Re Irving and Repatriation Commission (1997) 46 ALD 20
Re Williams and Australian Electoral Commission (1995) 38 ALD 366
Source
Original judgment source is linked above.
Catchwords
Jebb v Repatriation Commission [1988] FCA 105, (1988) 80 ALR 329Re Irving and Repatriation Commission (1997) 46 ALD 20Re Williams and Australian Electoral Commission (1995) 38 ALD 366
Judgment (9 paragraphs)
[1]
Reasons for decision
The applicant, known as DOI for the purposes of this application, applied to this tribunal on 17 July 2018 for review of a decision by the New South Wales Trustee and Guardian (commonly referred to as TAG) in its capacity as financial manager of the estate of his mother, Mrs A****, aged 76. This is one of a number of review applications and proceedings involving the same parties and relating to the same estate.
The management of Mrs A's estate was committed to TAG by a financial management order made by the Guardianship Division of this tribunal on 30 September 2016. She is thus a protected person within the meaning of s 38 of the NSW Trustee and Guardian Act 2009 (TAG Act) and DOI is her guardian and principal carer. She lives at home with her husband, who is also one of her carers, and DOI.
As at 6 August 2014, Mrs A and her husband of 57 years, J****, were the registered proprietors as joint tenants of a property in Sydney. On 23 December 2016, the property was sold for $2 million (including a deposit of $200,000), Dibbs Barker, solicitors, acting for J.
It is common ground that this tribunal had jurisdiction to hear the application for review of a decision made in connexion with the exercise of TAG's functions as financial manager, by virtue of s 62 of the TAG Act, and that DOI was an "affected person" and thus had standing under that provision to apply for the review.
On 2 December 2016, Dibbs Barker wrote to TAG, among other things proposing that the sale proceeds be divided 70:30 between J and Mrs A respectively. Then on 22 December Dibbs Barker wrote to TAG foreshadowing that the sale would be settled on 23 December and proposing that in the short term a provisional arrangement about the purchase money should be arrived at on the following terms:
1. 50 percent of the sale proceeds to be released to J;
2. 30 percent of the sale proceeds to be released to Mrs A (care of TAG); and
3. 20 percent of the sale proceeds to be held by TAG on behalf of J and Ms A, pending resolution of the "split" of the sale proceeds.
TAG accepted that proposal. On or about 23 December, Dibbs Barker provided TAG with cheques for, among other things, Mrs A's agreed provisional share and the portion to be held on trust by TAG. Cheques representing a similar division of the $200,000 deposit were also paid to TAG.
On 30 May 2017, TAG's solicitors, Carroll & O'Dea, wrote to Dibbs Barker requesting documents and information to substantiate J's contention that he should receive 70 percent of the sale proceeds. There followed an exchange of letters and emails repeating and responding to Carroll & O'Dea's request for material to support J's claim and noting that TAG had not yet received the requested information and documents. Some time around mid-2017, Dibbs Barker ceased to act for J and were replaced in that role by Lang Noonan, who informed Carroll & O'Dea that they had thus far been unable to obtain the complete file and were therefore not in a position to comply with their request for particulars.
TAG's primary position is that as a joint tenant, Mrs A was entitled to 50 percent of the total sale proceeds unless J was able to substantiate a greater entitlement for himself. The issue not having been resolved after a significant amount of correspondence, TAG took the view that it could not hold the 20 percent of the sale proceeds indefinitely, nor as financial manager could it "simply give [Mrs A]'s money away".
Forming the view that further correspondence would not achieve a resolution of the split issue, a senior legal officer with TAG obtained legal advice and determined that commencing proceedings was the appropriate means of resolving the impasse. He considered consulting DOI and any other interested persons about commencing proceedings, but decided that the proposed action was of such a nature that neither the applicant nor any of his relatives should be consulted and that no consultation was required. He considered the action was necessary to protect Mrs A's financial interests.
Proceedings were accordingly commenced in the Equity division of the Supreme Court on 20 June 2018 (case No. 2018/190868), naming Mrs A and TAG as plaintiffs and J as defendant, seeking a declaration that Mrs A and J were entitled in equal shares to the sale proceeds and an order that the defendant provide a written direction to TAG to pay to Mrs A the money currently held by TAG pending resolution of the split of the sale proceeds.
DOI challenged TAG's decision to commence Supreme Court proceedings against his father, J. As a practical matter, as the equity proceedings by then were on foot, his challenge was in effect to TAG's action in continuing with the suit. It was not disputed that the decision was a reviewable decision.
TAG claimed legal professional privilege (also known as client privilege) over the legal advice it obtained and other communications with Carroll & O'Dea. DOI challenged the claim of privilege, arguing that he could not prepare his own case on the substantive issue without access to the material over which TAG claimed privilege. The interlocutory application was decided in the respondent's favour on 4 September 2018: DOI v NSW Trustee and Guardian [2018] NSWCATAD 206.
The equity proceedings in the Supreme Court were subsequently settled and the court approved the terms of settlement pursuant to s 76 of the Civil Procedure Act 2005 on 24 October 2018. When the substantive application came on for hearing again in this tribunal on 10 December 2018, the respondent moved to dismiss it on the ground that following the Supreme Court's decision there was no decision left for the tribunal to review and therefore no jurisdiction. DOI opposed the application to dismiss on the ground that the respondent's solicitors should not be acting for TAG as they had previously represented Mrs A's interests and had access to her records. There was a clear conflict of duty and interest, he said. Further, the matters in issue were wider than that resolved by the Supreme Court litigation.
[2]
Applicable legislation
This tribunal's jurisdiction is conferred by s 30 of the Civil and Administrative Tribunal Act 2013 (CAT Act):
30 Administrative review jurisdiction
(1) The Administrative Decisions Review Act 1997 provides for the circumstances in which the Tribunal has administrative review jurisdiction over a decision of an administrator.
Note.
See section 9 of the Administrative Decisions Review Act 1997.
(2) The Tribunal also has the following jurisdiction in proceedings for the exercise of its administrative review jurisdiction:
(a) the jurisdiction to make ancillary and interlocutory decisions of the Tribunal in the proceedings,
(b) the jurisdiction to exercise such other functions as are conferred or imposed on the Tribunal by or under this Act, the Administrative Decisions Review Act 1997 or enabling legislation in connection with the conduct or resolution of such proceedings.
(3) An administratively reviewable decision is a decision of an administrator over which the Tribunal has administrative review jurisdiction.
Note.
See section 7 of the Administrative Decisions Review Act 1997.
(4) An administrator, in relation to an administratively reviewable decision, is the person or body that makes (or is taken to have made) the decision under enabling legislation.
Note.
See section 8 of the Administrative Decisions Review Act 1997.
(5) An administrative review decision of the Tribunal is a decision of the Tribunal determining a matter over which it has administrative review jurisdiction.
(6) An administrative review application is an application made to the Tribunal for an administrative review decision.
Note.
Chapter 3 (Process for administrative reviews under this Act) of the Administrative Decisions Review Act 1997 also makes provision for the role of administrators when making administratively reviewable decisions and the role of the Tribunal when conducting an administrative review of such decisions.
The tribunal's functions on administrative review are set out in s 63 of the Administrative Decisions Review Act 1997 (ADR Act):
63 Determination of administrative review by Tribunal
(1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following:
(a) any relevant factual material,
(b) any applicable written or unwritten law.
(2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision.
(3) In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide:
(a) to affirm the administratively reviewable decision, or
(b) to vary the administratively reviewable decision, or
(c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or
(d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.
The tribunal's powers to dismiss an application include s 55(1) of the CAT Act:
55 Dismissal of proceedings
(1) The Tribunal may dismiss at any stage any proceedings before it in any of the following circumstances:
(a) if the applicant or appellant (or, if there is more than one applicant or appellant, each applicant or appellant) withdraws the application or appeal to which the proceedings relate,
(b) if the Tribunal considers that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance,
(c) if the applicant or appellant (or, if there is more than one applicant or appellant, each applicant or appellant) has failed to appear in the proceedings,
(d) if the Tribunal considers that there has been a want of prosecution of the proceedings.
The issue now before the tribunal is whether the Supreme Court's approval of the terms of settlement has the result that there is no longer a reviewable decision before the tribunal and it accordingly has no jurisdiction or the application is now vexatious or lacking in substance or both.
[3]
Applicant's submissions
The applicant submitted that there were two grounds for opposing the respondent's application to dismiss. The first was that it was not proper for TAG's solicitors to be representing the respondent in the present proceedings because they had previously acted for Mrs A. There was a conflict of duty and interest and the respondent should have instructed a different law firm because their present representatives had had the benefit of access to Mrs A's legal advice. The result was that Mrs A was not having a hearing. The respondent should be behaving as a model litigant and it was against natural law to have the same lawyers now acting in the present proceedings, as their submissions could influence the tribunal's decision.
The applicant's second line of argument was that, as he had consistently argued previously, the matter at stake was bigger than the s 62 proceedings dealt with by the Supreme Court, which had not been concluded, as there had been no order as to costs. There were also issues of bad administration, failure to consult and improper conduct on the part of TAG. Such matters were reviewable and consequently the tribunal did have jurisdiction. If it had not had jurisdiction, his application would not have got past the first hearing.
[4]
Respondent's submissions
Mr Higgins on behalf of the respondent submitted that as the Supreme Court had now approved the terms of settlement, there was no decision left for the tribunal to review, and consequently no jurisdiction. The tribunal had no power to go behind any orders of the Supreme Court. The court's order that there was no order as to costs was not an unusual result in litigation and meant that there would not be a costs order.
The idea of a conflict of duty and interest was based on the erroneous idea that TAG's position was opposed to that of Mrs A, but there was no conflict as the instructing officer was the decision-maker in relation to her estate. In the event of a challenge to a TAG decision, the decisionmaker would be responsible for giving instructions to the legal representatives. It was not a case of there being two different arms of TAG. There would be no point in Mrs A being independently represented as she is not a party to the current proceedings.
The tribunal could not ignore the fact that the approved settlement had removed any basis for the tribunal's jurisdiction. It now had no power to make any of the orders listed in s 63 of the ADR Act. The applicant must be able to point to a reviewable decision as a basis for his challenge. The only such decision in this case is the decision to take proceedings in the Supreme Court. Once the equity suits had been dismissed, the automatic result was that the tribunal had nothing left to deal with and no jurisdiction. But even if the tribunal is still had jurisdiction, continuing with the application would be pointless as there was no action that the tribunal could take.
[5]
Consideration
The initial application was a challenge to TAG's decision to institute equity proceedings for a declaration as to the correct manner of distributing the sale proceeds in relation to the property formerly jointly owned by J and Mrs A. It was not disputed that s 62 of the TAG Act gave the tribunal jurisdiction to review that decision. The first question now is whether it still has jurisdiction over any aspect of TAG's management of Mrs A's estate.
[6]
Jurisdiction
The Supreme Court's judgment of 24 October 2018 pursuant to s 76 of the Civil Procedure Act 2005 approved the settlement of the proceedings embodied in the short minutes of order executed by the legal representatives for the respective parties and dated 9 October 2018. The short minutes of order provided as follows:
BY CONSENT, THE COURT ORDERS:
1. The First Plaintiff receive from the Proceeds the sum of $100,000;
2. The Defendant receive the balance of the Proceeds;
3. The Statement of Claim and the Cross-Claim be dismissed, in each case, without order as to costs.
A reference to 'Proceeds' in these Orders means 20 percent of the net proceeds of the sale of the Property situated at ********* ("the Property") plus all interest earned on that amount.
The Court:
1. Approves, pursuant to s 76 of the Civil Procedure Act 2005 (NSW), the settlement of the proceedings embodied in the Short Minutes of Order executed by the solicitors for the respective parties and dated 9 October 2018.
2. Makes orders in accordance with the said Short Minutes of Order document".
The applicant submitted that the court's orders did not exhaust the content of the proceedings because no costs order was made. A statement by a court that there is to be no order as to costs does not, however, mean that the question of costs has been left to be resolved at a later date. It is a standard form of order that means that no award of costs is to be made. Consequently, the approved terms of settlement have the effect that nothing remains of the claim.
DOI also contended that TAG's failure to consult him before commencing the equity proceedings was itself reviewable, thereby conferring jurisdiction on the tribunal. Section 72 of the TAG Act, which provides for consultation by TAG with the relatives of a managed person, forms part of division 3 of part 4.5, whereas the jurisdictional provisions in s 62 are in division 1, which deals with the management of estates, including administrative review by NCAT. The question of consultation is thus not a reviewable decision. In any event, the only reviewable decision before the tribunal on this application is the decision to institute (and continue) the Supreme Court proceedings.
Further, s 72 requires consultation before taking any action in respect of an estate only if the Trustee determines that the action is of such a nature that the person or relative or relatives of the person should be consulted. In this case, the responsible officer considered whether this was a case in which consultation was appropriate, and determined that it was not. There is no evidence to suggest that he did not go about reaching his decision in a proper manner.
It is not disputed that the tribunal from the outset had jurisdiction to review TAG's decision to institute and continue the equity proceedings. The respondent's proposition that the court's dismissal of the statement of claim and the cross-claim had the automatic effect of negating the tribunal's jurisdiction seemed a somewhat sweeping one, though, and one for which one would prefer to see some authority in the case-law. The respondent did not, however, cite any authority on the point. I therefore find that the tribunal still has jurisdiction over the application. Nevertheless, in view of the following, that does not mean that the application should proceed in the usual way.
[7]
Section 55(1)
As Mr Higgins submitted, even if one assumes that the tribunal retains jurisdiction, there is no decision that the tribunal has the that power to make that would alter the position. The powers conferred on the tribunal by s 63(3) of the ADR Act consist only of the power to affirm the reviewable decision, vary it, set it aside and substitute another, or set it aside and remit it to the administrator. To make any of those decisions in relation to the respondent's action in instituting equity proceedings that no longer exist would be nugatory.
Consequently, even if one assumes that there was a conflict of interest and duty involved in the respondent's solicitors representing TAG for the purposes of the present application, there would be no point in requiring separate representation of Mrs A when there are no proceedings on foot that could affect her interests.
The applicant submitted with some emphasis that challenging the decision to institute proceedings did not cover every aspect of the matters in contention between the parties. He contended that questions of improper conduct and maladministration were also involved.
It would be inappropriate to consider the merits of any such allegations in these proceedings as the tribunal's power is only to review reviewable decisions and, as was pointed out above, the only reviewable decision that has been before the tribunal in this case was the action of instituting the Supreme Court proceedings.
It is well established that in merits review, unlike the usual position in judicial review, the tribunal normally decides on the basis of the facts established as at the date of the decision (e.g. Jebb v Repatriation Commission [1988] FCA 105, (1988) 80 ALR 329, 333). At this stage, although much of the evidence has not been heard, the dominant fact before the tribunal in relation to this application is the court-approved settlement of the equity proceedings and the dismissal of the claim and cross-claim.
The applicant wishes to continue with the present application because he seeks to ventilate a number of other grievances that he believes he has against TAG. According to an applicant who genuinely believes that he or she has a basis for maintaining an application a "day in court" is a recognized consideration in this area of law and procedure. On the other hand, where, as here, an applicant is seeking what could only be a moral victory, as there is no order the tribunal could make that would be of any benefit to him and the respondent would incur costs in defending the proceedings, the tribunal is not obliged to hear the matter: Re Irving and Repatriation Commission (1997) 46 ALD 20.
Further, an application that is legitimate when commenced can subsequently become vexatious because of changes of circumstances. If no purpose will be achieved by continuing the application, even though the applicant is genuine in his or her belief in the matter raised, the application should be struck out: Re Williams and Australian Electoral Commission (1995) 38 ALD 366. Similarly, in Transurban City Link v Allan (1999) 168 ALR 687 it was held that where the interests that had permitted a person to seek review of a decision no longer existed, the person's right to pursue the application came to an end.
That is now the situation in the present case. Choice of the appropriate course of action should also be guided by the declared objects of the CAT Act as set out in s 3 and which inter alia direct the tribunal "to resolve the real issues in proceedings justly, quickly [and] cheaply".
I therefore conclude that although the application when commenced was legitimate, continuing the proceedings now would be vexatious and the application is now lacking in substance. It should be dismissed under s 55(1)(b) of the CAT Act. As is usual in such matters, orders prohibiting publication of the names of the applicant, his mother and father should be made.
[8]
Orders
1. Application dismissed pursuant to s 55(1)(b) of the Civil and Administrative Tribunal Act 2013.
2. In accordance with s 64 of the Civil and Administrative Tribunal Act 2013, the disclosure of the name of the applicant, his mother or his father, or of any information or other material that may identify those persons is prohibited.
[9]
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: 02 January 2019