JF v Public Guardian

[2007] NSWADTAP 5

Appeal Panel - External

CITATION:	JF v Public Guardian & anor [2007] NSWADTAP 5
PARTIES:	APPELLANT JF FIRST RESPONDENT Public Guardian SECOND RESPONDENT Guardianship Tribunal
FILE NUMBER:	068017
HEARING DATES:	11/01/2007
SUBMISSIONS CLOSED:	11 January 2007
DATE OF DECISION:	17 January 2007
BEFORE:	Hennessy N - Magistrate (Deputy President)
CATCHWORDS:	Guardianship order - making - Leave to appeal on other grounds - Leave to appeal out of time
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	2006/2942 and 2005/6660
DATE OF DECISION UNDER APPEAL:	09/15/2006
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Guardianship Act 1987
CASES CITED:	K v K [2000] NSWSC 1052; S v S [2001] NSWSC 146; Re R [2000] NSWSC 886.
REPRESENTATION:	APPELLANT In person FIRST RESPONDENT No appearance SECOND RESPONDENT E Cho, solicitor
ORDERS:	1. Leave for the appeal to proceed on grounds other than a question of law is refused; 2. Appeal dismissed

Section 126 of the Administrative Decisions Tribunal Act 1997 applies to this decision.
Section 126 provides
(1A) This section applies only to the following:

(a) proceedings in the Community Services Division of the Tribunal,

(b) appeals to an Appeal Panel from a decision made by the Tribunal in the Community Services Division,

(b1) proceedings in relation to an external appeal made under section 67A of the Guardianship Act 1987 or section 21A of the Protected Estates Act 1983,

(b2) proceedings in relation to a reviewable decision made under the Guardianship Act 1987 or the Protected Estates Act 1983

(c) such other proceedings (or class or classes of proceedings) as may be prescribed by the regulations for the purposes of this section.


(1) A person must not, except with the consent of the Tribunal, publish or broadcast the name of any person:

(a) who appears as a witness before the Tribunal in any proceedings, or

(b) to whom any proceedings before the Tribunal relate, or

(c) who is mentioned or otherwise involved in any proceedings before the Tribunal,


whether before or after the proceedings are disposed of.
Maximum penalty: 10 penalty units or imprisonment for 12 months, or both.
(2) This section does not prohibit the publication or broadcasting of an official report of the proceedings that includes the name of any person the publication or broadcasting of which would otherwise be prohibited by this section.
(3) For the purposes of this section, a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

REASONS FOR DECISION

Introduction

1 JF is an elderly man who lives in a nursing home. A clinical nurse consultant with an Aged Care Team applied to the Guardianship Tribunal for a guardianship and a financial management order in relation to him. On 20 February 2006 the Guardianship Tribunal heard the applications and made an interim financial management order for 6 months and ordered that the management of JF’s estate be committed to the Protective Commissioner. The Guardianship Tribunal also ordered that JF be placed under guardianship for 6 months and gave the Public Guardian the function of determining where JF was to reside. The matter came back before the Guardianship Tribunal on 16 August 2006. On that occasion the Tribunal renewed the guardianship order for 5 weeks and made another interim financial management order reappointing the Protective Commissioner for 5 weeks. Both matters were adjourned to allow a hearing to be conducted in Orange rather than by phone from Sydney. On 15 September 2006 the Tribunal renewed the guardianship order and appointed the Public Guardian for 3 years. The Tribunal also made a financial management order appointing the Protective Commissioner as the manager of JF’s estate.

2 JF has appealed against the decisions made on 15 September 2006. An external appeal may be made as of right on any question of law or by leave on any other ground: ADT Act, s 118B(1). JF has not appealed on a question of law so he requires the Tribunal’s permission before his appeal can go ahead: Administrative Decisions Tribunal Act 1997 (ADT Act), s 118B(1).

Parties and representation

3 On 21 December 2006, the day this matter was initially set down for hearing, the Tribunal received a letter from JF saying that he could not attend the hearing. The Registry contacted him by phone and he indicated that he wished to participate in a hearing by phone. That was arranged and the matter was heard on 11 January 2007. The Public Guardian indicated that he did not wish to present a case or make submissions. Ms Cho represented the Guardianship Tribunal in a limited capacity consistent with the principles outlined by the High Court in R v Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13 at 35.

Issues

4 The first issue is whether the Tribunal should accept the appeal even though it was lodged out of time. If it does extend the time, the second issue is whether JF should be given leave to appeal on a ground other than a question of law. These are both interlocutory issues and may be determined by a presidential judicial member sitting alone: ADT Act, s 24A(2)(a).

Should the appeal be accepted out of time?

5 Initially, JF purported to lodge an appeal in mid October, however it was not in the correct form and was returned to him by letter of 22 November 2006. On 27 November 2006, JF filed an appeal in the correct form. The general rule is that an appeal must be made within 28 days after the decision-maker provides the party with written reasons: Administrative Decisions Tribunal Act 1997, s 118B(2)(a). The Tribunal has an unfettered discretion to extend time for the lodgement of an appeal: ADT Act s118B(2)(a). The kinds of factors that are relevant when deciding whether to extend time are the length of the time that has expired since written reasons were provided, the reasons for the delay, any prejudice to the parties in accepting the appeal out of time and the merits of the appeal.

6 JF attempted to lodge an appeal within the 28 day period required and re-lodged promptly after being advised that it was not in the correct form. The appeal was finally lodged a little over two months after the Guardianship Tribunal’s decision and there is no prejudice to any party if the appeal is accepted. In those circumstances, the appeal is accepted even though it was lodged out of time.

Should permission be given for the appeal to proceed?

7 JF has a right to appeal on a question of law. He did not identify any question of law either in his written application or when he participated in the preliminary hearing by phone. JF has also applied for the Tribunal to give leave for the appeal to be heard on grounds other than a question of law. He said in his Notice of Appeal that he disagrees with the medical assessments given to the Guardianship Tribunal and to the finding of the Guardianship Tribunal that he is not capable of managing his own affairs. He also said that the Protective Commissioner had paid people money when he did not owe them that money. Finally, JF said that a woman with whom he is acquainted withdrew $80,000 from his bank account without his permission. He was not sure exactly when this occurred.

8 In accordance with the decision of Young J in K v K [2000] NSWSC 1052, one basis for granting leave would be if the Guardianship Tribunal has gone about its fact finding process in an unorthodox manner or in a manner which is likely to produce an unfair result. The Guardianship Tribunal’s decision sets out the oral and documentary evidence available to it and comes to a reasoned decision on the basis of that evidence. I cannot discern anything unorthodox or unfair from the written reasons for decision and nothing of that nature was brought to my attention. JF merely disagreed with the Guardianship Tribunal’s findings. That is not a sufficient basis for allowing the appeal to proceed: K v K [2000] NSWSC 1052; S v S [2001] NSWSC 146 and Re R [2000] NSWSC 886.

9 If JF disagrees with particular decisions made by the Protective Commissioner in relation to the manner in which his money is being spent, he may apply separately to the Administrative Decisions Tribunal for a review of those decisions. Those decisions cannot be reviewed in the context of an external appeal from decisions of the Guardianship Tribunal.

Orders

1. Leave for the appeal to proceed on grounds other than a question of law is refused.

2. Appeal dismissed.