Clark v NSW Trustee and Guardian - [2019] NSWCATAD 73

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Clark v NSW Trustee and Guardian [2019] NSWCATAD 73
Hearing dates: 20 November 2018 and on the papers (Submissions closed 21 January 2019)
Date of orders: 30 April 2019
Decision date: 30 April 2019
Jurisdiction: Administrative and Equal Opportunity Division
Before: J McAteer, Senior Member
Decision:
(1) The decision of the respondent is set aside.
(2) The matter is remitted to the respondent pursuant to s 65 (1) of the Administrative Decisions Review Act 1997 to make a fresh decision. Such decision to be completed by 16 May 2019 and conveyed to the applicant electronically on or before that date.
(3) The matter is listed for further directions before Senior Member McAteer at 9:30am on 21 May 2019 (the applicant may appear by telephone by arrangement with the Registrar if he is overseas at that time).

Catchwords: ADMINISTRATIVE LAW – Government Information (Public Access) Act -– GIPA –- meaning of excluded information – whether nature of information and term ‘related to’ can be ascertained from description of a process – whether determination as to whether to apply for administration constitutes exercising functions as executor, administrator or trustee capacity.
Legislation Cited: Administrative Decisions Review Act 1997
Civil and Administrative Tribunal Act 2013
Government Information (Public Access) Act 2009
NSW Trustee and Guardian Act 2009
Probate and Administration Act 1898
Supreme Court Rules 1970
Uniform Coil Procedure Rules 2005
Cases Cited: McClymont v Department of Family and Community Services [2017] NSWCATAD 202
Shepherd and Department of Housing, Local Government and Planning (1984) QAR 464
Watson v NSW Trustee and Guardian [2015] NSWCATAD 139
Texts Cited: Nil
Category: Principal judgment
Parties: Bradley Roy Clark (Applicant)
NSW Trustee and Guardian (Respondent)
Representation: Solicitors:
B Clark (Self Represented)(Applicant)
Crown Solicitor’s Officer (Respondent)

File Number(s): 2018/00119958
Publication restriction: Nil

REASONS FOR decision

This is an application for administrative review of a decision of the respondent concerning access to government information under the Government Information (Public Access) Act 2009 (the GIPA Act).

Background

These proceedings relate to an application for government information concerning the management of the estate of the late Ms G Reiner. During the last years of her life Ms Reiner was subject to a Financial Management order issued by the former NSW Guardianship Tribunal appointing Mrs Sondra Pieters as financial manager for Ms Reimer. Such an arrangement is referred to as ‘private management’ and is subject to the oversight by the NSW Trustee and Guardian who at that time were called the Public Trustee.
Ms Reimer died on 21 October 2011 intestate (without leaving a will), and as a result of her death the private management order ceased to have effect by operation of s 93 of the NSW Trustee and Guardian Act 2009 (the TAG Act). From the date of Ms Reimer’s death until the Supreme Court made a grant of administration on 10 December 2015, the Estate was deemed to be vested to the NSW Trustee pursuant to s 61 of the

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] NSWCATAD 73
Decision Date: 30 April 2019

CaseChat Overview and Summary

The applicant, Clark, sought access to documents under the Government Information (Public Access) Act 2009 (NSW), specifically relating to the determination of whether to apply for administration over an estate. The respondent, NSW Trustee and Guardian, refused access to these documents on the basis that they were considered "excluded information". Clark challenged this decision, arguing that the documents were not excluded information as per the Act. The dispute was heard in the Administrative Appeals Tribunal (AAT).

The legal issues at the heart of this case revolved around the interpretation of the term "excluded information" within the context of the Government Information (Public Access) Act. Specifically, the court needed to determine whether the nature of the information and the meaning of "related to" could be ascertained from the description of a process outlined in the Act. Another critical issue was whether the determination of whether to apply for administration constituted an exercise of functions in an executor, administrator, or trustee capacity. These interpretations were central to the respondent's decision to classify the documents as excluded information.

In examining the matter, the Tribunal noted that the respondent had not provided adequate reasons for categorising the documents as excluded information. The Tribunal was concerned that the determination to apply for administration could potentially fall outside the scope of functions that would typically be considered executory, administrative, or trustee-like. Consequently, the Tribunal found that the respondent had not sufficiently demonstrated that the documents fell within the category of excluded information. The decision to refuse access to the documents was therefore set aside, and the matter was remitted to the respondent to make a fresh decision, with the new decision to be conveyed to the applicant by a specified date. The matter was subsequently listed for further directions.

Orders

Orders of the court

(1) The decision of the respondent is set aside.

(2) The matter is remitted to the respondent pursuant to s 65 (1) of the Administrative Decisions Review Act 1997 to make a fresh decision. Such decision to be completed by 16 May 2019 and conveyed to the applicant electronically on or before that date.

(3) The matter is listed for further directions before Senior Member McAteer at 9:30am on 21 May 2019 (the applicant may appear by telephone by arrangement with the Registrar if he is overseas at that time).

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Clark v NSW Trustee and Guardian [2019] NSWCATAD 73
Hearing dates:	20 November 2018 and on the papers (Submissions closed 21 January 2019)
Date of orders:	30 April 2019
Decision date:	30 April 2019
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	J McAteer, Senior Member
Decision:	(1) The decision of the respondent is set aside. (2) The matter is remitted to the respondent pursuant to s 65 (1) of the Administrative Decisions Review Act 1997 to make a fresh decision. Such decision to be completed by 16 May 2019 and conveyed to the applicant electronically on or before that date. (3) The matter is listed for further directions before Senior Member McAteer at 9:30am on 21 May 2019 (the applicant may appear by telephone by arrangement with the Registrar if he is overseas at that time).
Catchwords:	ADMINISTRATIVE LAW – Government Information (Public Access) Act -– GIPA –- meaning of excluded information – whether nature of information and term ‘related to’ can be ascertained from description of a process – whether determination as to whether to apply for administration constitutes exercising functions as executor, administrator or trustee capacity.
Legislation Cited:	Administrative Decisions Review Act 1997 Civil and Administrative Tribunal Act 2013 Government Information (Public Access) Act 2009 NSW Trustee and Guardian Act 2009 Probate and Administration Act 1898 Supreme Court Rules 1970 Uniform Coil Procedure Rules 2005
Cases Cited:	McClymont v Department of Family and Community Services [2017] NSWCATAD 202 Shepherd and Department of Housing, Local Government and Planning (1984) QAR 464 Watson v NSW Trustee and Guardian [2015] NSWCATAD 139
Texts Cited:	Nil
Category:	Principal judgment
Parties:	Bradley Roy Clark (Applicant) NSW Trustee and Guardian (Respondent)
Representation:	Solicitors: B Clark (Self Represented)(Applicant) Crown Solicitor’s Officer (Respondent)
File Number(s):	2018/00119958
Publication restriction:	Nil