CGF v NSW Trustee and Guardian

[2016] NSWCATAD 130

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	CGF v NSW Trustee and Guardian [2016] NSWCATAD 130
Hearing dates:	1 February 2016; 9 February 2016; 11 April 2016
Date of orders:	27 June 2016
Decision date:	27 June 2016
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	J Moir, Senior Member
Decision:	1. The applicant’s application for an extension of time to lodge an application for review is refused. 2. The application for review of the decision by the respondent to sell the applicant’s mother’s house is dismissed.
Catchwords:	ADMINSTRATIVE REVIEW- NSW Trustee and Guardian – decision to sell property – extension of time to request review.
Legislation Cited:	Administrative Decisions Review Act 1997(NSW) Civil and Administrative Tribunal Act 2013 (NSW) NSW Trustee and Guardian Act 2009 (NSW) Social Security Act 1991(Cth) Legal Aid Commission Act 1979 (NSW)
Cases Cited:	Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22. Gallo v Dawson [1990] HCA 30; (1990) 93 ALR; [1990] HCA 30; (1990) 64 ALJR (458).
Category:	Principal judgment
Parties:	CHF (Applicant) NSW Trustee and Guardian (Respondent)
Representation:	Solicitors CHF(Applicant in person) NSW Trustee & Guardian (Respondent in person)
File Number(s):	1510746
Publication restriction:	S64 Civil and Administrative Tribunal Act 2013 – prohibiting the publication of the names of the witnesses, applicants and the person under the management of NSW Trustee and Guardian

REASONS FOR DECISION

Introduction

1. CHF has asked this Tribunal to review the decision made by the NSW Trustee and Guardian on 14 May 2015 on internal review, to affirm the decision to sell CHF’s mother’s (the mother) house in a suburb of Sydney. CHF was notified of this decision by letter from Trustee and Guardian dated 18 May 2015.

2. On 27 November 2015 Legal Aid NSW lodged an application for review of this decision on CHF's behalf. The grounds for review were expressed as follows:

“The decision was not correct or preferable as it fails to observe the principles in section 39 of the NSW Trustee and Guardian Act 2009. The original decision contains an error of fact as [the mother]’s income will not be reduced unless the property is sold as it is regarded as an exempt asset. And the internal review decision fails to take into account the detrimental impact that the sale of the property will have on [the mother]’s rate of age pension, because the proceeds will be regarded as a financial asset which will reduce her rate of pension.”

Background to the decision under review

3. The mother is an 81 year old woman who is a permanent resident of an aged care facility in Sydney (the facility). She has three children, a son (CHF), and two daughters. Prior to her admission to hospital and then her move to the facility, the mother was living in her own home in Sydney with CHF, who was her carer.

4. On 30 September 2013 the (then) Guardianship Tribunal ordered that management of the mother’s estate was committed to the NSW Trustee and Guardian. On the same date the Tribunal also made a guardianship order for the mother appointing the Public Guardian. The Public Guardian decided that the mother should be placed as a permanent resident at the facility.

5. CHF remains living in his mother's house. There is no dispute that he pays no rent, nor does he contribute to the outgoings on the property.

6. The mother receives the age pension, and owns the house outright. At the time of the order, she also owned a motor vehicle which has since been purchased by CHF, and had around $4,000 in the bank. Beyond this she has no income or assets other than household and personal items. She has been assessed to have a current life expectancy of seven years.

7. The NSW Trustee and Guardian conducted a review of the mother's overall financial situation and noted that once she has been absent for her house for two years (February 2016), her house would no longer be regarded as an exempt asset for the purposes of calculating her rate of age pension.

8. NSW Trustee and Guardian calculated that weekly rental of $608 for the mother’s house would be necessary to meet her expenses of around $36,000 per annum, and allow for some savings to cover unforseen costs. This is well above market rent for the property which was assessed at around $430 per week. NSW Trustee and Guardian sought the views of the children. CHF did not respond to a number of requests for contact. He is also reported to have refused access to the property for the purposes of inspection and valuation.

9. On 13 March 2015 NSW Trustee and Guardian wrote to CHF and advised that a decision had been made to sell the mother’s house as "the property is not income producing and is incurring ongoing expenses in the form of rates and insurances to retain the property; and that the mother's income reduction in 2016 will severely impact on her quality of life. Sale of the property will provide a cash fund and flexibility to provide for the mother's current, future and unexpected needs."

10. On 9 April 2015 CHF requested an internal review of that decision. NSW Trustee and Guardian wrote to CHF on 24 April 2015 and advised that he had until 8 May 2015 to submit any information he wished to have considered as part of the internal review. CHF did not provide a response or any further evidence.

11. The NSW Trustee and Guardian internal reviewer affirmed the original decision on 14 May 2015, and on 18 May 2015, wrote to CHF and advised him of this decision. This letter advised him of his appeal rights to this Tribunal, and noted that applications for review must generally be made within 28 days of the date of the letter.

12. On 17 September 2015 the NSW Trustee and Guardian wrote to CHF and informed him that he had 30 days from the date of that letter to quit the property, or he would be physically evicted by the Sheriff. He made no response. NSW Trustee and Guardian sent a Notice to Vacate to CHF on 21 September 2015, advising him to vacate the premises by 21 October 2015.

13. Legal Aid wrote to NSW Trustee and Guardian on CHF's behalf in a letter dated 30 October 2015, stating that CHF was 49 years old, had lived at property for 20 years, and that he was his mother's carer for over 10 of those years. The letter challenges NSW Trustee and Guardian’s authority to make CHF vacate the premises, and assert that CHF has a valid claim to reside in and/or to possession of the premises. The letter asks that no action is taken without at least 14 days notice in writing to the Legal Aid office.

14. NSW Trustee and Guardian sent a further notice to vacate to CHF by express post on 10 November 2015 requiring CHF to vacate within 14 days, that is 29 November 2015.

15. On 27 November 2015 Legal Aid made application on CHF's behalf to this Tribunal for a review of the NSW Trustee and Guardian’s decision to sell the mother’s house in the terms referred to above.

16. On the same day Legal Aid made an application for a stay of the NSW Trustee and Guardian decision to sell the property. On 8 December 2015 this Tribunal granted a stay and set an expedited hearing date for 1 February 2016.

Conduct of these proceedinds

17. On 29 January 2016 (the Friday prior to the hearing) CHF contacted the Tribunal to request an adjournment on the basis that Legal Aid had withdrawn assistance and he intended to appeal that decision.

18. Given the late application, the hearing proceeded on1 February 2016. CHF was self represented and the NSW Trustee and Guardian was represented by Ms J Brouwer, solicitor. Possibilities for resolution were explore and with the agreement of the parties, the matter was adjourned for one week during which CHF undertook to contact the representative of the NSW Trustee and Guardian with a proposal for the amount of rent he would agree to pay and if agreed, make arrangements to enter into a lease for the mother’s house.

19. The hearing was resumed on 9 February 2016. CHF had not made any contact with the NSW Trustee and Guardian representative during the adjournment, despite the agreement he had made at the previous hearing.

20. CHF pressed at the hearing for a further adjournment until his appeal against the withdrawal of Legal Aid had been determined. I considered section 57 of the Legal Aid Commission Act 1979 which presumes an adjournment in proceedings will be granted when a bona fide appeal has been made regarding withdrawal of aid, unless there are special circumstances which prevent the granting of an adjournment. I adjourned the hearing until 11 April 2016, which allowed a period of 3 months since CHF had lodged his appeal against Legal Aid’s decision. At the conclusion of that hearing I emphasised to CHF that I had not yet made a decision about whether to allow an extension of time for his application, and that this would be the first matter to be addressed when the hearing resumed in April 2016.

21. The Tribunal was subsequently advised that CHF’s appeal against Legal Aid’s decision to cancel his grant of aid had not been successful. The hearing was resumed on Monday 11 April 2016. At the commencement of the hearing Ms Brouwer handed up a letter that that she had received from CHF by facsimile on Friday 8 April 2016, in which he advised that he would not be attending the hearing on 11 April 2016. In summary he stated that this was because he had no legal representation and that he was disadvantaged by the process. He asked that all future contact be in writing. Although CHF did not send this to the Tribunal directly, it was marked to the attention of Ms Brouwer as well as me. I understood his request that all future contact be in writing indicated that he did not wish to speak with the Tribunal and so I decided not to call him during the hearing. The application therefore proceeded in his absence.

Delay in lodgement of application for review

Legal Principles

22. Section 55 of the Administrative Decisions Review Act, 1997 (NSW) states that an application for review of a decision must be made by an interested person in the manner and timeframe prescribed by the rules. Section 24 of the Civil and Administrative Rules 2014 relevantly provides that applications for review of decisions made under the Administrative Decisions Review Act must be made within 28 days of the finalisation of the decision under review, unless an extension of time is allowed under section 4 of the Civil and Administrative Tribunal Act, 2014 (NSW).

23. Section 41 of the Civil and Administrative Tribunal Act provides that an extension of time can be given in circumstances where this would be consistent with the guiding principles contained in section 36 of that Act. These principles require the Tribunal to “facilitate the just, quick and cheap resolution of the real issues in the proceedings”.

24. The relevant principles to be applied in the exercise of the discretion to extend time were considered by the Appeal Panel in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22. The matters to be considered include the length of any delay, the reasons for the delay, whether the appellant has a fairly arguable case, and the extent of any prejudice suffered by the respondent. It is for the applicant of the extension of time to establish that strict compliance with the rules would constitute an injustice (Gallo v Dawson [1990] HCA 30; (1990) 93 ALR; [1990] HCA 30; (1990) 64 ALJR 458). It may be necessary to go further into the merits of an appeal if the explanation for the delay is less than satisfactory or if the opponent has a substantial case of prejudice, namely, it may be relevant whether the appellant has a case that has more substantial merit than being fairly arguable: see Jackson at [22](4).

Should CHF be given an extension of time to lodge his review application?

25. Legal Aid made two written submissions on CHF’s behalf during these proceedings, but neither addressed the question of whether to grant an extension of time for lodgement of the application to the Tribunal.

26. CHF provided very little information about his reasons for the delay in lodging his application. At the initial hearing he stated that he had been trying to find a lawyer who could help him, but he provided no evidence of this. The letter of 18 May 2015 from NSW Trustee and Guardian clearly advised him of the opportunity to request a review of the decision by this Tribunal and advised him of the usual 28 day time frame for this. There is no requirement that an application for review be made by a lawyer. CHF made no claim, nor did he provide any evidence which would indicate that he was in any way incapacitated or otherwise unable to make an application on his own behalf.

27. CHF provided no other explanation for his delay. It seems from the information from the NSW Trustee and Guardian file that prior to the finalisation of the internal review, CHF was contemplating requesting a review of the financial management order by the Guardianship Division of this Tribunal, so that he could replace the NSW Trustee and Guardian as his mother’s financial manager. However there is no evidence that he took this course of action either so this cannot provide an explanation for his delay.

28. The NSW Trustee and Guardian is the respondent in this case, but its obligation is to act in the best interests of the mother. Ms Brouwer submitted that the mother would be disadvantaged by allowing an extension of time for lodgement in this matter. The mother has no money in reserve and her age pension has been reduced to $15,000 a year because of the value of her house. Her pension no longer covers her accommodation fees at the facility which are $17,000 a year. In addition to this she has outgoings on the house of around $7,000 a year. Despite ample opportunity CHF has made no approach to the NSW Trustee and Guardian to make arrangements to contribute towards the outgoings on the house or make any payments of rent. Since the last hearing the mother has had a third stroke and now requires some aids which she cannot afford to buy as she has no money left.

29. Ms Brouwer noted that CHF has consistently failed to engage with the NSW Trustee and Guardian, unnecessarily delaying the process. She noted that he has continued to delay the process in his dealings with this review.

Consideration

30. There was a delay of about six months between the finalisation of the decision and CHF’s application for review by this Tribunal. Given the usual 28 day timeframe, this is a very significant delay, which mitigates against allowing an extension of time without very good reason. The evidence indicates that CHF’s conduct throughout has been indicative of his desire to extend the process as much as possible. Given his interests in remaining in his mother’s property for as long as possible, this is understandable, however it is not consistent with the guiding principles of the Civil and Administrative Tribunal Act, which CHF is bound to follow, nor is it consistent with his mother’s best interests, because of the financial disadvantage she is now incurring.

31. The evidence showed that CHF only took action to address his situation once NSW Trustee and Guardian had commenced action to evict him, some five months after he had been notified that the decision to sell the property was confirmed on internal review.

32. The NSW Trustee and Guardian’s submissions about prejudice to the mother were persuasive. The mother is now significantly financially disadvantaged as her pension does not cover her accommodation fees, and she continues to pay considerable outgoings on the property in which her son resides, rent free. CHF has made no effort to make arrangements to cover these costs or contribute rent despite his assertions that he was willing and able to do so.

33. On balance, I was not satisfied that there was an adequate explanation for the very significant delay in the request for review. I also noted the ongoing disadvantage to the mother which he has done nothing to ameliorate in his conduct sine the NSW Trustee and Guardian decision was made. There is no evidence that strict compliance with the rules for lodgement of applications would lead to a substantial injustice to CHF which would outweigh the injustice to the other affected parties if an extension of time was given.

34. I considered whether CHF has more than a fairly arguable case. As stated earlier, the NSW Trustee and Guardian is bound to make decisions in accordance with the mother’s needs and priorities, and not CHF’s. Legal Aid submitted that the property ought not to be sold because he may have some legal claim to it, but there is no evidence to support this view. Legal Aid also argued that NSW Trustee and Guardian’s decision will disadvantage the mother because of the impact of the proceeds of the sale of the property on her pension. However this argument is misconceived because it failed to recognise that her house was about to lose its status under the Social Security Act 1991 (Cth) as an exempt asset in any event, which would cause an equivalent reduction in her rate of pension. In all the circumstances, I was not satisfied that CHF has even a fairly arguable case. The merits of the case therefore provide no additional support for the request for an extension of time for the application to be made.

35. I therefore determined not to grant CHF an extension of time to lodge his application for review of the decision of the NSW Trustee and Guardian to sell the mother’s house. His application for review is therefore dismissed.

ORDERS

1. The applicant’s application for an extension of time to lodge an application for review is refused.

2. The application for review of the decision by the respondent to sell the applicant’s mother’s house is 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: 27 June 2016