Re ZY, a protected person

[2013] NSWSC 831

Supreme Court

New South Wales

Medium Neutral Citation:

Re ZY, a protected person [2013] NSWSC 831

Hearing dates:

21 June 2013

Decision date:

21 June 2013

Jurisdiction:

Equity Division - Protective List

Before:

Lindsay J

Decision:

1. A grant of leave under the Guardianship Act, 1987 NSW, s 67(1)(b) refused.

2. Summons dismissed.

3. No order as to costs.

Catchwords:

ADMINISTRATIVE LAW - administrative tribunals - statutory appeals from administrative authorities to courts - applicant sought leave to advance full appeal from orders made by the Guardianship Tribunal of New South Wales - whether such leave should be granted.

Legislation Cited:

Guardianship Act 1987 NSW

Cases Cited:

P v D1 [2011] NSWSC 257 at [58] and [59] K v K [2000] NSWSC 1052 at [15]

Texts Cited:

-

Category:

Principal judgment

Parties:

ZY, a protected person
A son of the protected person (Plaintiff)
Guardianship Tribunal of NSW (First Defendant)
NSW Trustee and Guardian (Second Defendant)
Public Guardian (Third Defendant)
A daughter of the protected person (Fourth Defendant)

Representation:

WJ Carney (Plaintiff)
M Dall Poss, NSW Crown Solicitor's Office (First Defendant)
R Stormont, NSW Trustee & Guardian (Second and Third Defendants)
Fourth Defendant, in person

File Number(s):

2012/00401233

Publication restriction:

Case Suppressed

Judgment - EX TEMPORE

1. The plaintiff applies orally for a grant of leave under s 67(1)(b) of the Guardianship Act 1987 NSW to advance an appeal from orders made by the Guardianship Tribunal of New South Wales (the first defendant) on the basis of a full appeal, not limited to questions of law.

1. I have previously ruled that the three grounds of appeal relied upon by the plaintiff today for the purpose of grounding an appeal based upon a question of law (within the meaning of s 67(1)(a) of the Act) are insufficient, in fact, to sustain the appeal.

1. The plaintiff's application for leave under s 67(1)(b) is made orally despite his failure, before today, to file an amended summons, seeking such a grant of leave, following a grant by Windeyer AJ on 22 May 2013 of leave to amend the summons.

1. The plaintiff supports his application for leave under s 67(1)(b) today by reliance upon statements of principle made by Slattery J in P v D1 [2011] NSWSC 257 at [58] and [59] and by Young J in K v K [2000] NSWSC 1052 at [15].

1. I accept the statements of principle made by Young and Slattery JJ in those cases.

1. The plaintiff contends that his application should be granted because the Guardianship Tribunal, in this case, proceeded in an unorthodox manner moving towards an unfair result.

1. On my review of the materials to which I have been referred by the legal representatives of the plaintiff, I find myself in the position that I cannot accept that contention.

1. On the face of the Tribunal's reasons for decision, and in the broader context of material brought to attention by the plaintiff's legal representatives, the Tribunal appears to have proceeded in an entirely orthodox manner, and the outcome of its deliberations appears to be well within the realm of decision-making responsibility that Parliament has entrusted to it.

1. In these circumstances, I decline to grant the leave sought by the plaintiff by reference to s 67(1)(b).

1. In the circumstances as they have unfolded today, and having regard in particular to the rulings that I have made about the unavailability of grounds of appeal within the scope of s 67(1)(a), I order that the summons be dismissed.

1. Having regard to the position taken by the other defendants (each of whom has entered a submitting appearance), and the absence of any legal costs having been incurred by the fourth defendant in the context of the current proceedings, the appropriate course, which I take, is to make no order as to costs.

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