P v D1 & Ors

Case [2011] NSWSC 257


Supreme Court


New South Wales

  • Amendment notes
Medium Neutral Citation: P v D1 & Ors [2011] NSWSC 257
Hearing dates:22 June, 14, 15, 16, 22 & 23 September 2010
Decision date: 04 April 2011
Before: Slattery J
Decision:

The plaintiff's application for leave to appeal against three decisions of the Guardianship Tribunal made on 19 June 2006, 9 January 2007, and 29 January 2009 was not instituted within time under Guardianship Act s 67(2)(b). Further time will not be allowed under Guardianship Act s 67(2)(c). The application for leave to appeal against a fourth decision of the Guardianship Tribunal dated July 2009 is within time. But leave to appeal is necessary, as the application does not involve a question of law. Leave to appeal is refused. Plaintiff ordered to pay defendants' costs.

Catchwords: MENTAL HEALTH - guardians- applications for leave to appeal against four decisions of the Guardianship Tribunal - application brought under Guardianship Act 1987 s67 - HELD - applications out of time in respect of three Guardianship Tribunal decisions - no basis to exercise discretion allowing further time for leave to appeal in respect of these three decisions - none of the appeals for which the plaintiff seeks leave involve a question of law under Guardianship Act s 67(1)(a) - no grant of leave to appeal in respect of the fourth Tribunal decision.
Legislation Cited: Guardianship Act 1987, ss 3(2), 25P, 31, 57, 67(1), 67(2)
Supreme Court Act 1970, s 75A
Uniform Civil Procedure Rules 2005, r 50.
Cases Cited: Akins v National Australia Bank (1994) 34 NSWLR 155
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
C v C [2001] QSC 126
IZ V JC, JB and JA [2009] NSWADT AP 4
K v K [2000] NSWSC 1052
Re R [2000] NSWSC 886
Retarded Children's Aid Society v Day [1978] ICR 437
The Australian Gaslight Co v The Valuer-General (1940) 40 SR (NSW) 126
Category:Principal judgment
Parties: Plaintiff [Not published]
First Defendant [Not published]
Second Defendant [Not published]
Third Defendant [Not published]
Fourth Defendant - Guardianship Tribunal
Fifth Defendant [Not published]
Representation: Counsel:
Plaintiff - n/a
Second and Third Defendants - P. Jeffriess
Fifth Defendant - D.M.Roberts
Counsel:
Plaintiff - Hal Ginges, Hal Ginges and Company
Second and Third Defendants - John McCallum Boyd Boag, Everingham Solomons
Fifth Defendant - Michael McHugh, The Law Company
File Number(s):2009/46

Judgment

  1. In these proceedings a daughter seeks principal relief that she become her mother's guardian and that she, the daughter, displace her two brothers' existing appointments in this role. But the threshold legal issue is whether the daughter should be given leave under Guardianship Act 1987 (NSW), s 67 to appeal against four decisions of the Guardianship Tribunal ("the Tribunal"). These decisions make or affirm her brothers' appointment as their mother's guardians. Her brothers contend: first, that her application is out of time; and second, that her application does not raise any question of law, so…

Continue reading P v D1 & Ors

Sign in free to access the full text

Details
AGLC
P v D1 & Ors [2011] NSWSC 257
Case
[2011] NSWSC 257
Decision Date

CaseChat Overview and Summary

The case of P v D1 & Ors involves an application by P, who seeks leave to appeal against four decisions of the Guardianship Tribunal. These decisions were made under the Guardianship Act 1987. The primary concern of the court was to determine whether the plaintiff's applications for leave to appeal were within the time limits prescribed by the legislation and whether the court should exercise its discretion to allow an extension of time. Additionally, the court had to assess whether the appeals involved questions of law as required by the statute.

The central legal issues before the court were whether the plaintiff's applications for leave to appeal were made within the statutory timeframe and whether the court had any discretion to extend that time. Furthermore, the court needed to ascertain whether the appeals involved questions of law as stipulated under the Guardianship Act 1987 s 67(1)(a). These issues were critical to determining the admissibility and validity of the plaintiff's appeals.

The court found that the applications for leave to appeal were out of time in respect of three of the Guardianship Tribunal decisions. Consequently, the court held that there was no basis to exercise its discretion to allow an extension of time for these three decisions. Additionally, the court determined that none of the appeals for which the plaintiff sought leave involved a question of law under the Guardianship Act s 67(1)(a). As a result, the court did not grant leave to appeal in respect of the fourth Tribunal decision. The plaintiff's applications for leave to appeal were dismissed.

Orders

Orders of the court

Full text does not contain this section.

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.