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.
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
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 Act1987 (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…
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
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.