On 21 January 2022 DYH applied to the Tribunal for administrative review in respect of a request made to the NSW Trustee and Guardian (NSWTG), appointed in 2019 to manage her mother's affairs, that it conduct an inventory of property and valuables before the sale of the house in which her mother had previously lived. The applicant alleged that items were being sold and removed from the property by her sister and brother.
On 7 February 2022 the applicant lodged an application for miscellaneous matters, requesting orders that her siblings return "all the personal house contents" including furniture and jewellery, and personal items of the applicant. That application appears to be an application made under s 60 of the Administrative Decisions Review Act 1997 (the ADR Act) for an order "staying or otherwise affecting" the operation of the decision under review.
The Tribunal has made an order under s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (the NCAT Act). In these reasons the applicant's name has been anonymised, and her mother, sister and brother, are not identified.
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Background
An order was made in August 2021 in separate court proceedings for sale of the house, with settlement of the sale due on 25 March 2022. The applicant provided with her application for review a copy of a letter sent to the NSWTG on 15 December 2021 in which she stated that she had "continued to request" an inventory of property and valuables of her mother, and her personal property. She estimated the value of furniture and other property at the home to be $55,000, her mother's valuable jewellery at $40,000, and her personal property still at the home at $80,000.
On 1 March 2022 the NSWTG informed the Tribunal that it decided on 24 February 2022 to conduct an inventory before settlement on the sale of the house on 25 March 2022. On 15 March 2022 the NSWTG provided an inventory conducted by an external service provider.
The applicant contends that the inventory is incomplete, having been conducted when access was denied to a container which is to be shipped overseas, and one room in the house. The applicant alleges that valuable jewellery of her mother, valued at $40,000; her personal belongings valued at $80,000; and personal photos and other household items, are missing, and that her mother's items have been "sold, ransacked and removed" by her sister and brother without accountability from the trustees.
The NSWTG has applied for dismissal of the proceedings under s 55(1)(b) of the NCAT Act, contending that the Tribunal has no jurisdiction. The parties provided written submissions, and the application was heard on 26 April 2022. For the reasons that follow, the application for summary dismissal of the proceedings is granted.
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Jurisdiction of the Tribunal
Section 28 of the NCAT Act provides that the Tribunal "has such jurisdiction and functions as may be conferred or imposed on it by or under this Act or any other legislation". The ADR Act provides for the circumstances in which the Tribunal has administrative review jurisdiction over a decision of an administrator.
Section 55 of the ADR Act provides that the Tribunal has jurisdiction to review "an administratively reviewable decision", defined in s 7 to be "a decision of an administrator over which the Tribunal has administrative review jurisdiction".
Section 9 provides that the Tribunal has administrative review jurisdiction over a decision of an administrator "if enabling legislation provides that applications may be made to the Tribunal for an administrative review under this Act of any such decision". The "enabling legislation" is legislation (other than the ADR Act or the NCAT Act) that provides for applications to be made to the Tribunal with respect to a specified matter or class of matters, or otherwise enables the Tribunal to exercise functions with respect to a specified matter or class of matters: ADR Act, s 4(1); NCAT Act, s 4(1).
Part 4.5 of the NSW Trustee and Guardian Act 2009 (NSWTG Act) provides for management of estates by the NSWTG. Section 56 provides that the NSWTG has and may exercise in respect of the estate of a managed person, "(a) all functions necessary and incidental to its management and care". Section 62 provides:
62 Administrative review by NCAT of decisions by NSW Trustee under this Division
(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.
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Regulation 45 of the NSW Trustee and Guardian Regulation 2017 (the Regulation) provides:
45 Review by NCAT of estate management decisions of NSW Trustee
All decisions made by NSW Trustee in connection with the exercise of NSW Trustee's functions under Division 1 of Part 4.5 of the Act are prescribed for the purposes of section 62 (1) (b) of the Act.
The effect of s 62(1) of the NSWTG Act and regulation 45 is that the Tribunal has jurisdiction to review all decisions made by the NSWTG "in connection with the exercise of" its functions in managing the estate of a protected person under Part 4.5 of the NSWTG Act.
The subject of any administrative review application to the Tribunal is a "decision", a term defined in s 6 of the ADR Act:
6 Meaning of "decision"
(1) General meaning A decision includes any of the following:
(a) making, suspending, revoking or refusing to make an order or determination,
(b) giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or permission,
(c) issuing, suspending, revoking or refusing to issue a licence, authority or other instrument,
(d) imposing a condition or restriction,
(e) making a declaration, demand or requirement,
(f) retaining, or refusing to deliver up, an article,
(g) doing or refusing to do any other act or thing.
(2) Decision made under enabling legislation For the purposes of this Act, a decision is made under enabling legislation if it is made in the exercise (or purported exercise) of a function conferred or imposed by or under the enabling legislation.
(3) Decisions made without power For the purposes of this Act (and without limiting subsection (2)), a decision that purports to be made under enabling legislation is taken to be a decision made under the enabling legislation even if the decision was beyond the power of the decision-maker to make it.
(4) Failure to make decision on basis that beyond power For the purposes of this Act (and without limiting subsection (2)), a refusal of a decision-maker to make a decision under enabling legislation because the decision-maker considers that the decision concerned cannot lawfully be made under the enabling legislation is taken to be a decision made under the enabling legislation to refuse to make the decision requested.
(5) Failure to make a timely decision taken to be failure to make a decision For the purposes of this Act, a failure by a decision-maker to make a decision within the period specified by the enabling legislation concerned for making the decision is taken to be a decision by the decision-maker at the end of the period to refuse to make the decision.
Section 7 of the ADR Act provides:
7 Meaning of "administratively reviewable decision"
(1) An administratively reviewable decision is a decision of an administrator over which the Tribunal has administrative review jurisdiction.
(2) For the avoidance of doubt (and without limiting subsection (1) or section 6):
(a) the conduct of an administrator (or a refusal by an administrator to engage in conduct) is an administratively reviewable decision if enabling legislation identifies that conduct or refusal as conduct or refusal over which the Tribunal has administrative review jurisdiction, and
(b) in its application to any such conduct or refusal by an administrator, any reference in this Act (however expressed) to an administrator making an administratively reviewable decision includes a reference to an administrator engaging or refusing to engage in the conduct.
In an administrative review under the ADR Act the Tribunal is to decide what is "the correct and preferable decision"; and the Tribunal may affirm, or vary, the administratively reviewable decision, or set it aside and either make a new decision in substitution or remit the matter for reconsideration by the administrator: ADR Act, s 63.
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Application for summary dismissal
The NSWTG contends that the only reviewable decision in this matter is that to undertake an inventory. The NSWTG submits that the grievances of the applicant regarding the alleged sale and removal of items by her siblings without accountability from the NSWTG are not matters for determination by the Tribunal. The NSWTG submits that the applicant has not identified an administratively reviewable decision of the NSWTG; the application appears to be founded on the applicant's belief that her siblings and/or the NSWTG are acting improperly and that such actions are causing loss to the applicant and her mother. The NSWTG does not consider those allegations to be true or based on any evidence, or that that the Tribunal has jurisdiction to review the conduct of the NSWTG as financial manager. The issue of the NSWTG not conducting an inventory has fallen away, as during the course of the proceedings an inventory was conducted and a detailed report provided to the applicant. Should the applicant have issues regarding the inventory itself or the conduct of her siblings or the NSWTG, the Tribunal is the incorrect forum.
The applicant opposed the application for summary dismissal, and sought orders that the matter be remitted to the NSWTG to complete an investigation of the inventory and the whereabouts of her mother's possessions and her property and valuables. The applicant submits that the NSWTG has failed before the inventory to stop theft and removal or to give the applicant information, in breach of the Model Litigant Policy and the privacy legislation, and that the NSWTG's legal representative and trustee officers have not complied with their obligations to protect the best interests of their client. She submits that she had provided a list before the inventory was conducted on 8 March 2022 and that what was left at the property was minimal, and that removalists had attended the property on 13 March 2022. She wants to know where the household contents including refrigerator and sofa, and the jewellery, are.
The Tribunal's power to dismiss proceedings is conferred by s 55 of the NCAT Act. The application is brought pursuant to s 55(1)(b):
55 Dismissal of proceedings
(1) The Tribunal may dismiss at any stage any proceedings before it in any of the following circumstances -
…
(b) if the Tribunal considers that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance,
…
The first issue to consider is whether there is an administrative reviewable decision. The NSWTG's submission is that the only reviewable decision is the decision of the NSWTG to undertake an inventory, and that allegations of the sale or removal of belongings by the applicant's siblings are not the subject of the review in these proceedings.
There is no dispute that the applicant requested the NSWTG to undertake an inventory. The Tribunal was informed that it is NSWTG policy to undertake an inventory when a property is vacant. None of the documents provided to the Tribunal by the applicant indicate a refusal by the NSWTG to make a decision in response to her request; rather, the position appears to be that the NSWTG had not yet made a decision until the decision on 24 February 2022 to undertake an inventory.
It is not clear that as at the date the application was lodged, on 21 January 2022, there was a "decision" as defined in s 6 of the ADR Act that could be an "administratively reviewable decision". Subsections (4) and (5) of s 6 specify the circumstances in which a failure by a decision-maker to make a decision is taken to be a decision to refuse to make a decision: under s 6(4), if the decision-maker has refused to make a decision "because the decision-maker considers that the decision concerned cannot lawfully be made under the enabling legislation"; and under s6(5), where the decision-maker has failed to make a decision "within the period specified by the enabling legislation". Neither circumstance applies in this matter. Further, in the absence of any provision in the enabling legislation identifying any specific conduct or refusal as a conduct or refusal over which the Tribunal has administrative review jurisdiction, s 7(2) of the ADR Act does not apply.
Even if there were a "decision" as defined in s 6, the applicant has not provided any confirmation that, as stated on her application for review, there had been an internal review of such a decision as required under s 55(3) of the ADR Act for the Tribunal to have jurisdiction. It is not necessary, however, to decide whether the Application for Miscellaneous Matters lodged on 7 February 2022, if treated as an application for an order under s 60 of the ADR Act, might provide a basis for an order under s 55(4) of the ADR Act to enable the Tribunal to continue to deal with the application for administrative review in the absence of an internal review request. Even if that were the case, for the reasons that follow, the proceedings should be dismissed.
The applicant's letter of 15 December 2021 raised issues in addition to the request for an inventory. However, the application for administrative review specified only the request for an inventory as the basis for the application. An inventory has been conducted. There is no utility in the proceedings continuing, the applicant having obtained the outcome sought in the application.
The additional issues raised by the applicant concerning the alleged theft and removal of items, or the conduct of the NSWTG or its officers, or the conduct of the applicant's siblings, are not administratively reviewable decisions, and the Tribunal has no power to consider or determine those grievances. The Tribunal does not have a broad jurisdiction to review either the decisions or the conduct of government agencies. The Tribunal must be given specific review jurisdiction, relevantly under the legislation providing for the decision to be made by the agency. The same is true of review of conduct. In seeking to have reviewed decisions or conduct that are beyond the administrative review jurisdiction powers given to the Tribunal by the ADR Act and the NSWTG Act and Regulation, the application is misconceived.
The Tribunal concludes that the application for administrative review, and the associated application for miscellaneous matters, lack utility and are misconceived. The proceedings should be dismissed under s 55(1)(b) of the NCAT Act.
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Orders
The Tribunal orders:
1. The application for dismissal under s 55(1)(b) of the Civil and Administrative Tribunal Act 2013 is granted and the proceedings are dismissed.
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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: 12 May 2022