Bni v NSW Trustee and Guardian

[2015] NSWCATAD 69

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	BNI v NSW Trustee and Guardian [2015] NSWCATAD 69
Hearing dates:	16 December 2014
Decision date:	13 April 2015
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	R Booby, Senior Member
Decision:	The application is dismissed
Catchwords:	Administrative Review – review of decision of NSW Trustee and Guardian. Decision of Supreme Court revoked order under which reviewable decision made
Legislation Cited:	Protected Estates Act 1983 (NSW) Administrative Decisions Review Act 1997(NSW) NSW Trustee and Guardian Act 2009 Civil and Administrative Tribunal Act 2013 (NSW)
Cases Cited:	Re R [2014] NSWSC 1810
Category:	Principal judgment
Parties:	BNI (Applicant) NSW Trustee and Guardian (Respondent)
Representation:	Solicitors: BNI (Applicant’s brother/carer) J Brouwer, NSW Trustee and Guardian (Respondent)
File Number(s):	1410585
Publication restriction:	Pursuant to subs 64(1)(a) of the Civil and Administrative Tribunal Act 2013, the name of the applicant and the name of any other person from which the name of the applicant could be identified is not to be published or broadcast without the leave of the Tribunal.

Judgment

Introduction

1. On 21 May 2006 the Supreme Court declared that BNI was incapable of managing his affairs and ordered that his estate should be subject to management under the Protected Estates Act 1983 and that his estate be committed to the management of the Protective Commissioner.

2. The Protected Estates Act 1983 was repealed by the NSW Trustee and Guardian Act 2009. Schedule 1 of the NSW Trustee and Guardian Act 2009 provides that the NSW Trustee is to exercise the functions and responsibilities of the Protective Commissioner.

3. BNI made an application to the Supreme Court under section 86 of the NSW Trustee and Guardian Act 2009 seeking a revocation of the order made on 21 May 2006 by which his estate was placed under management. That application was heard by White J in the Supreme Court on 10, 11 and 12 June 2014. His Honour reserved his decision.

4. On 15 July 2014 in a telephone call to the NSW Trustee and Guardian on behalf of BNI, the solicitors for BNI sought the provision of funds for him and his brother/carer to visit his terminally ill brother in Croatia. Funds were also sought for living expenses whilst in Croatia and for a possible contribution to funeral expenses.

5. On 7 August 2014 following an internal review, Damon Quinn, Director of Client Services, NSW Trustee and Guardian affirmed the decision of the acting CEO of the NSW Trustee and Guardian to decline a request for $40,000 to $50,000 to cover an emergency visit to the sick brother of BNI and instead, to approve $25,000 spending money as well as airfares of $5319.08 to enable BNI to travel to Croatia to visit his brother.

6. In an email to the NSW Trustee and Guardian dated 26 August 2014 BNI’s then solicitor states that BNI had travelled to Croatia but returned home due to inadequate funds. Further file records note that BNI was seeking the release additional funds for a second trip to Croatia and to allow him to contribute to the care of his ill brother.

7. A file copy of a letter to BNI dated 18 September 2014 from Mr John Neely, Assistant Director Client Services, NSW Trustee and Guardian states that based on receipts provided, there should be funds remaining from the earlier trip to Croatia and advises that under s.59 of the Trustee and Guardian Act the following had been approved:

1. The release of funds directly to the provider to finance return flights for BNI and his brother to travel to Croatia;

2. The release of $10,000 cash to BNI.

3. Contributions to medical expenses and accommodation for BNI’s brother to be capped at $10,000 and only to be paid directly to providers on receipt of supporting documentation.

4. Regular payments to remain in place. These payments were:

• a carers’ allowance of $1600 per fortnight to the brother of BNI and the wife of the brother;

• payment of $400 per week board to the brother of BNI and his wife;

• a personal allowance of $700 per week to BNI.

8. By letter dated 20 September 2014 BNI sought an internal review of the decision of Mr Neely. The review was conducted by Ms Carol Coombes, Assistant Director Client Services, NSW Trustee and Guardian.

9. In a decision dated 10 October 2014 Ms Coombes:

1. Affirmed the decision of Mr Neely to approve release of funds directly to the provider for return flights for BNI and his brother/carer and $10,000 cash.

2. Affirmed the decision that any contribution towards medical expenses and accommodation be capped at $10,000 and can only be paid direct to providers in receipt of supporting documentation.

3. Varied the decision to increase the personal allowance to BNI to $1400 per week.

4. Varied the decision to increase the payment of the carers’ allowance to $2000 per fortnight.

5. Affirmed the decision to continue to pay board of $400 per week to the brother and sister in law of BNI.

10. In a letter dated 10 October 2014 Imelda Dodds, Chief Executive Officer, NSW Trustee and Guardian, informed BNI of the decision of Ms Coombes and of his right to apply for a review of that decision and attached a copy of Ms Coombes’ decision.

11. On 13 October 2014 BNI filed an application seeking that the Tribunal review the decision made by Ms Coombes. In his application he states that his reason for seeking the review was that “the decision is not fair and it is not in my best interest”.

12. Section 62 of the Trustee and Guardian Act 2009 provides that an affected person can seek administrative review by this Tribunal of decisions by the NSW Trustee.

13. The review hearing took place on 16 December 2014. There was no dispute that the Tribunal had jurisdiction to commence the review.

14. At the commencement of the hearing the brother and carer of BNI sought to represent the latter during the hearing. The Tribunal consented to the representation.

15. The Applicant tendered into evidence unopposed:

1. His application for a review of the decision and a copy of the decision of Ms Coombes and the notification of that decision in the letter of Ms Dodds dated 10 October 2014.

2. A large bundle of documents including those related to the making and operation of the management order as well as documents related to the request for funding that resulted in the decision under review as well as transcripts of the Supreme Court hearing on 10,11 and 12 June 2014 in relation to his application seeking the revocation of the financial management order.

16. The Respondent tendered into evidence unopposed a bundle of documents numbered page 1 through to 125.

17. At the commencement of the hearing BNI’s brother/carer advised that BNI’s brother in Croatia had died the night before the hearing. However he said that BNI wished to continue with the application to review the decision of the NSW Trustee and Guardian.

18. Ms Brouwer, for the NSW Trustee and Guardian, advised that despite the death of BNI’s brother, the NSW Trustee and Guardian accepted that BNI might still wish to travel to Croatia, and affirmed that part of the decision relating to a trip to Croatia, whilst that part of the decision regarding payment of medical expenses and accommodation for the late brother of BNI was no longer relevant.

19. At the conclusion of the hearing I reserved my decision.

20. On 19 December 2014, in the matter of Re R [2014] NSWSC 1810, His Honour Justice White gave his decision in respect of the application made by BNI seeking the revocation of the financial management order. That decision was that BNI is capable of managing his affairs and that the financial management order should be revoked.

21. By letter dated 21 January 2015 BNI and the respondent were notified of a Directions Hearing to be held on 9 February 2015 to ascertain how the parties wished to proceed taking into account the decision of the Supreme Court.

22. At the Directions Hearing BNI, through the representation of his brother/carer, indicated that despite the revocation of the financial management order, he did not wish to withdraw his application seeking a review of the decision of the New South Wales Trustee and Guardian. BNI’s brother said words to the effect that he accepted that any decision made by the Tribunal could have no effect, but that “we were damaged” by the decision of the NSW Trustee and Guardian and wanted the Tribunal to reach a decision regarding the application.

23. The solicitor for the respondent noted that any order made by the Tribunal would be without effect.

24. Sub-section 63(1) of the Administrative Decisions Review Act 1997 provides that in determining an application for administrative review, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including

1. any relevant factual material; and

2. any applicable written or unwritten law.

25. In reaching my decision in this matter I have had regard to decision of White J and the effect of orders consequent on that decision, namely that there is now no order in existence directing that BNI’s estate be managed by the NSW Trustee and Guardian.

26. Sub-section 63(3) of the Administrative Decisions Review Act 1997 provides that in determining the application the Tribunal may decide to:

1. affirm the decision;

2. vary the decision;

3. set aside the decision and make a decision in substitution for the decision;

4. set aside the decision and remit the matter for reconsideration by the administrator.

27. It is my view that the decision of the Supreme Court to revoke the financial management order renders the decision of Ms Coombes redundant and consequently any decision that I could make concerning the application to review that decision would be otiose.

28. In any case, it is my view that as the order under which the decision was made has ceased to exist, and as I am required to take into account the current factual situation, the options available under ss63(3) of the Administrative Decisions Review Act 1997 are not applicable. This is because there is now no instrument upon which a decision, whether affirmed, varied or substituted could be based.

29. Section 55 of the Civil and Administrative Tribunal Act 2013 provides that the Tribunal may dismiss proceedings at any stage in the event of a number of circumstances including where the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance.

30. It is my view also that as the management order under which the decision was made no longer exists, the application to review the decision made under that order, whilst appropriately brought, is now without substance.

31. Having decided that I am unable to make any of the orders set out in the Administrative Decisions Review Act 1997 as applicable to determining a review of an administrative decision, and having decided that the application has been rendered without substance by the decision of the Supreme Court, it is my decision that the application ought to be dismissed as being without substance.

32. Accordingly I order that the application made by BNI seeking a review of the decision of the NSW Trustee and Guardian be dismissed.

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

Decision last updated: 13 April 2015