NSW Trustee and Guardian: Ms J Brouwer
File Number(s): 2012/00204640
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Judgment - EX TEMPORE
Before the Court is an application made by DR ("the applicant") for a stay of enforcement of an order apparently made by the Civil and Administrative Tribunal of New South Wales ("NCAT"), in its Consumer and Commercial Division, on or about 24 June 2015 to the effect that the applicant pay one ABK $3,877.14 for rent (referable to the period between 29 March 2015 and 24 June 2015) for premises in Hampden Road, Lakemba, NSW.
On 18 September 2015, an Appeal Panel of NCAT evidently dismissed an "internal appeal" brought by the applicant against that order, and lifted an interlocutory stay of the order.
The Court does not presently have the benefit of reasons for decision given by either the primary decision maker or the Appeal Panel. Whether written reasons were published by the primary decision maker is unknown; but, it seems, the Appeal Panel's reasons were given orally and not subsequently reduced to writing.
NCAT has power to appoint a guardian ad litem for a party (Civil and Administrative Tribunal Act 2013, NSW, section 45(4)); but the information presently available to the Court suggests that no guardian ad litem represented the applicant in any proceedings in the Tribunal.
This presents, or may present, a problem because at each of the times NCAT made a decision affecting the applicant he was legally incompetent.
Arguably, on that account alone, the Tribunal's orders are open to challenge: Murphy v Doman (2003) 58 NSWLR 51 at 58 to 61.
An associated problem with NCAT's primary decision (and, derivatively, with the Appeal Panel's decision) is, or may be, that it was made in the absence of the applicant (at a time, incidentally, when, it seems, he was appearing before this Court exercising protective jurisdiction): Taylor v Taylor (1979) 143 CLR 1. To the extent that the Tribunal was able to proceed against the applicant, notwithstanding that he was an incapable person, a question of procedural fairness, seemingly, remains as an impediment to any orders being effectively made against him.
The applicant's application for a "stay" may, more accurately, be described as an ex parte application for an interlocutory injunction.
The perceived necessity for the application arises from the applicant's apprehension that a sheriff (apparently operating out of the Burwood Local Court) proposes to levy execution against his personal property today for the purpose of enforcing NCAT's order(s).
The applicant approached the Court, after-hours, yesterday with a draft summons naming himself as "plaintiff" and the NSW Trustee and ABK as "defendants".
I leave that draft to one side for the moment in an endeavour to clarify the nature and scope of the application which, in substance, is made in proceedings, numbered 2012/00204640 in the Protective List of the Equity Division of this Court, relating to management of the applicant's estate.
Upon giving brief consideration to the applicant's application last night, I gave a direction for the NSW Trustee (formerly manager of the applicant's estate) to be invited to attend Court this morning with a view to ascertaining whether anything (and, if so, what) can and should be done to ensure that steps relating to management of the applicant's estate, and the enforcement of any just claim that may be charged against the estate, can be dealt with in an orderly way.
The NSW Trustee has attended before the Court and offered assistance, for which I am grateful.
The respondents to the application appear, in substance, to be ABK (as "judgment creditor"); the NSW Trustee (as the applicant's former protected estate manager); the Public Trustee of the Australian Capital Territory (as the applicant's current protected estate manager); and NCAT (as a statutory tribunal the orders of which may have been made without jurisdiction, and which may be liable to be restrained for the purpose of giving effect to a challenge to those orders).
I propose to proceed on that basis, but to keep the constitution of the application under advisement.
The interlocutory injunction sought by the applicant is an application for an order, for a limited time sufficient to allow affected parties to appear before the Court, that ABK, by himself, his servants and agents, be restrained from taking any steps in enforcement, or attempted enforcement, of orders made by NCAT, in proceedings between ABK and the applicant, without the prior leave of the Court or (I would add) without the written permission of the Public Trustee of the ACT as manager of the protected estate of the applicant.
I propose to make such an order, upon an exercise of the Court's inherent jurisdiction, for the purpose of aiding a proper management of the applicant's estate.
In the circumstances of this case, upon an exercise of protective jurisdiction, I do not propose, at this stage, to seek from the applicant any undertaking, or purported undertaking, as to damages as the price of the granting of an interlocutory injunction.
The applicant is a person who is "incapable of managing his affairs". In principle, subject to territorial considerations, that is sufficient to bring him within the protective jurisdiction of the Supreme Court of NSW, both statutory (under the NSW Trustee and Guardian Act 2009 NSW) and inherent (as described in PB v BB [2013] NSWSC 1223 and in the seminal judgment of the High Court of Australia in Marion's Case (1992) 175 CLR 218 at 258 - 259).
Between 17 March 2009 and 24 June 2015 the applicant was a "protected person" within the meaning of, first, the Protected Estates Act 1983 NSW and, then, upon the repeal and replacement of that Act, the NSW Trustee and Guardian Act 2009. That is because, throughout that time, there was in force an order of the Court declaring that the applicant's estate be subject to management under that New South Wales legislation.
Between 17 March 2009 and 21 June 2013 the manager of the applicant's protected estate was his wife, SEM.
On the later date, on the application of the NSW Trustee, the Court ordered that she be discharged from the office of manager, and that management of the applicant's estate be committed to the NSW Trustee.
This change in manager facilitated the conduct, and conclusion of, proceedings in the District Court of NSW in which the applicant (by his wife as tutor) had sued for damages for personal injury. Under the management of his wife, the proceedings had languished.
The NSW Trustee brought order to the process, resulting in a settlement that gave the applicant an award of compensation in the sum of $120,000 plus costs. That award was approved by a judge of the District Court on 2 May 2014.
Although party to court proceedings in New South Wales, the applicant and his family were, by this time, resident in the Australian Capital Territory.
On 6 May 2014, the ACT Civil and Administrative Tribunal ("ACAT") made orders, under the Guardianship and Management of Property Act 1991 ACT, section 8, to the effect that the Public Trustee for the Australian Capital Territory be appointed manager, to "manage all the property of [the applicant] with… all the powers that [the applicant, a protected person] would have been entitled to exercise if he were legally competent to exercise powers in relation to his property himself."
That appointment, renewed from time to time, continues to this day.
The applicant's affairs, in terms of the management of his property, are under the protected estate management of the Public Trustee for the ACT.
At the invitation of the Public Trustee for the ACT, the NSW Trustee continued until 24 June 2015 as manager of the applicant's protected estate in New South Wales. It did so for the purpose of winding up the applicant's affairs in New South Wales and transferring property of the applicant to the Public Trustee in the Australian Capital Territory.
This was a complicated exercise that required a substantial devotion of resources, and time, by officers of the NSW Trustee.
On 24 June 2015 the Court revoked its management orders of 17 March 2009 and 21 June 2013, and discharged the NSW Trustee from the office of protected estate manager, subject to ancillary orders for the winding up of the NSW management regime and for the transfer of the applicant's property (largely, the balance of his compensation moneys after substantial debts had been paid or provided for) to the Australian Capital Territory.
On a subsequent occasion the proceedings returned to court, informally, because of an administrative impediment, in the Office of the NSW Trustee, relating to a transfer of property to the Public Trustee of the Australian Capital Territory.
However, what occurred on that occasion does not change the basic chronology required to be kept in mind for these proceedings, or the nature of the proceedings presently before the Court.
Past experience confirms me in the view that the Court's protective jurisdiction depends, in large measure, for its effective operation, on the assistance available to the Court through an "executive arm" available, under present legislative arrangements, via the NSW Trustee.
I propose to grant for a short time, an interlocutory injunction for the purpose of bringing some order to what appears to be a series of practical problems requiring order, relying largely on the NSW Trustee to ascertain what is happening, and how best to deal with facts as they may be discovered.
Accordingly, I make orders and notations to the following effect:
1. ORDER, up to and including 16 May 2016 or further order, that ABK, by himself, his servants and agents, be restrained from taking any steps in enforcement, or attempted enforcement, of any order made against DR, in proceedings between DR and ABK numbered AP15/40746 in NCAT, requiring, or purporting to require, DR to pay money.
2. ORDER that order 1 is to operate subject to any further order made by the Court, or any written direction given by the Public Trustee for the Australian Capital Territory for the payment of moneys by or on the account of DR.
3. ORDER that the application of DR for injunctive relief relating to proceedings between him and ABK be listed for further consideration before the Protective List Judge on 16 May 2016 at 9.30 am.
4. RESERVE to all parties to the application (ABK, the NSW Trustee, the Public Trustee of the Australian Capital Territory and NCAT) liberty to apply to the Protective List Judge or any other judge of this Court, generally.
5. ORDER that the NSW Trustee cause a copy of these orders, and reasons for judgment published in aid of the orders, to be served as soon as may be practicable on each respondent to DR's application and the Sheriff operating out of Burwood Local Court.
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Decision last updated: 04 May 2016