St v NSW Trustee and Guardian

[2010] NSWADTAP 13

Appeal Panel - External

CITATION:

ST v NSW Trustee and Guardian [2010] NSWADTAP 13

PARTIES:

APPELLANT
ST

FIRST RESPONDENT
NSW Trustee and Guardian

SECOND RESPONDENT
SU

FILE NUMBER:

108001

HEARING DATES:

19 February 2010

SUBMISSIONS CLOSED:

19 February 2010

EXTEMPORE DECISION DATE:

19 February 2010

BEFORE:

Hennessy N - Magistrate (Deputy President)

CATCHWORDS:

External appeal, leave to appeal out of time

DECISION UNDER APPEAL:

2008/6184 , 2008/6185

FILE NUMBER UNDER APPEAL:

C/40306

DATE OF DECISION UNDER APPEAL:

02/11/2009

LEGISLATION CITED:

Administrative Decisions Tribunal Act 1997

CASES CITED:

NZ v Commissioner of Police, New South Wales Police (GD) [2008] NSWADTAP 23

REPRESENTATION:

APPELLANT
H Paul, solicitor

FIRST RESPONDENT
No appearance

SECOND RESPONDENT
No appearance

DECISON MAKER
E Cho, legal officer

ORDERS:

Leave to appeal out of time refused.

REASONS FOR DECISION

1 HER HONOUR: I am going to make a decision. My decision is to refuse leave to appeal out of time and I base that on the fact that the general rule is that an appeal must be lodged within 28 days of the Guardianship Tribunal giving a party reasons for decision. That is set out in s 118(B) of the Administrative Decisions Tribunal Act 1997. This appeal was lodged some eleven months out of time, in February 2010. The Guardianship Tribunal’s decision was handed down in February 2009.

2 The principles that I need to apply to determine whether to grant leave to appeal out of time, have been set out in several previous decisions of the Tribunal including NZ v Commissioner of Police, New South Wales Police (GD) [2008] NSWADTAP 23. Relevant considerations include the length of the delay, the reasons for the delay, the diligence in lodging the application after it came to notice that there were circumstances justifying an appeal, the nature of the decision below, any prejudice to the other party and the merits of the grounds of appeal.

3 The length of the delay, in this case, is some eleven months which is eleven times the period allowed, which is one month. The reasons for the delay have been provided by Mr Paul, solicitor for the appellant. They were that he was not instructed until May 2009 and that they were considering various options only one of which was an appeal against the Guardianship Tribunal’s decision. On 4 September 2009 Mr Paul wrote to the Guardianship Tribunal applying for a transcript. On 15 October 2009 the Guardianship Tribunal responded setting out their policy that transcripts are not provided unless a party has appealed to the Administrative Decisions Tribunal or the Supreme Court. As no such appeal had been lodged, a transcript of the hearing would not be available.

4 Despite that very clear refusal, Mr Paul wrote again on 21 October 2009 requesting a transcript. That letter was met with a reply from the Guardianship Tribunal dated 11 November 2009 in which the Tribunal again advised Mr Paul of its policy and the fact that a transcript would not be provided. After receiving that letter Mr Paul explained that because of the death of his wife he was not in the office for some period and it was not until February 2010 that he lodged an appeal on behalf of his client.

5 The next consideration is the diligence of the appellant in appealing after she became aware of an entitlement to appeal. It is routine for the Guardianship Tribunal to advise parties when providing them with reasons for decision that they have 28 days in which to lodge an appeal. That advice was reiterated by the Guardianship Tribunal in their correspondence with Mr Paul in October and November. Consequently, at least as of October 2009, Mr Paul was on notice of the time limit for lodging an appeal. Despite that, and even taking into account his wife’s death, the period of a further three months before lodging an appeal is quite lengthy.

6 The nature of the decision below is that it is a refusal of an application to make a guardianship or financial management order in relation to ST’s mother, SU.

7 The basis of that refusal, in each case, was the Tribunal’s finding that SU had capacity to make decisions for herself, both about her every day life matters including accommodation and also about her financial affairs. The merits of an appeal are said by Mr Paul to be substantial. The main basis for the appeal is the fact that the Guardianship Tribunal spoke to SU in the absence of the other parties in order to satisfy themselves of her capacity to make decisions for herself. Mr Paul’s argument is that if he had access to the transcript he would be able to determine whether the parties were afforded procedural fairness in relation to that evidence. That is the reason he has requested the transcript.

8 It is not my role in the context of making this decision to decide whether the appeal will be successful. Nevertheless, the merits of the appeal are relevant. According to its reasons for decision, by talking to SU alone, the Guardianship Tribunal was attempting to satisfying itself of her capacity to make decisions and to confirm or otherwise the opinions of the medical experts. It is not a foregone conclusion that any appeal on a procedural fairness ground would be successful. I also appreciate that while there is no significant prejudice to the other parties if the appeal were to go ahead, it is noteworthy that 12 months has now passed since the Guardianship Tribunal made its original decision.

9 As the issue for the Guardianship Tribunal was, in general terms, the capacity of SU, any finding today about her capacity in February 2009 is of little relevance. For all those reasons, especially the length of the delay and the fact that Mr Paul was squarely on notice of the Guardianship Tribunal’s policy back in October 2009, I refuse leave for the appeal to proceed out of time.