St v NSW Trustee and Guardian

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…