CU v Protective Commissioner (GD)

[2008] NSWADTAP 38

Appeal Panel - Internal

CITATION:	CU v Protective Commissioner (GD) [2008] NSWADTAP 38
PARTIES:	APPELLANT CU RESPONDENT Protective Commissioner
FILE NUMBER:	089006
HEARING DATES:	20 June 2008
SUBMISSIONS CLOSED:	20 June 2008
DATE OF DECISION:	30 June 2008
BEFORE:	O'Connor K - DCJ (President); Millar J - Judicial Member; Whaite A -Non-Judicial Member
CATCHWORDS:	Appeal - Procedural Fairness of Tribunal Hearing - Interpreters - Extension to Merits - Protected Person - Decisions of Protective Commissioner - Adequacy - Appeal Dismissed
DECISION UNDER APPEAL:	CU v Protective Commissioner [2008] NSWADT 36
FILE NUMBER UNDER APPEAL:	073292
DATE OF DECISION UNDER APPEAL:	01/21/2008
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Protected Estates Act 1989
REPRESENTATION:	APPELLANT In person RESPONDENT T Tunbridge, solicitor

1 The appellant’s mother is a protected person. Her financial affairs have been under the management of the Protective Commissioner, by virtue of an order of the Guardianship Tribunal, since 26 October 2004. The appellant, CU, is critical of the Protective Commissioner’s management of his mother’s estate in four respects. He applied to the Tribunal for review of decisions on these matters made by the Protective Commissioner. The Tribunal heard CU’s case on 8 January 2008, and delivered its decision on 21 January 2008.

2 As to the first three matters, the Tribunal concluded that the Protective Commissioner had made the correct and preferable decision, and affirmed each of the decisions. As to the fourth matter, it varied the Protective Commissioner’s decision as to one of the two aspects under notice. The Tribunal’s decisions were:

1. The decision of the Protective Commissioner to refuse to give CU an ex gratia payment of $15,000.00 plus interest is affirmed.

2. The decision of the Protective Commissioner to refuse to give Mrs A an ex gratia payment of $150,000.00 to compensate her for funds which were allegedly misappropriated by Mr B, is affirmed.

3. The decision of the Protective Commissioner to take no further action in relation to the burial plot in which Mr B is buried is affirmed.

4. The decision of the Protective Commissioner to take no further action in relation to recovering documents and possessions relating to or belonging to Mrs A is set aside. In substitution for that decision a decision is made that the Protective Commissioner take all necessary steps to obtain documents relating to Mrs A to which it is entitled.

3 The appellant has appealed to the Appeal Panel against the Tribunal’s decision under sections 112 and 113 of the Administrative Decisions Tribunal Act 1997 (ADT Act). In addition to challenging the substance of the decisions, he also put in issue the procedural fairness of the Tribunal’s hearing.

4 At the commencement of the appeal hearing, we explained that we did not think it was appropriate to proceed to deal with the Tribunal’s decision in connection with the first two matters.

5 This was because a question had arisen in another Appeal Panel case, heard on 1 May 2008, as to whether the Tribunal was entitled to look at matters of that kind (Davies v Office of Protective Commissioner, Appeal file no. 089014).

6 The Tribunal’s review jurisdiction, as relevant to this case, is conferred by the Protected Estates Act 1983, section 28A read in conjunction with sections 24-28. The first two decisions, it will be seen, involved claims for ex gratia compensation by the Protective Commissioner, i.e. for payment from the ordinary operating fund of the Commissioner, as distinct from payments out of the estate under management. It is arguable that the Tribunal’s jurisdiction does not extend to decisions that go to payments made by the Protective Commissioner from the operating fund. Accordingly, with Cu's agreement, the appeal as it relates to decisions 1 and 2 has been adjourned until after the delivery of the decision in the case mentioned.

7 The Appeal Panel proceeded to hear the appeal as it related to decisions 3 and 4 of the Tribunal.

Procedural Fairness Ground

8 The appeal challenged the procedural fairness of the Tribunal proceedings. CU claimed that the Tribunal had failed in its duty to provide him with an interpreter and in its duty to provide him with a legal representative.

9 The Tribunal is obliged to accord parties to its proceedings procedural fairness. This is a common law obligation. In addition, the ADT Act has a number of specific provisions relating to the practice and procedure to be adopted by the Tribunal. For example, section 70 provides:

‘The Tribunal must ensure that every party to proceedings before the Tribunal is given a reasonable opportunity:

(a) to present the party’s case (whether at a hearing or otherwise), and

(b) to make submissions in relation to the issues in the proceedings.’

10 Section 73(1) gives a broad power to the Tribunal to determine its own procedures. Section 73 includes the following more specific provisions:

‘(4) The Tribunal is to take such measures as are reasonably practicable:

(a) to ensure that the parties to the proceedings before it understand the nature of the assertions made in the proceedings and the legal implications of those assertions, and

(b) if requested to do so—to explain to the parties any aspect of the procedure of the Tribunal, or any decision or ruling made by the Tribunal, that relates to the proceedings, and

(c) to ensure that the parties have the fullest opportunity practicable to be heard or otherwise have their submissions considered in the proceedings.’

11 Parties have a right to appear without representation or through an agent: see section 71(1).

12 The subject of interpreters is addressed by section 71(6):

‘(6) Any person appearing before the Tribunal may use the services of an interpreter unless the person can understand and speak the English language sufficiently to enable the person to understand, and to make an adequate reply to, questions that may be put to the person.’

13 There is no duty on the Tribunal so specifically cast as to require it to supply a party with a legal representative. The obligation of the Tribunal, see in particular section 73(4), is to conduct itself in such a manner that a party understands the nature of the assertions made in the proceedings and the legal implication of those assertions.

14 We have reviewed the transcript of the hearing before the Tribunal, and, on its face, this obligation was satisfied. The Tribunal had before it the relevant documents of the Protective Commissioner relating to the concerns raised by CU, and it had a large number of documents from CU. CU and the Protective Commissioner had each made written submissions. The Tribunal clearly explained its role and the scope of the day’s hearing. It dealt patiently and in detail with CU’s case. Its decision reflects a clear understanding of the matters of concern to CU. Often in the Tribunal parties appear without legal representation, and often those parties have tried to obtain legal representation via an application for legal aid, and have failed. The Tribunal carries the responsibility for ensuring any deficit that might be seen to result from not having legal representation is met in the way contemplated by section 73(4).

15 As we have said, the transcript ‘on its face’ appears to show no difficulty on CU’s part in understanding or participating in the proceedings.

16 In his appeal submissions, he notes that he is Croatian, and English is a second language. His original application for review to the Tribunal shows that he ticked the box asking the applicant to indicate whether an interpreter was required, and he nominated the language as Croatian. The usual practice of the Tribunal’s Registry in these circumstances is to arrange for an interpreter at the cost of the Tribunal. There is no evidence on the Tribunal file that the Registry took any steps on the request.

17 While the Appeal Panel had before it the transcript of the final hearing, it did not have before it the transcripts of the two directions hearing held to arrange for that hearing. It may be that CU’s need or otherwise for an interpreter was canvassed on that occasion.

18 Mr CU claimed that he did not understand all that was said at the Tribunal hearing especially when legal terms were used. We noted that there was nothing in the transcript of the hearing to suggest that he had had any difficulty. Nor did he raise any objections or concerns with the Tribunal suggesting he had problems in understanding. He said he had not done that because he did not wish to offend the Tribunal.

19 At the appeal hearing he did have present a properly qualified interpreter to assist him. She was sworn in. He normally addressed the Tribunal directly in English, but sometimes listened to what was being said by the Appeal Panel and Mr Tunbridge, representing the Protective Commissioner, through the interpreter and replied through the interpreter.

20 As the opportunity now existed to proceed with the assistance of an interpreter, we felt that better course – rather than becoming diverted by the question of whether or not procedural fairness had been accorded by the Tribunal – was simply to reopen the case as it related to decisions 3 and 4, and let CU say, with the assistance of the interpreter, whatever he wished in relation to the way these issues should have been dealt with. Mr Tunbridge agreed to this approach.

21 Accordingly the Appeal Panel gave leave to extend the appeal to the merits: see ADT Act, section 113(2)(b).

The Burial Site Issue (Decision No 3)

22 The relevant passages in the Tribunal’s reasons are at paras [12]-[14]. Mr CU is aggrieved that his late brother has been buried in the burial site purchased by their mother. For various reasons, he feels that it is not appropriate that his mother when she dies (she is now in her 90s) be buried alongside that son. He believes that his brother’s children and the Cemetery Trust are at fault in allowing his brother’s body to be placed in that site. He is of the view that the Protective Commissioner should on his mother’s behalf take legal action against the brother’s children or the trust, either to have one or other of them pay for a new burial site for the mother or for the exhumation and reinterment elsewhere of the brother’s body. In essence the Tribunal was of the view, like the Protective Commissioner, that pursuing proceedings of this kind was not in his mother’s best interests. One of the reasons given by the Commissioner and the Tribunal concerned the possible financial effect on the mother’s estate. Hers is a small estate (approximate balance, $23,000 as at July 2007). Litigation of the kind proposed by CU may prove quite costly.

23 Further, when his mother dies CU, if he is the executor of her will (as he claims to be), will be in a position to administer the estate in a way which addresses this problem. As to that possibility, CU says that this would mean that the estate would be paying a second time for the burial site purchased by his mother, and that was not fair.

24 We explained at hearing to CU that we were inclined to favour the Commissioner and the Tribunal’s conclusion on this matter. In our view, it is not desirable that the Commissioner become engaged in the making of demands on the brother’s children or the trust. The decision to bury CU’s brother in the burial site (which the trust states is suitable for two bodies, though CU disputes this) was made in March 2004, several months before the Protective Commissioner was given responsibility for the mother’s financial affairs. The Protective Commissioner has consulted CU’s siblings in relation to the issue raised by CU. None of them have concerns over their brother being buried in that site. There is no independent support for CU’s belief that it is culturally inappropriate to have a son and a mother buried in the one site. Were any demands made by the Protective Commissioner to lead to litigation it is obvious that a substantial part, if not all of the estate, could be consumed by the cost.

25 In our view the Tribunal’s decision was correct.

The Possessions and Documents Issues (Decision No 4)

26 The Tribunal’s reasons deal with this matter at paras [15] to [20].

27 The Tribunal did vary the Protective Commissioner’s decision as it related to CU’s request that the Protective Commissioner recover all documents belonging to his mother in the custody of other persons. CU is of the view that there may exist official documents issued in Croatia which establish that his mother has an entitlement to a share in land there. He is also concerned over the possible existence of other documents of importance, such as bank deposit books. In line with the Tribunal’s order, Mr Tunbridge showed the Tribunal an internal memorandum that he had issued to the estate officer asking that steps be taken to recover documents in the possession of family members and others. The memorandum also noted that a cost of up to $11,000 might have to be incurred to have the documents translated from Croatian. Mr CU at the hearing before us questioned the need to incur any cost of that magnitude.

28 The other aspect of Mr CU’s case before the Tribunal was for the Protective Commissioner to take steps to recover his mother’s possessions. His mother was placed in care ahead of the Protective Commissioner being appointed financial manager. Her last place of abode was his brother’s home. That home was sold. His understanding was that his mother’s possessions were distributed within the family, and are now destroyed or unable to be traced. He only nominated one exception, a family photo held by a sister. The Tribunal noted in its decision that his sister was happy for a copy to be given to him.

29 In these circumstances in our view, no action ought be asked of the Protective Commissioner. The Tribunal was correct not to interfere with the Protective Commissioner’s decision to take no further action.

Order

1. Leave granted to extend appeal to merits

2. Appeal dismissed as it relates to Orders 3 and 4 of the Tribunal

3. Appeal adjourned as it relates to Orders 1 and 2 to a date to be fixed.