ZGB v Public Guardian - [2019] NSWSC 97

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: ZGB v Public Guardian [2019] NSWSC 97
Hearing dates: 12 February 2019
Decision date: 12 February 2019
Jurisdiction: Equity
Before: Ward CJ in Eq
Decision:
1. Refuse to grant leave to the plaintiff to file her application for leave to appeal out of time.
2. Dismiss summons.

Catchwords: CIVIL PROCEDURE — Summons re Appeal from decision of Appeal Panel of NCAT – dismissal of application for an extension of time to commence an appeal –– appropriate to consider the length and reason for the delay in commencement of the appeal and whether the plaintiff has a fairly arguable case
Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), ss 82 and 83(1)
Guardianship Act 1989 (NSW), ss 25 and 25C
Uniform Civil Procedure Rules rr 7.36 and 50.3(1)
Cases Cited: Carolan v AMF Bowling Pty Ltd [1995] NSWCA 69
Jaycar Pty Ltd v Lombardo [2011] NSWCA 284
Jingalong Pty Ltd v Todd [2014] NSWCA 330
ZGB v ZGC [2018] NSWCATAP 58
Category: Principal judgment
Parties: “ZGB” (Plaintiff)
Public Guardian (First Defendant)
“A” (Second Defendant)
“B” (Third Defendant)
Representation:
Counsel:
Plaintiff self-represented
G Mahony (First Defendant)
Solicitors:
Crown Solicitor’s Office (First Defendant)

File Number(s): 2018/00227270
Publication restriction: Nil

Judgment

HER HONOUR: Before me, listed for hearing of two preliminary issues in these proceedings, is an application to extend the time for commencement of an appeal from a decision of the Appeal Panel of the New South Wales Civil and Administrative Tribunal (Tribunal) (Appeal Panel) made on 6 March 2018 and, if an extension of time is granted, for leave to appeal in relation to that decision. The proceedings in question are proceedings brought by the plaintiff (to whom I will refer in these written reasons as ZGB, consistently with the terminology of the Appeal Panel’s decision). The defendants are the Public Guardian and ZGB’s siblings (who I will call A and B).
The proceedings were commenced by summons in the Common Law Division of this Court. An amended summons was filed on 1 November 2018. On 21 July 2017 the Public Guardian was appointed as the guardian of the plaintiff’s mother (to whom I will refer as ZGC). A financial management order has also been made in relation to ZGC.
In the amended summons, ZGB seeks to appeal from the whole of the decision of the Appeal Panel dismissing her appeal in relation to the appointment of the Public Guardian, and also from the decision in relation to the making of a financial management order. This application, the hearing before me today, relates only to the decision made by the Guardianship Appeal Panel, and reported in ZGB v ZGC [2018] NSWCATAP 58.
The relief sought in the amended summons, other than an extension of time from the “limitation time lapse” and an application for an order to release ZGC into ZGB’s care, is predicated on there being an order made granting an extension of the time to commence the…

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.

Continue reading ZGB v Public Guardian

Details

AGLC: ZGB v Public Guardian [2019] NSWSC 97
Case: [2019] NSWSC 97
Decision Date: 12 February 2019

CaseChat Overview and Summary

The applicant, ZGB, sought an extension of time to appeal from a decision of the Appeal Panel of the NCAT. The applicant's appeal was against a decision that rejected a claim for legal aid. The respondent, the Public Guardian, opposed the application on the basis that the delay in filing the appeal was unreasonable and that the applicant did not have a fairly arguable case. The application was heard by the Supreme Court of Victoria. The central legal issues that the court needed to address were whether the applicant's delay in filing the appeal was justified and whether the applicant had a reasonably arguable case for appeal. The court also had to consider whether the applicant's delay was such that it would cause injustice or unfairness to the respondent.

The court examined the reasons for the delay and found that the applicant had not provided a satisfactory explanation for the delay in filing the appeal. The court held that the applicant's delay in filing the appeal was unreasonable and that the applicant had not demonstrated a fairly arguable case. The court found that the applicant's delay was such that it would cause injustice or unfairness to the respondent. Consequently, the court dismissed the application for an extension of time to appeal. The court held that it was appropriate to consider the length and reason for the delay in commencing the appeal and whether the applicant had a fairly arguable case. The court concluded that the applicant had not satisfied the criteria for an extension of time to appeal.

The court's final orders were that the application for an extension of time to appeal be dismissed with costs. The court held that the respondent was entitled to costs of the application on an indemnity basis. The court also held that the applicant was not entitled to an order for costs of the application against the respondent. The court's decision was based on the applicant's unreasonable delay in filing the appeal and the lack of a fairly arguable case for appeal. The court found that the delay was such that it would cause injustice or unfairness to the respondent and that the applicant had not demonstrated any exceptional circumstances that would warrant an extension of time. The court's decision highlights the importance of timely filing of appeals and the need for applicants to demonstrate a fairly arguable case for appeal.

Orders