DYH v NSW Trustee and Guardian

NCAT Administrative and Equal Opportunity|2022-06-29

REASONS FOR DECISION

On 4 March 2022, DYH (the "Applicant") applied to the Tribunal for administrative review in respect of a purported decision made by the NSW Trustee and Guardian which organisation was appointed some years ago to make financial decisions for DYH's mother "AA" pursuant to a financial management order. The applicant seeks review of matters contained in a letter from the respondent dated 4 March 2022 as follows: The NSWTG has failed to comply with model litigant policy, and the obligations of the fiduciary duty to protect the subject person AA from neglect, abuse and financial exploitation. All parties, family members, executors and beneficiaries of AA's estate have the right to be provided with bank statements, financial information, and be consulted with decisions and changes, as a stakeholder and relevant party to all administration changes and requests made by any other family member . The increase of weekly allowance from 100 per week to 250 per week, has not been properly justified, and a was financially exploited.
The Applicant agreed her application seeks for the Tribunal to review the following matters: 1. That the Respondent has breached the Model Litigant Policy. 2. The Respondent provide access to information (bank statements and so on). 3. Review of a decision which the Respondent previously made, namely, the increase of a weekly allowance from $100 per week to $250 per week which has not been properly justified.
On 21 April 2022, the Respondent lodged an application for miscellaneous matters, requesting dismissal of the application pursuant to s 55(1)(b) of the Civil and Administrative Tribunal Act 2013 (NCAT Act).

Request for copies of bank statements, legal invoices and other outgoings (item b in [2] above) NSWTG is obliged to protect the privacy of its customers and just because a person is under a financial management order does not mean that private financial information, including statements and invoices, can automatically be provided to third parties, including family members. NSWTG consults with family members about significant decisions and within reason, general financial information can be provided. To do different would require a decision to determine if it is appropriate to override the person's right to privacy and to consider the resource implications of responding to frequent requests about individual decisions. NSWTG confirms that trustee services has not made any financial decisions, at this stage. That requires the input of key stakeholders, including family. Any significant financial decisions that require consultation will be carried out with you in accordance with our communication strategy that was notified to you on 23 February 2022. Thanks statements from Westpac and Bank of Sydney have been provided to you as part of the documents provided under section 58 of the administrative decisions review act in NCAT proceedings 2021/ 251242. This matter has been heard by the tribunal on 24 February 2022 and the decision has been reserved. Legal notices on behalf of AA are matters for NSW trustee and guardian as financial manager as part of the day-to-day management of her affair stop management fees charged to date are $630.58. Legal fees charged by NSW trustee and guardian a charge in accordance with regulation 10 of the NSW trustee and guardian act.

Justification for the $250 per week allowance (item c in [2] above) When NSWTG was appointed to manage your mother's financial affairs on 29 May 2019, our client establishment team set up an initial allowance of $100 per week. NSWTG makes decisions regarding allowances based on affordability and what income is available to meet expenditure (ie. cash flow) as full details are established, and allowances can be increased or decrease based on this information. Your mother's allowance was increased to $250 in November 2019 as NSWTG had a better understanding of your mother's regular expenses at that time. NSW TG does not expect our customers to provide an accounting of how their weekly allowance is spent as it is for their own personal use and can be used for anything.

The NSW Trustee and Guardian has applied for dismissal of the proceedings under s 55(1)(b) of the NCAT Act, contending that the proceedings are frivolous, vexatious or otherwise misconceived or lacking in substance. The parties provided written submissions, and the application was heard on the papers. For the reasons that follow, the application for summary dismissal of the proceedings is granted.

Jurisdiction of the Tribunal

Section 50(2) of the NCAT Act provides, that proceedings can be determined on the papers by an order dispensing with an oral hearing. The parties agree to such an order, which I make.
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 of the ADR Act 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).
Section 62 of the NSW Trustee and Guardian Act 2009 (the "TAG Act") 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. (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.
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.
Section 55 of the ADR Act provides: 55 Making of applications (1) An application for an administrative review under this Act of an administratively reviewable decision may only be made by an interested person. (2) Subject to enabling legislation, an application is to be made in the time and manner prescribed by the procedural rules. Note - The fees payable for applications are also prescribed by the regulations under the Civil and Administrative Tribunal Act 2013. (3) If the interested person was entitled to seek an internal review of the administratively reviewable decision, an application may not be made unless the person has duly applied for such an internal review and the review is taken to have been finalised under section 53 (9). (4) However, the Tribunal may deal with an application for the administrative review of an administratively reviewable decision even though the applicant has not duly applied for an internal review to which the applicant was entitled if the Tribunal is satisfied that: (a) the applicant made a late application for the internal review in circumstances where the person dealing with the application unreasonably refused to consider the application and the application to the Tribunal was made within a reasonable time following the administratively reviewable decision of the administrator concerned, or (b) it is necessary for the Tribunal to deal with the application in order to protect the applicant's interests and the application to the Tribunal was made within a reasonable time following the administratively reviewable decision of the administrator concerned. (5) In determining whether a late application for internal review was unreasonably refused or whether an application to the Tribunal was made within a reasonable time for the purposes of subsection (4), the Tribunal is to have regard to: (a) the time when the applicant became aware of the making of the decision, and (b) in a case to which subsection (4) (a) applies - the period prescribed by or under section 53 for the lodging of an application for an internal review, and (c) such other matters as it considers relevant. (6) The Tribunal may also deal with an application even though the applicant has duly applied for an internal review of the decision to which the application relates, and the review is not finalised, if the Tribunal is satisfied that it is necessary for the Tribunal to deal with the application in order to protect the applicant's interests.
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.

Application for summary dismissal

The Respondent contends that there is no disclosed administrative reviewable decision because the letter sent on 2 March 2022 is not an administrative reviewable decision.
My conclusions concerning the interim application for dismissal follow.

Failure to comply with Model Litigant Policy

In response to a request for the Tribunal to review and determine allegations the Respondent has failed to comply with the Model Litigant Policy, the Respondent submits that the Tribunal has no power in this application to hear and determine its conduct. I agree with that submission. When undertaking administrative review of an administrative reviewable decision, the Tribunal is confined to the above provisions. The Tribunal has no jurisdiction in the context of an application to undertake administrative review of a decision to consider the conduct of the Respondent. For this reason, that part of the Applicant's request to make a determination on whether the Respondent has failed to comply with the Model Litigant Policy is not an administrative reviewable decision and must be dismissed.

Provision of information and consultation with stakeholders

The Respondent contends that the Applicant has not identified any reviewable decision in this respect and that it has not made any financial decisions requiring input from key stakeholders.
The Respondent made a decision not to provide certain information to the Applicant as set out in the letter dated 2 March 2022. In doing so, it cites the protection of its customers' privacy, which, is in my view a legitimate consideration. The Respondent has also provided, other information to the Applicant, which, is set out in the decision.
A failure to consult with key stakeholders, is in my view, not a reviewable decision, but rather, a request to review the conduct of the Respondent. For the reasons set out above, the Tribunal does not have jurisdiction to review the Respondent's conduct in an application to review a decision under the ADR Act.
However, where that part of the Respondent's decision refuses to provide information to protect the privacy of AA, that decision is an administrative reviewable decision. But, the application is dismissed for the following reasons. What is obvious is that the Applicant has not sought an internal review of the decision made by the NSW Trustee and Guardian on 2 March 2022, in accordance with s55(3) of the ADR Act. That provision is a condition that must be complied with, unless, one of the exceptions in s55(4) of the ADR Act are satisfied. There is no evidence before me that either of the exceptions in s55(4) of the ADR Act apply. In either circumstance, there is no administrative review decision.
Taking the Applicant's case at its highest, I find that she has not complied with her obligation to seek internal review of the decision of the NSW Trustee and Guardian's decision of 2 March 2022 prior to filing her application seeking administrative review of that decision on 4 March 2022. The application in this regard must be dismissed.

Request for justification on the increase of the allowance

The Respondent accepts that the decision to increase the allowance is an administrative reviewable decision. However, the decision to do so was made in November 2019 and affirmed by the Respondent after undertaking an internal review, in April 2020.
Again, what is obvious, is, that if the Applicant wished to seek a review of the previous decision, she needed to submit a proposal for that to be done. In her letter of 8 February 2022 such a proposal is not set out in the request. Even if it had been, there was no request for the Respondent to undertake an internal review of its decision and, therefore, s 55(3) of the ADR Act has not been complied with. There is also no evidence that any of the exceptions as set out in s 55(4) of the ADR Act are satisfied.
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, …
Taking the Applicant's case at its highest, even where there may be, in part a reviewable decision, I find that the Applicant has not complied with her obligation to seek internal review of the decision of the NSW Trustee and Guardian on 2 March 2022, prior to filing her application seeking administrative review of that decision on 4 March 2022. There is also no evidence of either of the exceptions in s 55(4) of the ADR, having been satisfied.
I conclude the application for administrative review, lacks utility, it is misconceived and is lacking in substance. The proceedings should be dismissed under s 55(1)(b) of the NCAT Act.
Therefore, the request by the NSW Trustee and Guardian for the matter to be dismissed is granted.

ORDERS 1. A hearing is dispensed with pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013. 2. The proceedings are dismissed pursuant to s55(1)(b) of the NCAT Act.

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: 29 June 2022

Trustee and Guardian Act 2009(NSW)

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Judgment (11 paragraphs)

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