The appellant sought administrative review in the Tribunal of what he said were several decisions made by the respondent (the NSW Trustee). He said that the NSW Trustee had decided to sell the home of his partner, being a person with dementia, and to pay a refundable accommodation deposit of over $300,000 to an aged care facility.
The Tribunal dismissed the appellant's application to the Tribunal for review on the basis that the NSW Trustee was considering making those decisions but had not yet done so. It found that it therefore did not have jurisdiction to determine an application for review of the decisions.
The appellant argued on appeal that the Tribunal was wrong to find that the NSW Trustee had not made the decisions and it did not have jurisdiction.
We have concluded that the Tribunal did not make any error and have dismissed the appellant's appeal.
[2]
Background
The appellant has been the partner of a woman in her mid-seventies (the protected person) since the early 2000s. He lived with the protected person in a home owned by her from about 2006 (the family home). The protected person was diagnosed with dementia in early 2017.
In about January 2018, the Guardianship Division of the Tribunal appointed the Public Guardian as the protected person's guardian with an accommodation function. In about February 2018, the Guardianship Division ordered that her estate be subject to management under the NSW Trustee and Guardian Act 2009 (NSW). It appointed the NSW Trustee as the protected person's financial manager.
In about March 2018, the protected person moved into an aged care facility. The appellant remained in the family home.
The residential agreement with the aged care provider provided that the accommodation payment could be paid by way of a refundable accommodation deposit (RAD) of $370,000 (as a lump sum) or by paying a daily accommodation payment (DAP) of $57.98 per day. The appellant paid the DAP for the protected person.
The NSW Trustee formed the view that the de facto relationship between the appellant and the protected person had broken down and proposed a property settlement. The appellant denied that the relationship had broken down.
In August 2019, the NSW Trustee commenced proceedings in the Federal Circuit Court. In a decision in June 2020, that court found that the relationship between the protected person and the appellant had come to an end by 25 May 2018 and that the appellant was no longer the de facto spouse of the protected person. However, that decision was set aside in December 2020 after a successful appeal to the Family Court. The Family Court found that the appellant remained the de facto spouse of the protected person.
On 18 October 2019, the appellant wrote to the NSW Trustee seeking internal review of several decisions. These included the "decision to only pursue the option of payment of the RAD bond" to the operator of the aged care facility where the protected person resided and the subsequent decision to "move to the sale" of the protected person's property.
On 29 November 2019, the NSW Trustee (through an officer) emailed the appellant. The email stated that the NSW Trustee had not made any decision regarding the payment of the protected person's RAD bond and therefore no review of that decision was possible. The email also stated that the NSW Trustee had not made any decision concerning the sale of the protected person's property.
On 30 March 2020, the appellant wrote to the NSW Trustee seeking internal review of a decision. That decision was said to be expressed in an email sent to him by an officer of the NSW Trustee stating: "you are not authorised to reside in the property." The appellant also sought internal review, in that letter, of the NSW Trustee's decision to pay a RAD. He stated that, whilst the NSW Trustee denied it had made this decision, the affidavit of a Ms Sherlock dated 24 January 2020 indicated otherwise. The internal review application of 30 March 2020 did not seek review of any decision to sell the protected person's home.
On 3 April 2020, the internal reviewer at the NSW Trustee stated in an email that no formal decision had been made in relation to the protected person's property or payment of the RAD so she was not able to proceed with an internal review.
On 8 March 2021, the appellant applied to the Tribunal for review of what he described in his application as "a series of significant and adverse decisions against the financial, welfare and expressed wishes of" the protected person. The "key adverse decision" was identified as being the NSW Trustee's decision "to proceed only to making the payment of [the protected person's] accommodation fees as a lump sum RAD (approx. $390,000) which would require the sale of [the protected person's] property." The appellant referred, in his application to the Tribunal, to the NSW Trustee's decision to "obtain a property settlement and proceed with the eviction of" the appellant and to its bringing of legal proceedings against him. However, the application did not clearly indicate that he sought review of those decisions.
On 28 March 2021, the appellant filed submissions and evidence in support of his administrative review application. He contended that the NSW Trustee had decided to pay a RAD and to sell the family home and that it had denied that a formal decision had been made "in what is blatantly an administrative attempt to avoid any scrutiny of their actions." He stated that a solicitor acting for the NSW Trustee, Ms Sherlock, made an affidavit on 5 August 2019 in which she "pressed for the immediate sale of the property on the basis that [the protected person] had no means to pay the RAD".
The NSW Trustee filed submissions seeking to have the application summarily dismissed. In those submissions, the NSW Trustee claimed that it had not made an administratively reviewable decision. It stated that it had not made any decision regarding the payment of a RAD or the sale of the protected person's property. It also stated in those submissions:
"NSW Trustee have made statement regarding the need to pay a RAD during litigation between the parties and Family Court judgments have considered the objective need to sell the property to pay liabilities. NSW Trustee do not consider that these statements amount to the making of an order or determination pursuant to section 6(a) of the ADR Act [the Administrative Decisions Review Act 1997 (NSW)].
The position outlined by NSW Trustee in the email to [ERA] on 29 October 2019 has not changed. The progress of family law litigation has stunted any decision regarding the payment of a RAD and [the protected person's] accommodation does not appear to be at risk whilst [ERA] continues to pay a Daily Accommodation Payment on behalf of [the protected person]. NSW Trustee has not undertaken the necessary consultation regarding the decisions that [ERA] purports have been made and there are no records of any submissions or decisions of any delegate of NSW Trustee.
NSW Trustee await the finalisation of the family law litigation between [ERA and the protected person] before any consideration can be given to the accommodation expenses of [the protected person]."
On 21 May 2021, the Tribunal gave an ex tempore decision. It made an order extending time for the making of the application, presumably under s 41 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), as follows:
"By consent the parties agree that the application having been received by the Tribunal (subject to jurisdiction) can be determined by the Tribunal and that the application has therefore been received within time."
The Tribunal decided that it did not have jurisdiction to determine the matter because there was no administratively reviewable decision before it and dismissed the proceedings under s 55(1)(b) of the NCAT Act.
The appellant filed a notice of appeal on 22 June 2021. He stated in the Notice of Appeal that he received notice of the Tribunal's decision of 21 May 2021 on 25 May 2021. That was not challenged by the respondent. Assuming that this is correct, the appeal has been filed within time (see NCAT Act, s 40; Civil and Administrative Tribunal Rules 2014 (NSW), r 25(4)(c)). If the appellant was notified of the decision (apparently given orally) on 21 May 2021, as would be the usual course, we would extend time for the bringing of the appeal under s 41 of the NCAT Act, given the shortness of the delay and the circumstance that there was no objection by the respondent to the lodgement of the appeal on 22 June 2021.
[3]
Non-disclosure orders
As indicated above, the appellant is the partner of the protected person. A financial management order was made in respect of the protected person by the Guardianship Division of this Tribunal.
The publication of the name of a person who appears as a witness before the Tribunal in proceedings in the Guardianship Division, or the name of any person to whom such proceedings relate, is prohibited under s 65 of the NCAT Act. It is therefore appropriate that the appellant's name not be published, as the disclosure of his identity could reveal that of the protected person.
We are satisfied, for this reason, that it is desirable to make an order prohibiting the disclosure of the names of the appellant (ERA) and his partner, the protected person (EPX), pursuant to s 64(1)(a) of the NCAT Act, and have made such orders of our own motion.
[4]
Appeal grounds
The appellant challenges, on appeal, the Tribunal's decision to dismiss his application.
In his Notice of Appeal, under the heading "Grounds of Appeal," the appellant states that the Tribunal has jurisdiction under the Administrative Decisions Review Act 1997 (NSW) (he sets out ss 3, 6, 7 and 9), the NCAT Act (he sets out ss 5 and 30) and the NSW Trustee and Guardian Act (he sets out s 62).
At the hearing, the appellant indicated that his case on appeal is that the Tribunal's decision that it does not have jurisdiction to review the decisions the subject of his application is wrong.
[5]
The jurisdiction of the Appeal Panel
There is no dispute that the decision of the Tribunal from which the appellant seeks to appeal is an "internally appealable decision" to the Appeal Panel: see ss 32(4) and 80(1) of the NCAT Act.
The decision from which the appellant seeks to appeal is also an "interlocutory decision," which is defined to include a decision concerning "the summary dismissal of proceedings" (NCAT Act, s 4; see also Garry Pickering v Michael Munchol Yi and Heeja Yi [2015] NSWCATAP 161). An internal appeal may be made from an interlocutory decision of the Tribunal at first instance, with the leave of the Appeal Panel (NCAT Act, s 80(2)).
The principles to be applied when deciding whether to grant leave from an interlocutory decision are to be derived from the principles applicable to leave applications in courts: Champion Homes Pty Ltd v Guirgis [2018] NSWCATAP 54 at [35]. One of those principles is that where an interlocutory decision effectively determines the substantive rights of the parties, that may be a significant factor in favour of granting leave to appeal.
We have decided to grant leave to the appellant to appeal from the interlocutory decision dismissing his application. That is principally because the decision determines his substantive rights. As the Appeal Panel observed in BDK v Department of Education [2015] NSWCATAP 129 at [15] and Garry Pickering v Michael Munchol Yi and Heeja Yi [2015] NSWCATAP 161 at [50], an applicant is deprived by the summary dismissal of his or her application of any substantive hearing of the substance of his claim. In addition, the appellant relies upon an affidavit by an officer of the NSW Trustee which supports his claim that the NSW Trustee made reviewable decisions and raises the question of what constitutes a reviewable decision. This warrants consideration on appeal. We are of the opinion that it is in the interests of justice that he be granted leave to appeal.
[6]
Was the Tribunal wrong to find that it did not have jurisdiction?
The question of whether the Tribunal erred in finding that it did not have jurisdiction to hear and determine the appellant's administrative review application depends principally upon whether the NSW Trustee had made a reviewable decision or reviewable decisions. It is convenient to set out the statutory scheme conferring jurisdiction on the Tribunal to review administrative decisions.
[7]
Relevant legislative provisions
The Tribunal's administrative review jurisdiction is conferred by an interwoven chain of legislative provisions.
The NCAT Act provides that the Tribunal has "such jurisdiction and functions as may be conferred or imposed on it by or under [the NCAT Act] or any other legislation" (NCAT Act, s 28(1)). Its jurisdiction includes the administrative review jurisdiction of the Tribunal (NCAT Act, s 28(2)(b)). The NCAT Act also provides that the Administrative Decisions Review Act provides for the circumstances in which the Tribunal has administrative review jurisdiction over a decision of an administrator (NCAT Act, s 30(1)).
Section 9(1) of the Administrative Decisions Review Act deals with the circumstances in which the Tribunal has "administrative review jurisdiction." It provides:
9 When administrative review jurisdiction is conferred
(1) The Tribunal has administrative review jurisdiction over a decision (or class of decisions) 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 (or class of decisions) made by the administrator:
(a) in the exercise of functions conferred or imposed by or under the legislation, or
(b) in the exercise of any other functions of the administrator identified by the legislation.
Subsections 6(1) and (2) of the Administrative Decisions Review Act provide, in relation to the meaning of "decision", as follows:
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.
The NSW Trustee and Guardian Act is "enabling legislation" within the meaning of that term, as it is defined in s 4(1) of the Administrative Decisions Review Act. Section 62(1) of the NSW Trustee and Guardian 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.
There is no dispute that the appellant is an "affected person" within s 62(1). Clause 45 of the NSW Trustee and Guardian Regulation 2017 (NSW) provides that 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 NSW Trustee and Guardian Act are prescribed for the purposes of section 62(1)(b) of the Act. Division 1 of Part 4.5 concerns the management of estates (such as the protected person's estate) by the NSW Trustee.
If an administrator makes an administratively reviewable decision, an interested person may apply for an internal review of that decision under s 53 of the Administrative Decisions Review Act. An "administratively reviewable decision" is a decision of an administrator over which the Tribunal has administrative review jurisdiction (Administrative Decisions Review Act, s 7(1)).
An internal review is taken to be finalised if the applicant is notified of the outcome of the review or (generally) the applicant is not notified of the outcome of the review within 21 days after the application for internal review is lodged (Administrative Decisions Review Act, s 53(9)).
An application may not be made to the Tribunal by an interested person who was entitled to seek an internal review of the administratively reviewable decision, unless the person has duly applied for such an internal review and the review is taken to have been finalised (Administrative Decisions Review Act, s 55(3)).
Subject to enabling legislation, an application is to be made in the time and manner prescribed by the procedural rules (Administrative Decisions Review Act, s 55(2)). The Civil and Administrative Tribunal Rules provide, relevantly, in r 24(3)(b) and (4)(a), that an application to the Tribunal must be made within 28 days after the day on which the internal review is taken to have been finalised under section 53(9) of the Administrative Decisions Review Act.
[8]
Did the NSW Trustee make an administratively reviewable decision?
A decision to pay to an aged care facility a RAD out of the estate of a protected person and a decision to sell a protected person's home are both decisions to which s 62(1) of the NSW Trustee and Guardian Act applies and are both "administratively reviewable decisions" within the Administrative Decisions Review Act.
We are not persuaded, however, that the NSW Trustee had made a decision:
1. to pay the RAD when the appellant applied for internal review of that "decision" in March 2020; or
2. to sell the protected person's home when the appellant applied for internal review of that "decision" on 18 October 2019.
In support of his contention that the NSW Trustee had made both decisions, the appellant relied in his submissions to the Tribunal made on 4 May 2021 upon an affidavit of a legal officer of the NSW Trustee, Ms Sherlock, sworn on 5 August 2019 in the family law proceedings. In the affidavit, Ms Sherlock deposes as follows:
"30. The NSW Trustee requires $370,000 in order to pay for [the protected person's] Refundable Accommodation Deposit ['RAD'] for [the protected person].
31. [The protected person's] liquid assets are insufficient to pay the RAD and [the protected person] is currently charged a daily accommodation payment ['DAP'] which is a payment payable when a resident cannot pay the RAD.
…
33. It is the view of the NSW Trustee that it is just and equitable and in [the protected person's] best interest for her property to be immediately sold in order to have sufficient monies to be able to pay the RAD as well as to pay for personal comforts.
…
35. The NSW Trustee requires an immediate order requiring [the appellant] to vacate [the protected person's] property to enable to the property to be sold and the proceeds applied for her benefit."
This provides some evidence of a decision by the NSW Trustee to sell the property and pay the RAD. The NSW Trustee submitted to the Tribunal, however, in its written submissions, that although it had "made statements regarding the need to pay a RAD during litigation between the parties," it did "not consider that these statements amount to the making of an order or determination pursuant to section 6(a) of the ADR Act." It also submitted: "NSW Trustee has not undertaken the necessary consultation regarding the decisions that [the appellant] purports have been made and there are no records of any submissions or decisions of any delegate of NSW Trustee." Further, it submitted that it would make a decision on those matters following the finalisation of the family law litigation, including the determination of an application for special leave to the High Court.
The Tribunal referred, in its reasons, to the NSW Trustee's oral submissions before it. It had been submitted by Mr McCarthy, on behalf of the NSW Trustee, that investigations had occurred and some steps had been taken to explore legal avenues, but no decision as to the payment of the RAD or the sale of the property had been made. He submitted that as the protected person was in stable and secure accommodation with her fees being paid, she was not vulnerable and her estate was being managed in her best interests.
The Tribunal referred, in its reasons, to relevant parts of Ms Sherlock's affidavit, and commented: "if those matters in that affidavit did constitute an administratively reviewable decision then the application to the Tribunal would be well out of time." The Tribunal considered that the NSW Trustee had not made an administratively reviewable decision, reasoning:
"In my view, the views expressed by the Trustee and the actions taken by the Trustee illustrate a determination for whatever reason to realise sufficient funds from the estate of the person under management, [the protected person], to pay the refundable accommodation deposit. However, I find on the available evidence that that position and that course of conduct remains absent of a decision, which is administrative [sic] reviewable, at this stage.
In my view, the NSW Trustee is yet to make an administrative [sic] reviewable decision in respect of whether ultimately a lump sum RAD in the high 300,000 dollars will be paid for [the protected person] and whether to do that, the house will determined to be sold. It may be ultimately that depending on how legal proceedings eventuate the Trustee will never be in a position to make a determination about the sale of the property in the immediate future. Or in the alternative, if it is to make that decision, that is a decision that it will make in the future."
The finding that the NSW Trustee had not decided to sell the protected person's home, or to pay the RAD, was a finding of fact. The appellant has not demonstrated that this factual finding was plainly wrong.
The circumstance that the NSW Trustee maintained that no decision had been made to pay the RAD or to sell the property at the time of the Appeal Panel hearing tends to confirm that no such decisions had been made before the appellant's internal review applications in October 2019 and March 2020. It was not in dispute that the NSW Trustee had neither listed the property for sale, nor paid the RAD, at the time of the appeal hearing in September 2021.
In its submissions on appeal dated 19 August 2021, the NSW Trustee indicated that the decision to pay a RAD "is currently deferred until the finalisation of family law proceedings" between the protected person and the appellant. The NSW Trustee made reference to the hearing of an application for leave to appeal to the High Court in October 2021.
We are not persuaded that the NSW Trustee had made a decision to sell the protected person's property or pay the RAD at the relevant times. Whilst the affidavit of Ms Sherlock provides some evidence supporting the appellant's contention that such decisions were made, that affidavit was made in the context of family law proceedings in which the NSW Trustee was seeking orders that the relationship between the appellant and the protected person had come to an end. Any "decision" to pay the RAD or sell the home, as reflected in that affidavit, appears to have been contingent upon the court making the orders sought (and those orders not being overturned on appeal). Further, as the NSW Trustee pointed out in the submissions, there is a difference between taking a position in court proceedings, and a delegate making a decision with operative effect.
The appellant also referred to an application for review of the NSW Trustee's decision to take legal action against him. The internal review applications do not appear to us to seek internal review of this decision. If we are wrong about this, the application to the Tribunal refers to the family law proceedings but does not plainly raise the decision to commence those proceedings as a decision of which the appellant seeks review.
In any event, the Tribunal found that, if the decision "to expend funds of the estate to proceed with litigation" is administratively reviewable, "any application is significantly out of time and not sufficiently before the Tribunal." The appellant has not identified any error in the Tribunal's refusal to extend time for the making of an application to review the decision to litigate, even if it was before the Tribunal.
For these reasons, the appellant has not discharged his onus of satisfying us that the Tribunal's decision that it did not have jurisdiction to hear and determine his application for review was in error. Accordingly, we have decided to dismiss the appeal.
[9]
Orders
For the reasons given above, we make the following orders:
1. Disclosure of the name of the appellant is prohibited.
2. Disclosure of the name of the appellant's partner, EPX, is prohibited.
3. To the extent necessary, the time for making an appeal against the decision of the Tribunal made on 21 May 2021 is extended to 22 June 2021.
4. Leave to appeal is granted.
5. The appeal is dismissed.
[10]
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 April 2022