AFM v NSW Trustee and Guardian

[2012] NSWADTAP 17

Administrative Decisions Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:

AFM v NSW Trustee and Guardian [2012] NSWADTAP 17

Hearing dates:

21 December 2011

Decision date:

29 May 2012

Jurisdiction:

Appeal Panel - External

Before:

Magistrate N Hennessy, Deputy President
P Molony, Judicial Member
A Wunsch, Non-judicial Member

Decision:

(1) The Guardianship Tribunal's orders made on 13 July 2011 are set aside.

(2) This decision comes in to effect 8 weeks after the date of the decision.

Catchwords:

APPEAL - Jurisdiction of Guardianship Tribunal to review orders appointing a manager of a person's estate - orders purportedly made under a provision that did not support the power - whether an alternative source of power existed - no alternative source of power - decision set aside

Legislation Cited:

Administrative Decisions Tribunal Act 1997
Administrative Decisions Tribunal Rules 1998
Education Act 1972 (SA)
Guardianship Act 1987
NSW Trustee and Guardian Act 2009

Cases Cited:

Australian Education Union v Department of Education and Children's Services (2012) 285 ALR 27; [2012] HCA 3
EB v Guardianship Tribunal [2011] NSWSC 767

Category:

Principal judgment

Parties:

AFM (Appellant)
NSW Trustee and Guardian (First Respondent)
AFO (Second Respondent)
Guardianship Tribunal (Decision maker)

Representation:

Counsel
J Dupree (Appellant)
Russo and Partners (Appellant)
No appearance (First Respondent)
No appearance (Second Respondent)
Crown Solicitor's Office (Solicitor Assisting)
Guardianship Tribunal

File Number(s):

118008

Publication restriction:

S 126 of the Administrative Decisions Tribunal Act 1997 applies

 Decision under appeal 

Citation:

Unreported

Date of Decision:

2011-07-13 00:00:00

File Number(s):

C/39162; 2009/4623

REASONS FOR DECISION

Introduction

1. AFO is a 26-year-old woman with a severe intellectual disability who lives with her father, AFM. Her parents are divorced. On 21 July 2009 the Guardianship Tribunal made a financial management order in relation to AFO and appointed her father, AFM, as the manager of her estate. When reviewing those orders two years later, the Guardianship Tribunal "varied" the order by replacing AFM with the NSW Trustee and Guardian. The following orders, which are the subject of this appeal, were made on 13 July 2011:

(1)   The financial management order made on 21 July 2009 and as confirmed on 19 July 2010 in relation to the estate of [AFO] is varied as follows:

By replacing AFM, who was previously appointed as manager of the estate of [AFO] with the NSW Trustee.

(2)   In all other respects, the financial management order made on 21 July 2009 and as confirmed on 19 July 2010 in relation to (AFO) remains unchanged, except for the requirement to review the order which no longer applies.

1. AFM has appealed to this Tribunal against the Guardianship Tribunal's decision on questions of law: Administrative Decisions Tribunal Act 1997 (ADT Act) s 118B(1)(a). AFM has also sought leave to appeal on other grounds: ADT Act, s 118B(1)(b).

Jurisdiction

1. The Guardianship Tribunal has power to review a financial management order it has previously made pursuant to section 25N of the Guardianship Act 1987. On review, the Guardianship Tribunal must vary, revoke or confirm the order: Guardianship Act, s 25P. An appeal may be made to this Tribunal against such a decision: Guardianship Act, s 67A(1)(g). This Tribunal may also hear an appeal against a decision by the Guardianship Tribunal under s 25U to review the appointment of a manager: Guardianship Act, s 67A(1)(h). Such an appeal is also an external appeal.

Parties

1. AFO was unable to participate in the proceedings either before the Guardianship Tribunal or this Tribunal. The appellant, AFM, attended in person and was represented by counsel. His former wife was not a party to the review of the financial management order before the Guardianship Tribunal and therefore is not a party to the appeal.

1. The Tribunal appointed the Crown Solicitor to assist the Appeal Panel: ADT Act, s 67(2C) and Administrative Decisions Tribunal Rules 1998, r 41A(2).

1. The Guardianship Tribunal is entitled to be a party to the proceedings: ADT Act, s 67(2B). Ms Sprouster, appearing for the Guardianship Tribunal, indicated that it wished to continue to have an active role in the appeal in order to provide comments on its practices and procedures. The respondent to the appeal, the NSW Trustee and Guardian, did not wish to present a case or make submissions.

Guardianship Tribunal's power to review the appointment of the manager

Introduction

1. After the hearing had concluded we asked the parties to provide further written submissions on the issue of whether the Guardianship Tribunal had exceeded its jurisdiction in relation to the orders it made on 13 July 2011. In particular, we invited submissions on whether the Guardianship Tribunal had power to review the appointment of AFM as the financial manager.

Background

1. The Guardianship Tribunal first made a financial management order in relation to AFO on 21 July 2009. The Guardianship Tribunal appointed her father, AFM, to be the financial manager. The orders were expressed in the following terms:

(1) The estate of [AFO] be subject to management under the provisions of the NSW Trustee and Guardian Act 2009; and

(2)   the manager of [AFO's] estate be [AFM] (address deleted), subject to such conditions, including the giving of security, as the NSW Trustee considers appropriate.

The Tribunal further orders that this order be reviewed within 2 years.

1. We will refer to Order 1 as the financial management order and to order 2 as the appointment order. Those orders were made under s 25E and s 25M of the Guardianship Act respectively. Part 3A of the Guardianship Act distinguishes between a financial management order made under s 25E (ordering that the estate of the person be subject to management under the NSW Trustee and Guardian Act 2009) and an appointment order made under s 25M appointing a suitable person as manager of the estate, or committing the management of that estate to the NSW Trustee. As Hallen AsJ pointed out in EB v Guardianship Tribunal [2011] NSWSC 767 at [143]:

It can be seen that the structure of the Act requires taking two distinct steps in relation to financial management - the first, pursuant to s 25E of the Act, the Tribunal may order that the estate of a person be subject to management under the Act (the making of a financial management order), and, if that order is made, then, pursuant to s 25M(1), the second step is the appointment of a suitable person, or the NSW Trustee, to manage the estate.

1. The processes for reviewing a financial management order and an appointment order are also distinct. A review of a financial management order is conducted under Division 2 of Part 3A, while a review of the appointment of a manager is conducted under Division 3.

1. As part of its decision on 21 July 2009, the Guardianship Tribunal also ordered that ". . . this order be reviewed within 2 years." We will refer to this order as the "review order." The review order is expressed as applying to "this order". As two orders were made, it is unclear on the face of the orders whether the review order was intended to apply to the financial management order, the appointment order, or both.

Issues

1. The issues that arise in relation to the Guardianship Tribunal's jurisdiction to review the appointment order are:

(3)   What power does the Guardianship Tribunal have to review an appointment order?

(4)   Was the Guardianship Tribunal exercising that power (or was that power available as a source of power to be exercised) at the time it made the review order or at any other relevant time?

Reasoning

1. The Guardianship Tribunal has power to order that a financial management order be reviewed within a specified time: s25N. The requirement for review may be included as part of the financial management order or be made in a subsequent order:

(1) The Tribunal may order that a financial management order be reviewed within a specified time.

(2) The requirement for a review may be contained in the financial management order or in a subsequent order.

(3) The Tribunal must begin any required review within the time specified in the relevant order.

(4) The Tribunal:

(a) may, at any time on its own motion, and

(b) must, on an application under section 25R for revocation or variation of the order,

review a financial management order.

(5) If a financial management order would cease to have effect before the completion of such a review, the order is taken to be extended until the completion of the review.

(6) Before carrying out the review, the Tribunal must cause a notice specifying the date on which, and the time and place at which, the Tribunal will carry out the review to be served on each party to the proceedings. The review is taken to have commenced on the issue of such a notice.

(7) A failure to serve notice in accordance with this section does not vitiate the decision of the Tribunal on the review.

1. The Guardianship Tribunal's power to review an appointment order is contained in s 25S which provides that:

(1) The Tribunal:

(a) may, on its own motion, and

(b) must, at the request of:

(i) the NSW Trustee, or

(ii) any other person who, in the opinion of the Tribunal, has a genuine concern for the welfare of the protected person,

review its appointment of the manager of the protected person's estate.

(2) Subsection (1) applies even if the person appointed as manager is the NSW Trustee.

(3) Before carrying out the review, the Tribunal must cause a notice specifying the date on which, and the time and place at which, the Tribunal will carry out the review to be served on each party to the proceedings. The review is taken to have commenced on the issue of such a notice.

(4) A failure to serve notice in accordance with this section does not vitiate the decision of the Tribunal on the review.

1. Unlike s 25N, there is no equivalent provision in s 25S enabling an appointment order made pursuant to s 25M to be reviewed within a specified time. Nor is there any equivalent provision in s 25S for a review order to be confirmed in the appointment order itself, or any subsequent order. Neither the NSW Trustee, pursuant to s 25S(1)(b)(ii), nor another person with standing (pursuant to s 25S(1)(b)(ii)), requested a review of the appointment order, nor did the Guardianship Tribunal express the review order as having been made on its own motion.

1. We are satisfied that when making the review order on 21 July 2009 the Guardianship Tribunal assumed that it had power to review the appointment order as part of a review of the financial management order. That conclusion is supported by the way in which the Guardianship Tribunal expressed the review order and the way it characterised that order and subsequent orders. For example, when the Guardianship Tribunal reviewed the order on 13 July 2011 it expressed its order to replace AFM with the NSW Trustee as a variation of the financial management order rather than as a revocation of the appointment order under s 25P.

1. The power to vary a financial management order on review is contained in s 25P:

25P Action on review

(1) On reviewing a financial management order under section 25N, the Tribunal must vary, revoke or confirm the order.

(2) The Tribunal may revoke a financial management order only if:

(a) the Tribunal is satisfied that the protected person is capable of managing his or her affairs, or

(b) the Tribunal considers that it is in the best interests of the protected person that the order be revoked (even though the Tribunal is not satisfied that the protected person is capable of managing his or her affairs).

1. A financial management order and an appointment order are separate orders and review of those orders is initiated by separate processes. The power to vary a financial management order does not include a power to review an appointment order and confirm or revoke the appointment. The Guardianship Tribunal has power to vary a financial management order by, for example, including or excluding part of the estate from the order: s 25E. It does not have power to vary a financial management order by replacing one manager with another.

1. The action the Guardianship Tribunal took following the review was to vary the financial management order as permitted by s 25P(1). The Tribunal purported to vary the order by revoking the appointment of AFM as manager of the estate and committing the management of the estate to the NSW Trustee. It is apparent from the way in which the order was expressed that the Guardianship Tribunal mistakenly considered that the review of the financial management order included a power to vary the appointment order.

1. We accept the submission from the Crown Solicitor's Office that this conclusion does not necessarily mean that the Guardianship Tribunal's decision to revoke AFM's appointment was invalid. As long as a valid source of power existed at the time, it does not matter if the decision maker identified the wrong source of power. In Australian Education Union v Department of Education and Children's Services (2012) 285 ALR 27; [2012] HCA 3 the High Court held, at 37 [34] that:

A mistake by an administrative decision-maker as to the source of his or her power to make a decision does not necessarily invalidate the decision if it is able to be supported by another source of power. Whether it can be supported by the other source of power will depend upon whether that power is subject to requirements which the decision-maker has failed to meet because of his or her belief as to the source of the power or for some other reason. As Heydon J said in Eastman v DPP (ACT):

If the maker of an administrative decision purports to act under one head of power which does not exist, but there is another head of power available and all conditions antecedent to its valid exercise have been satisfied, the decision is valid despite purported reliance on the unavailable head of power. (footnote omitted)

1. Although the Guardianship Tribunal is making judicial or quasi-judicial, rather than administrative, decisions the same principle applies. As long as all conditions antecedent to the valid exercise of the power have been satisfied, and an alternative source of power exists, the decision will be valid.

1. The Guardianship Tribunal did not have an application from the NSW Trustee or a person with standing for a review of the appointment order on 21 July 2009, or at any other relevant time. If it had power to order a review of the appointment order the only possible source of that power was to initiate an own motion review under s 25S(1)(a).

1. The phrase "on its own motion" or variations of that phrase, have been interpreted by the Court of Appeal in other statutory contexts:

The phrase "of his (or its) own motion" has long been known to the law. It means that the body or person who is empowered to do something in this way acts without a formal application to or before it or him that the act be done. Varley v Attorney General in and for the State of New South Wales (1987) 8 NSWLR 30 per Hope JA, Samuels JA agreeing at 46.

1. The Crown Solicitor's Office submitted that it may be assumed that the power of the Guardianship Tribunal to review the appointment of a manager on its own motion would not support the order it made on 21 July 2009 that such a review hearing be held within two years. We agree with that proposition. While there is an express provision that the requirement for a review of a financial management order may be contained in the financial management order itself (s 25N(2)), there is no such provision in relation to an appointment order.

1. If the source of the Guardianship Tribunal's power to review the appointment order is the "own motion" power, the review is taken to have commenced when the Notice of Hearing is issued and must be carried out during the period leading up to the hearing and at the hearing itself: s 25S(3). It is not consistent with an own motion power that the occasion for its exercise be postponed for a specified period. If there is a need for an appointment order to be reviewed, that need must exist at the time the own motion power is exercised.

1. The Guardianship Tribunal did not exercise its own motion power at any later date, for example, when the Notice of Hearing was issued or at the hearing itself.

1. A Notice of Hearing was sent to the parties on 23 June 2011. That Notice identified the matters to be considered at the hearing as "Review of Reviewable Financial Management Order". The following text was included in the Notice of Hearing:

The Guardianship Tribunal can make orders for a person who has an incapacity to make his or her own lifestyle and/or financial decisions. At the end of this hearing the Tribunal may make a legal order concerning [AFO].

1. The Notice of Hearing does not contain notice that a review of the decision to appoint AFM as the manager of his daughter's estate was to be carried out on 13 July 2011. That fact, by itself, does not vitiate the decision, but it satisfies us that the Guardianship Tribunal was not exercising its own motion power at that time. Similarly, despite a submission to the contrary by the Crown Solicitor's Office, we do not accept that the Guardianship Tribunal's was exercising, or purporting to exercise, its motion power at the 13 July 2011 hearing.

1. The legal framework in this case is not comparable to that in Australian Education Union v Department of Education and Children's Services (2012) 285 ALR 27; [2012] HCA 3. In that case the High Court concluded that despite the fact that the Minister wrongly relied on s 9(4) of the Education Act 1972 (SA) to appoint temporary contract teachers, the fact that an alternative provision, s 15, provided a valid source of power to appoint those teachers meant that the appointments were valid. The alternative source of power in s 15 provided that:

Subject to this Act, the Minister may appoint such teachers to be officers of the teaching service as he thinks fit.

An officer may be so appointed on a permanent or temporary basis.

...

1. As a valid source of power to appoint temporary contract teachers existed in s 15, and there was nothing the Minister needed to do in order to rely on that power, the appointments were valid.

1. The situation in these proceedings is different. The Guardianship Tribunal remained under a misapprehension from the date it made the review order until the date of the hearing on 13 July 2011 that a review of the appointment order could be carried out as part of a review of the financial management order. It assumed that the source of power to do so was s 25N. The only alternative source of power which could have made the decision valid, was the own motion power. However, unlike s 15 of the Education Act 1972 (SA), that power needed to be exercised in order for it to be relied on. It is not a source of power that existed as a matter of fact. It could not be triggered until the Tribunal communicated to the relevant parties that it was exercising its own motion power. At that point, the review would be taken to have commenced: s 25S(3).

1. When the Guardianship Tribunal purported to make a review order in relation to the appointment decision on 21 July 2009, it had no power to do so. It did not exercise its own motion power at that time, or at any time after that date. It follows that the Guardianship Tribunal's order made on 13 July 2011 revoking the appointment of AFM was made without power and should be set aside. The effect of this decision is that the decision of 21 July 2009, which is not the subject of this appeal, stands. We note that, given our conclusion, it is our view that the review order made on 21 July 2009 can only relate to the financial management order and not to the appointment order. This conclusion makes it unnecessary to consider any of the grounds of appeal raised by AFM.

1. A decision of the Appeal Panel in relation to an external appeal takes effect on the date on which it is given or such later date as may be specified in the decision: ADT Act, s 118C(3). It is not practicable, nor in AFO's best interests, for the earlier orders of the Guardianship Tribunal to take effect immediately. The NSW Trustee has been managing AFO's estate since July 2011. The Guardianship Tribunal may decide to exercise its own motion power to review the appointment order it made on 21 July 2009. Alternatively, another person with standing may wish to make an application for such a review. If neither of those events occurs, some time will nevertheless be needed for the NSW Trustee to hand over the management of AFO's estate to AFM. In all the circumstances, we consider that this decision should not take effect until 8 weeks from the date of this decision.

Order

(1)   The Guardianship Tribunal's orders made on 13 July 2011 are set aside.

(2)   This decision comes in to effect 8 weeks after the date of the decision.

**********

Amendments

05 June 2012 - typographical error in hearing date

Amended paragraphs: Coversheet

Decision last updated: 05 June 2012