CZL v NSW Trustee and Guardian

The applications for a stay

1. CZL lodged three separate applications for a "stay or interim order" of the decision. The first application, dated 14 March 2017 and lodged on 21 March 2017 asks for six orders. CZL has withdrawn the application for orders 2 - 6 because those orders do not relate to the decision to stop paying him $10,000 a month. That application is amended so as to delete the application for orders 2 - 6. The second and third applications, lodged on 10 and 11 April 2017, asked for orders that do not relate to the decision under review and which the Tribunal does not have jurisdiction to make. CZL has withdrawn those applications and they are dismissed.

Issues and answers

1. There are four issues remaining: 1. Does the Tribunal have power to review the decision? (Yes) 2. If so should the Tribunal accept the application even though it was lodged out of time? (Yes) 3. If so, is this the kind of decision that can be stayed or whose operation can be affected? (Yes) 4. If so, should the operation of the decision be affected? (No)

Does the Tribunal have power to review the decision?

1. The Tribunal has "administrative review jurisdiction" over a decision of an administrator, such as the NSW Trustee, if enabling legislation provides that applications may be made to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 (NSW): Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), s 30 and Administrative Decisions Review Act, s 9. The NSW Trustee and Guardian Act 2009 (NSW) is enabling legislation.
2. Two provisions in the NSW Trustee and Guardian Act give the Tribunal power to review certain decisions. Section 70 allows a private manager or "any person who has a genuine interest in the matter" to apply for a review of a decision by the NSW Trustee under Part 4.5 of that Act "in relation to the functions of a person appointed as a manager": 70 Administrative review by NCAT of decisions by NSW Trustee in relation to managers (1) Each of the following persons may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of a decision by the NSW Trustee under this Part in relation to the functions of a person appointed as a manager: (a) the person appointed as manager, (b) any other person who, in the opinion of the Civil and Administrative Tribunal, has a genuine interest in the matter to which the NSW Trustee's decision relates. (2) Subsection (1) does not apply if the decision by the NSW Trustee was made in accordance with a direction given by the Supreme Court to the NSW Trustee. (Emphasis added.)
3. Section 71 gives the Tribunal power to review a decision of the NSW Trustee to approve or not to approve an authorisation by the private manager for the managed person to deal with part of his or her estate: 71 Managed person cannot deal with estate (cf PE Act, s 23A) (1) The power of a managed person to deal with his or her estate is suspended in respect of so much of that estate as is subject to management under this Act. (2) However, the manager may, by instrument in writing, authorise the managed person to deal with so much of the estate as the manager considers appropriate and specifies in the instrument. (3) The authorisation may be given at any time and may be withdrawn, wholly or in part, at any time. (4) More than one authorisation may be given under this section. (5) An authorisation must not be given or withdrawn by a manager who is not the NSW Trustee without the approval of the NSW Trustee. (6) Each of the following persons may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 for a review of a decision of the NSW Trustee about whether or not to approve of the giving or withdrawal of an authorisation: (a) the manager, (b) the managed person, (c) the spouse of the managed person, (d) any other person who, in the opinion of the Civil and Administrative Tribunal, has a genuine interest in the matter to which the NSW Trustee's decision relates.
4. No decision of the kind described in s 71 has been made in this case. Consequently, the only possible source of the Tribunal's jurisdiction is s 70(1).
5. Under s 70(1) of the NSW Trustee and Guardian Act, The Tribunal has jurisdiction to review a decision as long as it is a decision: 1. by the NSW Trustee; 2. under Part 4.5 of the NSW Trustee and Guardian Act; 3. "in relation to the functions" of the private manager.
6. The decision to approve the cessation of monthly payments to CZL was a decision of the NSW Trustee.
7. The second issue is whether it was made under Part 4.5 of the NSW Trustee and Guardian Act. That Part is headed "Management of estates" and contains three Divisions. Division 1 is headed "Management of estates by NSW Trustee" and deals with estates where the NSW Trustee, rather than a private manager, is the manager of the estate. Division 2 is headed "Management of estates by other persons" and deals with estates where a private manager has been appointed. Division 3 contains miscellaneous provisions relating to the management of estates generally and contains s 71. The relevant Division for the purpose of these proceedings is Division 2 which contains ss 63 - 70.
8. Under s 66(1)(a) of the NSW Trustee and Guardian Act, the NSW Trustee may direct or authorise a manger to exercise some or all of the Trustee's functions in relation to the estate. The Trustee may also give a manager directions as it thinks fit: s 66(1)(b). (1) The NSW Trustee may, by order: (a) authorise a manager to have all, or any specified, functions necessary and incidental to the management and care of an estate and such other functions as the NSW Trustee may direct or authorise the manager to have or exercise, and (b) give a manager such directions in respect of the orders, authorities and directions authorised by this subsection as the NSW Trustee thinks fit. (2) Without limiting any other provision of this Division, the NSW Trustee may authorise a manager to have functions of a kind specified in section 16. (3) An order by the NSW Trustee is subject to the regulations or to any order of the Supreme Court or to any order of the Civil and Administrative Tribunal (in the case of a person under guardianship). (4) This section is in addition to sections 64 and 65. (Emphasis added.)
9. The reference in s 66(3) to the Civil and Administrative Tribunal is a reference to orders made in the Guardianship Division of the Tribunal.
10. On 24 March 2015, the NSW Trustee gave DAH various general and specific functions including functions relating to banking, expenditure, real estate and care facilities. But the private manager was also directed "[N]ot to deal with the estate of the managed person in any manner without the prior approval of the NSW Trustee and Guardian …". An additional direction was made on 8 August 2016 which authorised DAH to commence or continue with proceedings in the Family Court of Australia on behalf of Mr X.
11. On 7 February 2017, the NSW Trustee issued a further additional direction authorising DAH to "make a demand on CZL in order to recover loans owed by him to the managed person and if not paid, the manager is authorised to commence proceedings in the Supreme Court of New South Wales on behalf of the managed person in order to recover amounts from CZL said to be owed to the managed person by him". The additional direction also authorised DAH to "make a demand on CZL for possession of the managed person's property (address deleted) and if vacant possession is not provided, to commence proceedings in the Supreme Court of NSW to seek a declaration from the Court that the lease is invalid".
12. On 20 March 2017, the NSW Trustee added a further authority to "defend any cross-claim brought by CZL, or any other entity on his behalf, against any proceedings commenced by the Manager against him …".
13. Any decision to authorise a manager "to have all or any specified functions" would be a decision under Part 4.5 in relation to the functions of the private manager. The decision to approve the manager's proposal to cease monthly payments of $10,000 to [CZL] from 1 September 2015 was not a decision to authorise a manager to have all, or any specified, functions: NSW Trustee and Guardian Act s 66(1)(a). But the Tribunal will have jurisdiction if the decision under review is "in relation to the functions" DAH has been given.
14. The term "in relation to" describes the necessary degree of connection the decision must have with the functions of the private manager. The High Court has said that "'the subject matter of the enquiry, the legislative history, and the facts of the case' are all matters that will bear upon the judgment of what relationship must be shown in order to conclude that there is ... (the necessary connection): Travelex Ltd v Commissioner of Taxation [2010] HCA 33; (2010) 241 CLR 510; 270 ALR 353 at [25].
15. There has been little judicial consideration of what constitutes a decision "in relation to the functions of a person appointed as a manager" in s 70(1) of the NSW Trustee and Guardian Act. It includes "[A] decision by the NSW Trustee in quantification of the remuneration to be allowed to a manager, in accordance with a manager's authority to charge fees". Ability One Financial Management Pty Limited and Anor v JB by his Tutor AB (17 March 2014) [2014] NSWSC 245 at [262]; (Lindsay J). It also includes an authority given to the manager to exercise the managed person's voting rights in respect of her shareholding in various companies including voting at extraordinary general meetings, voting in favour of a resolution for the appointment of a provisional liquidator and the winding up of the companies: AHJ v NSW Trustee and Guardian (23 November 2011) [2011] NSWADT 311 at [2] and [20].
16. In Tang v Minister for Immigration and Citizenship [2013] FCAFC 139; (2013) 305 ALR 547 the issue was whether a refusal to extend the time for the making of an application to quash a 'migration decision' was a decision "in relation to" migration decisions: Migration Act 1958 (Cth), s 476A(1). The Federal Court (Rares, Perram & Wigney JJ) held that it was not. The Court reasoned at [5] - [11] that in the particular statutory context, and in light of the consequences of a contrary decision, the phrase "in relation to" should be given a "circumscribed meaning".
17. The statutory context in this case is that the NSW Trustee has a broad power under s 66 of the NSW Trustee and Guardian Act "to authorise a manager to have all, or any specified, functions necessary and incidental to the management and care of an estate and such other functions as the NSW Trustee may direct or authorise the manager to have or exercise".
18. The NSW Trustee is empowered and required to manage the estates of protected persons committed to its care by the Supreme Court, the Mental Health Review Tribunal and the Guardianship Division of NCAT: M v M (11 October 2013) [2013] NSWSC 1495; [1981] 2 NSWLR 334 at [11] (Lindsay J).
19. Although the NSW Trustee did not give DAH a specific function of supporting CZL, paying him money or carrying out a contract, the directions and authorities that the NSW Trustee gave to DAH on 24 March 2015 included a direction: Not to deal with the estate without prior approval of the NSW Trustee unless stated otherwise in this document or any further Directions and Authorities given by the NSW Trustee and Guardian.
20. I am satisfied that the decision made by the NSW Trustee has a sufficient connection with the functions DAH has been given to come within the jurisdiction of the Tribunal.
21. It was not in dispute that if the Tribunal has jurisdiction, CZL is entitled to apply for a review of the decision because he "has a genuine interest in the matter to which the NSW Trustee's decision relates": NSW Trustee and Guardian Act, s 70(1)(b). Lawyers call this having "standing" to make the application. If the phrase "in relation to" was given a circumscribed meaning it would deprive a person with a genuine interest in the decision of the opportunity to have the decision reviewed.

Should the Tribunal accept the application even though it was lodged out of time?

1. Unless the Tribunal grants an extension of time, an application for administrative review must be made within 28 days of the day on which CZL was notified of the making of the administratively reviewable decision: Civil and Administrative Tribunal Rules 2014 (NSW) cl 24(4)(b)(ii).
2. The decision was made on 9 September 2015. The application was lodged about eighteen months later on 14 March 2017. CZL says he was notified of the decision on 2 March 2017.
3. More than 18 months later, on 15 September 2015, DAH emailed CZL saying that: The NSW Trustee & Guardian has approved my decision to cease payments to you of $10,000 monthly from the funds of [Mr X]. As a result no further payments will be made to you.
4. In February 2017 CZL attempted to obtain from DAH the contact details of the person responsible for Mr X's estate at the office of the NSW Trustee. DAH eventually responded saying that he was under no obligation to provide him with that information.
5. On 23 February 2017 CZL wrote an email to the NSW Trustee setting out his grievances and requesting the contact details for the person responsible for Mr X's estate. He added that time was of the essence and requested urgent help. On the same day, Ms Avery replied advising that "all requests, particularly funding requests, need to be in the first instance made through the financial manager who will submit the requested to NSWTG with the recommendations, affordability of the estate to meet the cost and other factors." Ms Avery added that "[A]ny decision made by the NSWTG can be reviewed. Please refer to the NSWTG website." On the same day CZL replied saying that the matter required "immediate internal review and corrective action by the NSWTG."
6. On 3 March 2017, the NSW Trustee wrote to CZL concluding that: While the managed person's estate is correctly managed within NSWTG Requirements then it is not our (NSWTG) role to interfere in the management of the managed person's estate.
7. On 6 March 2017, CZL wrote to Ms Avery saying: Considering your current position, would you please advise me of what avenues, Tribunal or Court I can pursue if I wanted to challenge [DAH's] position, including any avenues with the Tribunal.
8. Ms Avery replied on 7 March 2017 saying that; Decisions made by NSWTG are reviewable within certain time frames. Please refer to NSWTG website for information in respect of this.
9. Ms Avery also provided the phone numbers for NCAT and the Supreme Court.
10. The NSW Trustee acknowledged that no steps were taken to give CZL notice in writing of the decision made on 9 September 2015 or to advise him of his right to have the decision reviewed. It follows that the NSW Trustee has not complied with s 48 of the Administrative Decisions Review Act: (1) An administrator who makes an administratively reviewable decision must take such steps as are reasonable in the circumstances to give any interested person notice, in writing, of the following: (a) the decision, and (b) the right of the person to have the decision reviewed.
11. Advising CZL that "Decisions made by NSWTG are reviewable within certain time frames" and referring him to the website does not comply with this provision. CZL assumed that he should correspond with DAH as the private financial manager. The NSW Trustee encouraged him to do so.
12. I find that the NSW Trustee has never notified CZL of the making of a reviewable decision, so the 28 day time period to apply for a review of that decision has never started to run. The NSW Trustee should have advised CZL when it made the decision on 9 September 2015, that the decision had been made and that he was entitled to request an internal review of that decision: Administrative Decisions Review Act, s 48. In circumstances where no such notice was given, it is fair and just for the time for lodgement of the application to be extended to 21 March 2017.
13. I made directions for CZL to provide any further evidence supporting his application to lodge the application out of time by 11 April 2017. He provided a statement dated 4 April 2017 detailing the history of his mental health and details of a recent admission to a clinic for treatment. Given my conclusion that the NSW Trustee did not give CZL notice in writing of the decision or of his review rights, it is not necessary to consider this evidence.
14. I also dispense with the requirement for CZL to apply for an internal review of the decision as I am satisfied that it is necessary for the Tribunal to deal with the application in order to protect CZL's interests and the application was made within a reasonable time following the decision being made: Administrative Decisions Review Act, s 55(4)(b). Despite the fact that application was made 18 months after the decision, CZL was not made aware of the decision or of his right to request internal or external review of that decision.

Is this the kind of decision that can be stayed?

1. The Tribunal has power to make an order staying or "otherwise affecting the operation" of the decision. Section 60 of the Administrative Decisions Review Act relevantly provides that: (1) Subject to this section, an application to the Tribunal for an administrative review under this Act of an administratively reviewable decision does not affect the operation of the decision under review or prevent the taking of action to implement that decision. (2) On the application of any party to proceedings for an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal may make such orders staying or otherwise affecting the operation of the decision under review as it considers appropriate to secure the effectiveness of the determination of the application. (3) The Tribunal may make an order under this section only if it considers that it is desirable to do so after taking into account: (a) the interests of any persons who may be affected by the determination of the application, and (b) any submission made by or on behalf of the administrator who made the decision to which the application relates, and (c) the public interest.
2. The first limb of s 60(2) allows the Tribunal to stay a decision. The Tribunal cannot stay the decision under review because a stay is an order which prevents the coming into force of a decision which is yet to come into effect: AVS Group of Companies Pty Ltd v Commissioner of Police [2010] NSWCA 81; (2010) 78 NSWLR at [16], at [26] (Basten JA), at [95]-[96] (Campbell JA). The decision under review has come into effect.
3. Under the second limb of s 60(2), the Tribunal has power to make an order "otherwise affecting the operation of the decision under review". For example, if an administrator revokes a licence, the second limb of s 60 "is wide enough to enable the Tribunal to temporarily reinstate a licence that has been revoked pending the hearing of an application for review of a decision to revoke the licence": AVS Group of Companies Pty Ltd v Commissioner of Police [2010] NSWCA 81; (2010) 78 NSWLR at [96] per Campbell JA.
4. The Administrative Appeals Tribunal has a similar power to stay a decision: Administrative Appeals Tribunal Act 1975 (Cth), s 41(2). That power has been applied to direct that a Commonwealth agency pay someone a benefit: Re Repatriation Commission and Delkou (1985) 8 ALD 454. The effect of a stay in that case is that the agency does not have to make the payments until the matter is finally resolved.
5. If an administrator makes a decision which has the effect of changing the status quo, the power in s 60(2) of the Administrative Decisions Review Act is wide enough to allow the Tribunal to suspend the operation of the decision. The effect of the suspension would be to temporarily reinstate the status quo. Continuing the status quo could mean either resuming payments of $10,000 a month to CZL or resuming the payments and paying him $180,000 for the months of October 2015 to March 2017. I am satisfied that the Tribunal can make orders of that kind affecting the operation of the decision.

Should the operation of the decision be affected?

1. Relevant considerations include the hardship CZL is likely to suffer if a stay is refused, the likelihood that the estate would be able to recover the money if the final decision is affirmed and the prospects of success of the application: Re Repatriation Commission and Delkou (1985) 8 ALD 454.
2. The evidence as to CZL's financial situation is in a statement from CZL's father who says that since September 2015 he and his wife have been supporting CZL financially but they can no longer afford to do so. He said CZL owes him $60,000. CZL's mother supports her husband's statement. Although there was very little evidence of CZL's financial circumstances, I find that he is likely to suffer financial hardship if an order affecting the operation of the decision is not made. I also find, given the extent of his debts and the fact that he is not employed, that it is unlikely that the estate would be able to recover any money paid to CZL if the Tribunal affirms the decision to stop the payments of $10,000 a month.
3. In the reasons for its decision, the NSW Trustee referred to an agreement CZL has with Mr X "in regard to companionship and the monthly payment". CZL also referred to that agreement in his evidence. The enforceability of such an agreement may be an issue if the matter proceeds to hearing. That is not an issue on which I can form a preliminary view at this stage of the proceedings. In those circumstances the prospects of success of the application are difficult to assess.
4. After this decision was reserved, the parties advised that DAH has sought an order in the Supreme Court for these proceedings to be transferred to the Supreme Court for case management with other proceedings already on foot between the same parties. That application is to be heard on 5 June 2017.
5. In my view, the balance of convenience is against making an order affecting the operation of the decision. Despite CZL's financial situation, it is unlikely that the estate would be able to recover any money paid to him and the prospects of success of the substantive application are difficult to assess. In addition, depending on the decision of the Supreme Court, the application for review in the Tribunal may not go ahead.

Orders

1. The application for a stay or interim order dated 14 March 2017 and lodged on 21 March 2017 is amended so as to delete the application for orders numbered 2 - 6.
2. The application for a stay or interim order dated 14 March 2017 and lodged on 21 March 2017 is dismissed.
3. The application for a stay or interim order dated 7 April 2017 and lodged on 10 April 2017 is withdrawn and dismissed.
4. The application for a stay or interim order dated 12 April 2017 and lodged on 12 April is withdrawn and dismissed.
5. The time for lodgement of the application for review is extended to 21 March 2017. 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: 04 May 2017