P v D1 & Ors [2011] NSWSC 257

P v D1 & Ors [2011] NSWSC 257

The first three proposed appeals were out of time and no further time was allowed because the plaintiff's delay was inadequately explained, lengthy, potentially prejudicial to the second and third defendants who had administered the fifth defendant's affairs under the existing orders, and of no demonstrated utility. The July 2009 appeal was within time but raised no question of law and required leave. Leave was refused because the plaintiff challenged factual findings without showing legal error, procedural unfairness, unfair fact-finding, or fresh evidence satisfying the required criteria; the evidence did not undermine the Tribunal's findings that the fifth defendant needed a guardian,...

Jurisdiction
Australia
Judgment Date
04 April 2011
Procedural Posture
Application for Leave to Appeal Under Guardianship Act 1987, S 67 From Decisions of the Guardianship Tribunal / Principal Judgment
Outcome
Further time to appeal the 19 June 2006, 9 January 2007 and 29 January 2009 Guardianship Tribunal decisions refused; leave to appeal the 10 July 2009 decision refused; plaintiff ordered to pay defendants' costs.
Legal Topics
['leave to Appeal' 'extension of Time' 'guardianship Orders' 'financial Management Orders' 'fresh Evidence on Appeal' 'questions of Law']
['mental Health' 'guardianship' 'civil Procedure'] ['leave to Appeal' 'extension of Time' 'guardianship Orders' 'financial Management Orders' 'fresh Evidence on Appeal' 'questions of Law']

Case Brief

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Procedural Posture

Application for Leave to Appeal Under Guardianship Act 1987, S 67 From Decisions of the Guardianship Tribunal / Principal Judgment

Legal Issues

  1. 1 ["Whether the plaintiff's applications for leave to appeal against the Guardianship Tribunal decisions of 19 June 2006, 9 January 2007 and 29 January 2009 were instituted within time under Guardianship Act 1987, s 67(2)." 'Whether further time should be allowed for the plaintiff to appeal against those three Tribunal decisions.' "Whether the plaintiff's appeal against the Tribunal decision of 10 July 2009 involved a question of law or required leave under Guardianship Act 1987, s 67(1)(b)." "Whether the plaintiff's grounds and recent evidence justified leave to appeal against the Tribunal's 10 July 2009 decision."]

Ratio Decidendi

The first three proposed appeals were out of time and no further time was allowed because the plaintiff's delay was inadequately explained, lengthy, potentially prejudicial to the second and third defendants who had administered the fifth defendant's affairs under the existing orders, and of no demonstrated utility. The July 2009 appeal was within time but raised no question of law and required leave. Leave was refused because the plaintiff challenged factual findings without showing legal error, procedural unfairness, unfair fact-finding, or fresh evidence satisfying the required criteria; the evidence did not undermine the Tribunal's findings that the fifth defendant needed a guardian,...

Court Disposition

Further time to appeal the 19 June 2006, 9 January 2007 and 29 January 2009 Guardianship Tribunal decisions refused; leave to appeal the 10 July 2009 decision refused; plaintiff ordered to pay defendants' costs.

Orders

  • ["The plaintiff's applications for leave to appeal against the Guardianship Tribunal decisions made on 19 June 2006, 9 January 2007 and 29 January 2009 were not instituted within time under Guardianship Act s 67(2)(b)." 'Further time will not be allowed under Guardianship Act s 67(2)(c).' 'The application for leave...