that he was appealing together with his Notice of Appeal. He was also informed that he had to provide additional copies of his Notice of Appeal and that he was required to pay a filing fee of $280.00, unless a decision was made to waive that fee. An application for waiver of the fee was also included with the letter;

28 September 2010 - the Registry received, through the post, from FX, a Notice of Appeal, an Application for Review and a cheque for $68. The Registry again telephoned FX to clarify the nature of the application he was seeking to make to the Tribunal. From that conversation, the Registry understood FX was seeking to appeal the decision of the Guardianship Tribunal of 3 August 2010 and he was seeking a stay of that decision. In light of this, the Registry returned the material (including the cheque) to FX and forwarded him a Notice to Appeal form, an Application for an Interlocutory Order form and other information in regard to external appeals to the Tribunal;

6 October 2010 - the Registry received, from FX, a Notice of Appeal and an application for waiver of the filing fee;

11 October 2010 - the Registry informed FX that it had determined not to waive the filing fee and that his appeal would not be filed until the filing fee was paid; and

25 October 2010 - Registry received a cheque for the filing fee from FX and his Notice of Appeal was filed.

1. An appeal is not lodged with the Tribunal until it is filed and this does not occur until the filing fee is paid or a decision is made to waive that fee. On the basis of the above chronology, the essence of which was not disputed by FX, his appeal was lodged on 25 October 2010 when he paid the fee that was due and payable on the filing of his appeal. This date was clearly outside the prescribed 28 days from the time FX received a copy of the written reasons for decision of the Guardianship Tribunal. That period would have ended on about 8 September 2010, if FX had received the written reasons for decision of the Guardianship Tribunal on, or about 10 August 2010.

1. Accordingly, I find that FX did not file his appeal within the time prescribed under paragraph 118B(2)(a) of the ADT Act.

Principles relevant to the exercise of the discretion to extend time within which to appeal

1. It is well accepted that the factors relevant to the Tribunal's exercise of its discretion to extend the time within which an appellant is to lodge an appeal is as follows (see Sawires v Commissioner of Police [2010] NSWADTAP 68 at [5], ST v NSW Trustee and Guardian [2010] NSWADTAP 13, NZ v Commissioner of Police, New South Wales Police (GD) [2008] NSWADTAP 23 at [7] and Lupevo Pty Ltd t/a Ampol Nabiac v Bree [2002] NSWADTAP 9 at [7]):

(a)   the reason for the failure to lodge the appeal within the prescribed time;

(b)   the extent of the appellant's knowledge of the relevant statutory provisions;

(c)   the adequacy of the information conveyed to the appellant at the time the decision was notified to him or her, both as to the reasons for decision and of the appellant's entitlement to appeal;

(d)   the length of the delay in lodging the appeal;

(e)   the diligence shown by the appellant in lodging the appeal after it came to his or her notice that there were circumstances justifying an appeal;

(f)   the nature of the decision below and the consequences of the decision upon the appellant's rights;

(g)   the possible prejudice to the respondent; and

(h)   the merits of the appeal.

1. From the material provided, I accept that there was no undue delay in FX lodging his appeal. I also accept that there was some confusion about the nature of his initial application he forwarded to the Registry of the Tribunal. It is unnecessary for me to make any finding as to where that confusion arose as, in my view, the factors relevant to this interlocutory/preliminary matter are the nature of the decision below and the merits of FX's appeal. I have dealt with each of these factors below.

The nature of the decision below and the consequence of the decision on FX's rights

1. The decision of the Guardianship Tribunal concerned FX's application, of 25 November 2009, seeking revocation of the financial management order the Guardianship Tribunal had made, on 17 April 2002, in regard to the estate of his mother, FW. At the time of making this order the Guardianship Tribunal also appointed the Protective Commissioner (now the NSW Trustee and Guardian) to manage the estate of FW.

1. FX is the sole carer of his mother who continues to live in her home, which she owns. FX and his mother also jointly own a rural property. FX's mother owns the farm business, which is conducted from this rural property by FX. For some time FX was in negotiations with the NSW Trustee and Guardian, to purchase his mother's interest in the rural property so that she could benefit from a one-off Commonwealth draught affected farmer relief scheme. It would appear that FX became concerned about the manner in which the NSW Trustee was managing his mother's estate, aspects of which involved property over which he had an interest.

1. In his application to the Guardianship Tribunal, FX had sought the appointment of another person to act as the private manager of his mother's estate. XO objected to the appointment of this other person. Subsequently, the other person withdrew his nomination to act as the private manager of FW's estate. This left FX as the only alternative to the NSW Trustee and Guardian to manage his mother's estate.

1. The Guardianship Tribunal found that there was no basis to revoke the financial management order it made in 2002 as there was no evidence of FW having regained the capacity to manage her financial affairs. This does not appear to be disputed by FX.

1. Accordingly, the issue for determination by the Guardianship Tribunal was whether it was in FW's best interest to vary the financial management order by replacing the manager of her estate (i.e. from the NSW Trustee and Guardian to FX). For a number of reasons the Guardianship Tribunal found that it was not in FW's interest to vary the financial management order and it affirmed the appointment of the NSW Trustee and Guardian as the manager. These reasons included the difficult relationship that had developed between FX and the NSW Trustee and Guardian, who would continue to oversee the management of FW's estate if TX were appointed to manage her estate, and the fact that FX's financial interests were to some extent intertwined with those of his mother.

1. Whether the reasons relied on by the Guardianship Tribunal were correct or incorrect is not material for current purposes. The issue is whether FX's rights are affected by reason of the decision of the Guardianship Tribunal.

1. FX's rights must be considered in the context of his mother's estate being the subject of a financial management order under the Guardianship Act 1987. His rights under that Act in respect to the financial management order remain the same. Similarly, his rights to seek review of day to day decisions of the NSW Trustee and Guardian, in regard to his mother's estate, remain the same: see section 62 of the NSW Trustee and Guardian Act 2009 and clause 43 of the NSW Trustee and Guardian Regulation 2008. It is noted that FX has previously sought review of decisions of this nature under similar provisions of the repealed Protected Estates Act 1983 (section 28A) and the repealed Protected Estates Regulation 2003 (clause 9): see FX v NSW Trustee and Guardian (GD) [2009] NSWADTAP 61 and FW and FX v Protective Commissioner [2009] NSWADT 36.

The merits of the appeal

1. In his Notice of Appeal, FX identified the following as questions of law that arose from the decision of the Guardianship Tribunal:

1) Power of attorney was produced on 4/3/2010

2) Carers Recognition Bill 2010'

1. In my view, neither of the abovementioned matters raised by FX give rise to a question of law. The Carers (Recognition) Act 2010 was of no relevance to FX's application before the Guardianship Tribunal. I accept, from the material provided by FX with his Notice of Appeal, that his mother had signed a General Power of Attorney, on 6 May 1999, in which she appointed him as her attorney. Even assuming FX had provided this document to the Guardianship Tribunal, in my view, having regard to the reasons for decision of the Guardianship Tribunal, the existence and contents of this document would not have altered the decision the Guardianship Tribunal had reached. That decision was based on events that had occurred since 2002, after the financial management order had been made.

1. In his written submissions of 5 January 2011, FX gave a lengthy explanation as to why his appeal should proceed. He said that the NSW Trustee and Guardian had failed to supply him with any documents regarding the finalisation of his mother's estate. He said that in 2001, on the assurance of the then Office of the Protective Commissioner (the Commissioner), that they had the expertise to deal with the issues in regard to the finalisation of his mother's estate, he had agreed to the appointment of the Commissioner to manage his mother's estate. He said that the Commissioner had a lot of trouble from XO and her solicitor in finalising his mother's estate and that these difficulties remained outstanding. The difficulties he explained arose from the distribution of the assets of his father's estate. His father died in 1999. XO was the executor of his estate and the main beneficiary under his will. In 2001, FW having commenced proceedings under the Family Provisions Act in the Supreme Court, was successful in obtaining orders that she be given specific assets/money from her husband's estate.

1. In his written submissions FX alleges that XO and her solicitor have acted improperly in regard to the handling of his father's estate and in complying with the orders made by the Supreme Court. This alleged improper conduct he asserts has been to his mother's detriment in that she has not received what she was entitled to receive from his father's estate and should be fully investigated. He said he has complained about the alleged improper conduct of XO and her solicitor to the Law Society and the Legal Services Commissioner. This dispute he said was ongoing.

1. In regard to the NSW Trustee and Guardian, FX asserts, that he and the Public Guardian before him, did not follow-up matters, as they should have, in regard to his mother's entitlements from his father's estate.

1. In my view, on the basis of the material provided by FX, his primary concern is that a full investigation be undertaken of the alleged improper conduct of his sister, OX, and her solicitor in regard to the distribution of his father's estate. Other than noting that FX and his sister were in dispute and had been for some time, the substance of that dispute was not a matter of any relevance to the issues that the Guardianship Tribunal was required to determine. As I have mentioned, what was in issue before the Guardianship Tribunal was whether it was in the best interest of FW for the management order, be varied by appointing FX as her private manager. FX has pointed to no errors in the Guardianship Tribunal's reasons for decision that were relevant to this question.

1. Accordingly, I find that FX's appeal, as articulated by him in his Notice of Appeal and in his written submissions, is either misconceived or has no merit.

Conclusions

1. On the basis of my findings above, I find that it is not appropriate to exercise the discretion to allow FX further time to lodge his appeal from the decision of the Guardianship Tribunal. Accordingly, I order: FX's appeal was lodged out of time and extension of time to lodge the appeal is refused.

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Decision last updated: 06 June 2011