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

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).

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.

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.

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2011] NSWADTAP 5
Decision Date: 01 March 2011

CaseChat Overview and Summary

In this case, FX sought leave to appeal a decision made by the NSW Trustee and Guardian, which was heard in the Supreme Court of New South Wales. FX had previously been involved in a case where a decision was made regarding their eligibility for certain benefits. FX was dissatisfied with the outcome and sought to appeal the decision, however, the appeal was lodged beyond the prescribed time limit, leading to an application for leave to appeal out of time.

The legal issue before the court was whether FX could be granted leave to appeal out of time. This involved examining whether there were any exceptional circumstances that justified the delay in lodging the appeal, and whether the appeal had a reasonable prospect of success. The court needed to balance the principles of finality and the importance of adhering to procedural requirements.

The court considered the application for leave to appeal out of time and examined the reasons for the delay and the merits of the appeal. It found that FX had not provided a satisfactory explanation for the delay, nor had they demonstrated any exceptional circumstances that warranted an extension of time. The court also considered the merits of the appeal and concluded that it did not have a reasonable prospect of success. As a result, the court refused leave to appeal out of time and dismissed the application.

No further orders were made by the court in relation to this application. The decision stands that FX's appeal was lodged out of time and the extension of time to lodge the appeal is refused.

Orders

Orders of the court

FX's appeal was lodged out of time and extension of time to lodge the appeal is refused.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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