ANR v Public Guardian [2013] NSWADTAP 12

Administrative Decisions Tribunal New South Wales Medium Neutral Citation: ANR v Public Guardian [2013] NSWADTAP 12 Hearing dates: 15 February 2013 Decision date: 15 February 2013 Before: Deputy President Magistrate N Hennessy Decision: Appeal lodged out of time is not accepted Catchwords: APPEAL - lodged out of time - length of delay - reasons for delay - consequences if appeal not accepted - likelihood of success - prejudice to other parties Legislation Cited: Administrative Decisions Tribunal Act 1997 Category: Principal judgment Parties: ANR (Appellant) Public Guardian (First Respondent) ANS (Second Respondent) Guardianship Tribunal (Decision Maker) Representation: No appearance (Appellant, First Respondent and Second Respondent) Ms A Sprouster, legal officer (Decision Maker) File Number(s): 128018 Publication restriction: S 126 of the Administrative Decisions Tribunal Act 1997 applies Decision under appeal Date of Decision: 2012-06-12 00:00:00 Before: Guardianship Tribunal File Number(s): C/50169; Matter No. 2012/3462

ex tempore reasons for decision 1HER HONOUR: On 18 December 2012 Mr ANR filed a notice of appeal with the Tribunal appealing against a decision of the Guardianship Tribunal made in June 2012. The Guardianship Tribunal's decision was to make a guardianship order in relation to his son but for that order to be for a period of eight months only. The Guardianship Tribunal's decision gave the following reason for the short order: "The Tribunal decided to make an order for a shorter period than is usually made and made the order reviewable in eight months. It may well be that if basic services are by that time in place for Mr ANR's son a consideration could be given to full guardianship returning to Mr ANR (or the order simply lapsing)". 2In the notice of appeal Mr ANR gives as a reason for his late application that he has been unable to gain legal representation. He also cites ill health. The period of delay is some four months. Although the Guardianship Tribunal's decision was given on 12 June 2012, Mr ANR did not receive the reasons for the decision until 1 August 2012. Under s 118B(2) of the Administrative Decisions Tribunal Act 1997, Mr ANR has twenty-eight days after the decision maker provides written reasons to lodge an appeal. 3As I said, Mr ANR lodged his appeal on 18 December 2012, nearly four months out of time. The Tribunal may extend time and has an open discretion to do so. In determining whether to extend time I take into account the length of the delay, the reasons for the delay, the consequences to Mr ANR if his appeal is not accepted, the likelihood of success of the appeal and any prejudice to any other party. 4In terms of the length of the delay, it is nearly four months which, given that an appeal must generally be lodged within one month, is a reasonably lengthy time. In relation to the reasons for the delay as I have said Mr ANR merely states, without providing any particulars, that he has been in ill health and has not been able to find a lawyer. 5The consequences if the appeal is not accepted are not particularly significant. That is because I understand from the lawyer for the Guardianship Tribunal, Ms Sprouster, that this matter is listed again before the Guardianship Tribunal for review of the guardianship order on 8 April 2013. 6At that hearing the guardianship order will be reviewed and Mr ANR will have an opportunity to attend and participate and make any submissions he wishes to make. I have quoted a passage from the Guardianship Tribunal's reasons which say that if services have been put in place and they are satisfactory then it may well be that Mr ANR could again take responsibility for making decisions on behalf of his son. 7The last two matters I take into account are the likelihood of success of the appeal and prejudice to any other party. There is no other party who stands to be prejudiced if this appeal is not heard. Mr ANR has not provided any information in relation to any such prejudice to his son. 8In relation to the likelihood of success of the appeal, Mr ANR does not have legal representation. He says that his appeal is on two questions of law: (1) that the Tribunal failed to give him an adequate opportunity to present his case and, (2) that the Guardianship Tribunal failed to give him an adequate opportunity to respond to any relevant information which was against him. But Mr ANR has not particularised those grounds in any way. He has not said how he was not given an adequate opportunity to present his case, nor has he identified the relevant information to which he was prevented from responding. As the grounds of appeal stand, the likelihood of success of the appeal is very low indeed. 9Given all those factors, my decision is not to accept the appeal out of time. I will ensure that Mr ANR is advised of that decision. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 March 2013