Court of Appeal Supreme Court New South Wales

• Medium Neutral Citation: AHB v NSW Trustee and Guardian [2014] NSWCA 40
• Hearing dates: 5 March 2014
• Decision date: 05 March 2014
• Before: Macfarlan JA at [1]; Gleeson JA at [8]; Leeming JA at [9]

Decision

(1) The Amended Summons is stood over for directions before the Registrar on a date to be appointed by him.

(2) The appellant is ordered to pay the respondent's costs thrown away by the adjournment.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

• Catchwords: PRACTICE AND PROCEDURE - adjournment application - inadequate material in support - no issue of principle
• Legislation Cited: Administrative Decisions Tribunal Act 1997, s 119
• Category: Procedural and other rulings
• Parties: AHB (Appellant); NSW Trustee and Guardian (Respondent)
• Representation: Counsel: Appellant (Self-represented and not present); J Emmett (Respondent); Solicitors: Appellant (Self-represented); Crown Solicitor's Office (Respondent)
• File Number(s): CA 2013/286294

Decision under appeal

• Citation: AHB v NSW Trustee and Guardian [2012] NSWADTAP 37
• Date of Decision: 2012-08-08 00:00:00
• Before: N Hennessy Deputy President, L Goodchild Judicial Member, B Thomson Non-Judicial Member
• File Number(s): 129011

Judgment

1 MACFARLAN JA: Listed before the Court for hearing today is an Amended Summons naming a protected person as appellant and a person to be known as AHB as her tutor. As the respondent has pointed out in written submissions, there are procedural difficulties in the proceedings, not least of them related to the identity of the appellant. The respondent sensibly recognises however that the substance of the proceedings in this Court is an appeal by AHB against the decision dated 8 August 2012 of the Administrative Decisions Tribunal Appeal Panel ([2012] NSWADTAP 37) that appeal being limited by the legislation in force at the relevant time (Administrative Decisions Tribunal Act 1997, s 119) to an appeal on a question of law.

2 AHB is the son of the aged protected person. In 2011, the Public Guardian was appointed the protected person's guardian with the functions of access and accommodation, with the respondent being appointed as the protected person's financial manager. In the Administrative Decisions Tribunal AHB challenged the respondent's decision to sell the protected person's home in Gymea Bay.

3 AHB is an unrepresented litigant. Yesterday, he sent by email to the Registrar of the Court a medical certificate and a document indicating that a related matter in the Guardianship Division of the NSW Civil and Administrative Tribunal was adjourned on 28 February 2014 for a period of approximately eight weeks.

4 Based on these documents he sought an adjournment of the hearing fixed for today. In his email he says that he is "quite ill with influenza" but the medical certificate is inadequate to establish his unfitness to attend the hearing today. It simply states that AHB "is receiving Medical Treatment and is unfit for work/school from 5/03/2014 to 6/03/2014 inclusive due to a medical condition". The Court will not ordinarily act on such a formulaic document and will require an explanation on oath from the medical practitioner of the illness and the reasons for the applicant's inability to attend Court.

5 Similarly, AHB has not established the justification for an adjournment on the other basis advanced by him, namely, the adjournment of the guardianship proceedings. To obtain an adjournment a party is ordinarily required to attend Court and explain precisely why that adjournment is warranted. AHB has not done this. Nevertheless it does seem from the nature of the matter before the Guardianship Division that the present appeal may become otiose as a result of the decision that may be made there concerning the protected person's future care and accommodation.

6 With considerable reluctance, and notwithstanding the respondent's opposition, the Court has decided in these circumstances to grant the adjournment sought by AHB but he should understand that he cannot assume that a similar indulgence will be allowed in the future if he does not properly establish a ground for adjournment. This matter was fixed for hearing some considerable time ago and its presence in the List has prevented other matters being listed for hearing. The Court will not permit its List to be disrupted in this way without good reason.

7 I propose that the Amended Summons be stood over for directions before the Registrar on a date to be appointed by him and that AHB be ordered to pay the respondent's costs thrown away by the adjournment.

8 GLEESON JA: I agree.

9 LEEMING JA: I also agree.

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Decision last updated: 05 March 2014