CCP v NSW Trustee and Guardian

Background

1. The FMO over the affairs of the applicant's brother was made on 18 March 2014 or 2 April 2014 by the Guardianship Tribunal. Both dates are mentioned in the material filed in this case. The applicant's brother died on 18 July 2014.
2. The Tribunal also appointed the Public Guardian to make decisions about the applicant's brother's accommodation, health care, medical and dental treatment and access to services.
3. I do not have a copy of the decision making that order and appointment.
4. The applicant claims that the respondent did not manage her brother's financial affairs properly, allowing $7,167.17 of unauthorised debit transactions from a bank account during the above period. She has described that conduct in various ways including as negligent and failing to review and investigate bank statements received during the three months of financial management.

Submissions

1. Pursuant to directions Deputy President Hennessy made on 29 September 2015, the respondent filed submissions in support of its claim that the Tribunal has no jurisdiction and the applicant filed submissions in reply. The matter has been determined on the papers.

Consideration

1. The applicant's submission addressed a number of matters going to the factual aspects of this case and misunderstandings of her position. To the extent necessary for this decision, I have taken those matters into account and reflected her concerns in the language I have used to describe the decision under review and the background to the decision. I am not reviewing the merits of the respondent's decision, only whether the Tribunal has jurisdiction to do so.
2. In relation to the law, the applicant said that she does not have legal expertise or the time or resources to explore the legislation and cases fully and proceeded to address the respondent's submissions on want of jurisdiction and there being no reviewable decision.
3. The applicant submitted that it was unreasonable and unlikely that there was no decision to review because the FMO ceased to exist when her brother died, as asserted by the respondent. If the information had become available before his death, she would have asked for review then. The information was not available until after her brother died. She submitted that such a consequence does not accord with the objects of the Administrative Decisions Review Act 1997 (the ADR Act), particularly (c) and (d): 1. to foster an atmosphere in which administrative review by the Tribunal is viewed positively as a means of enhancing the delivery of services and programs 2. to promote and effect compliance by administrators with legislation enacted by Parliament for the benefit of the citizens of NSW
4. The Tribunal's jurisdiction to review a decision of the respondent in relation to the management of an estate is conferred by s. 62 of the NSW Trustee and Guardian Act 2009 (the NSWT&G Act): (1) An affected person may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of a decision of the NSW Trustee that: (a) is made in connection with the exercise of the NSW Trustee's functions under this Division, and (b) is of a class of decision prescribed by the regulations for the purposes of this section. (2) Each of the following is an affected person: (a) a managed person in respect of whose estate the decision was made, (b) the spouse of a managed person in respect of whose estate the decision was made, (c) any other person whose interests are, in the opinion of the Civil and Administrative Tribunal, adversely affected by the decision. (3) Subsection (1) does not apply if the decision of the NSW Trustee was made in accordance with a direction given by the Supreme Court to the NSW Trustee.
5. The NSW Trustee and Guardian Regulation 2008 prescribes "all decisions made by the NSW Trustee in connection with the exercise of the NSW Trustee's functions under Division 1 of Part 4.5 of the Act" for the purpose of s. 62.
6. Division 1 of Part 4.5 of Chapter 4 of the NSWT&G Act is entitled "Management of estates by NSW Trustee" and comprises sections 55 to 62. The Division "applies in respect of the estate of a managed person that is committed to the management of the NSW Trustee" (s. 55).
7. Section 56 provides that "the NSW Trustee has, and may exercise, in respect of the estate of a managed person" all functions necessary and incidental to its management and care" and "such other functions as the Supreme Court" or this Tribunal "in the case of a person under guardianship" may direct or authorise.
8. Section 57 confers functions on the NSW Trustee in respect of protected persons and managed missing persons. Section 58 empowers the NSW Trustee to execute and sign documents on behalf of a managed person for the purpose of exercising a function in a protective capacity.
9. The NSW Trustee may apply money of the estate of a managed person towards any one or more of the purposes specified in s. 59.
10. Section 60 and 61 are not relevant in this case.
11. "Estate of a person means the property and affairs of a person and, if only part of the estate of a person is under management under (Chapter 4), means only that part of the property and affairs of the person" (s.38).
12. Section 10(2) provides that the "NSW Trustee and guardian may do all such supplemental, incidental or consequential acts as may be necessary or expedient for the exercise of its functions".
13. Section 16(1) provides that the NSW Trustee may exercise the functions listed from (a) to (y), including (j) "settle, adjust and compromise a demand made by or against the estate" when acting in a trust capacity or protective capacity.
14. Section 93 of the NSWTG Act provides that the management of the estate of a managed person under the Act terminated on the death of the person.
15. Section 94 requires the NSW Trustee to pay all money standing to the credit of the current account of the person in the common fund and hand over all chattels and documents forming part of the estate of the person, to the legal representative of the person.
16. However, s.95 confers on the NSW Trustee the discretion to pay to a person claiming to be entitled in the distribution of the estate or under the will of a deceased managed person ("a beneficiary") any sum not exceeding the prescribed amount out of money standing to the credit of the account of the deceased person in the common fund or hand over to the beneficiary any chattels having a value not exceeding that amount and forming part of the estate of the deceased person or any documents having a value not exceeding that amount, or relating to property having a value not exceeding that amount, and forming part of the estate of the deceased person. Those functions may be exercised whether or not probate of the will or letters of administration of the estate have been obtained and whether or not legal proof is given of the right or title of the beneficiary.
17. In the case of a deceased person, the NSW Trustee may continue to act as, and exercise the function of the manager of the estate of a person under the Act until satisfied that the person has died (s. 97).
18. I accept that the management of the estate of the applicant's brother ended when he died or shortly thereafter when the NSW Trustee was satisfied that he had died.
19. Thereafter his estate was subject to the general law which applies to wills and intestacies. It is not apparent from the material before the Tribunal whether the applicant's brother died intestate or had made a will. It is apparent that the applicant claims that she is the beneficiary of the estate.
20. I find that both the applicant's claim for reimbursement and the respondent's decision were made after the management of the estate had terminated upon the death of the applicant's brother.
21. The respondent submitted that the Tribunal cannot have powers of review which exceed the power of the administrator under the enabling legislation. The FMO having been terminated, there is no basis for the Tribunal to review the decision. It also submitted that the issue was determined by Senior Member Booby in BNI v NSW Trustee and Guardian [2015] NSWCATAD 69, 13 April 2015 at [28].
22. I do not agree that the decision in BNI has determined the issue. I agree with the applicant that BNI was a different situation. In that case, the FMO pursuant to which the decision under review had been made had been revoked by the Supreme Court. The Senior Member found that consequently any decision the Tribunal made was otiose and dismissed the case.
23. The respondent's decision in this case is of a different character. It is a decision made after the FMO had terminated in response to the applicant's claim that there had been mismanagement resulting in a loss to her late brother's estate and seeking reimbursement for that loss. A decision of this Tribunal would not be otiose. I do not accept the respondent's submission that because the FMO has terminated there has been no decision. There has been a decision. The question is whether it is reviewable by this Tribunal.
24. Is the respondent's decision a decision that is "is made in connection with the exercise of the NSW Trustee's functions under" Division 1 of Part 4.5 of the Act? I find that it is not.
25. First, the respondent's decision is not the exercise of a function under Division 1. In making that finding I take into account the functions conferred by s. 10(2) and s. 16(1), without deciding whether they apply to Division 1. No such function is identified. The function in s.16(1)(j) to "settle, adjust and compromise a demand made by or against the estate" when acting in a trust capacity or protective capacity is not the "function" exercised in this case. It applies while the NSW Trustee and Guardian is managing the estate.
26. The source of power to make the respondent's decision is not apparent. It may be, as referred to in the respondent's submission quoting a submission made in CU v Protective Commissioner (No. 2) (GD) [2009] NSWADTAP 26, derived from prerogative power of the Crown. It is unnecessary to decide in this case and undesirable to do so when the applicant is not legally represented. The respondent is not claiming that it did not have the power to make the decision. If the Tribunal has jurisdiction, it may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision (ADR Act s. 63(2)).
27. Was the respondent's decision made "in connection with" the exercise of a function under Division 1?
28. The respondent referred to two decisions of the Tribunal's predecessor.
29. In Davies v Protective Commissioner (GD) [2008] NSWADTAP 59 the executor of the will of a protected person claimed that the estate ought to be compensated because it had been depleted by an error made by the Commissioner in relation to payment of land tax. The Commissioner acknowledged that there had been an error and offered an ex gratia payment. The executor sought the review of the amount offered.
30. The provision conferring a right of review to the then Tribunal was in similar terms to s. 62 of the NSWT&G Act. In that case, the respondent submitted that although the decision under review was not the exercise of a function under the specified Division, that did not deprive the Tribunal of jurisdiction. It was a decision made "in connection with the exercise of the Commissioner's functions" under the Division. The Tribunal considered the provision in some detail, but did not reach a final view, deciding the case on the basis that the Tribunal had jurisdiction but finding the appeal must fail. The applicant was not legally represented.
31. In CU v Protective Commissioner (No. 2) (GD) [2009] the respondent submitted that although "in connection with" had a wide meaning, it ought not be interpreted to catch the making of ex gratia payments for error in administration. The power to make such payments did not derive from the powers given to the Commissioner by financial management or guardianship orders, but from the prerogative power of the Crown.
32. The Tribunal "was inclined to agree with the Commissioner's line of argument" but thought it preferable to have the issue "authoritatively determined in a case where there was an active contradictor on the point with legal representation". As in Davies the Tribunal did not "see it as necessary" to the disposal of the matter to give a final ruling on the question. It proceeded to determine the appeal which failed.
33. In this case, the respondent concluded its submission after quoting the decision in CU: "Unfortunately it may well be that this case, with the applicant again being unrepresented is not the appropriate vehicle for a final determination" but submitted that the "favourable view" in CU is the correct one and submitted that there is no administratively reviewable decision which would operate to give NCAT power to determine the applicant's complaint.
34. There is no active contradictor with legal representation in this case. However, a decision has been made that the question of jurisdiction be determined on the papers. I proceed to determine the question.
35. The Australian Concise Oxford Dictionary provides the following definitions: connection n. 1a the act of connecting, the state of being connected. b an instance of this. 2 the point at which two things are connected. in connection with with reference to.
36. The Tribunal in Davies referred to cases where the phrase "connected with" in various statutes had been considered (at [27] and [28]). The Court of Appeal in Commonwealth of Australia v Shaw [2006] NSWCA 209; 66 NSWLR 325 said that the phrase is "inherently elusive" and must take its meaning from the specific statutory context.
37. I find that the respondent's decision was not "made in connection with the exercise of the NSW Trustee's functions under Division 1". The management of the estate had terminated upon the death of the applicant's brother. The powers of the respondent in relation to the estate after that are not reviewable by this Tribunal (for example ss 94 and 95). I find that the character of the respondent's decision is different from a decision "made in connection with the exercise of the NSW Trustee's functions under Division 1" . There are two aspects to the decision. First, the decision-maker has to assess whether there had been (past tense) an error during the period of management of the estate and then to decide on appropriate compensation or reimbursement to the estate or a beneficiary of the estate. I find that the connection required by s. 62 between the decision and the exercise of the function is a contemporaneous one, that is, the decision must be made during the management of the estate. The respondent's decision does not have that contemporaneous connection. Secondly, if the decision-maker determines that there has been error or mismanagement, he/she then makes an assessment of the amount of what may be described as the respondent's "liability" for the error or mismanagement. Any reimbursement or compensation is paid from public funds. Clear language would be needed conferring jurisdiction on this Tribunal to review such a decision. I find that the assessment of the respondent's "liability" is not a decision "in connection" with the exercise of the respondent's functions under Division 1.
38. For those reason, the respondent's decision is not reviewable by this Tribunal. The Tribunal does not have jurisdiction to determine the application for review of the respondent's decision.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar 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: 07 December 2015