CU v Protective Commissioner (No. 2) (GD)

[2009] NSWADTAP 26

Appeal Panel - Internal

CITATION:	CU v Protective Commissioner (No. 2) (GD) [2009] NSWADTAP 26
PARTIES:	APPELLANT CU RESPONDENT Protective Commissioner
FILE NUMBER:	089006
HEARING DATES:	24 February 2009
SUBMISSIONS CLOSED:	24 February 2009
DATE OF DECISION:	28 April 2009
BEFORE:	O'Connor K - DCJ (President); Millar J - Judicial Member; Bolt M - Non-Judicial Member
CATCHWORDS:	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:	Protected Estates Act 1983
CASES CITED:	CU v Protective Commissioner (GD) [2008] NSWADTAP 38 Davies v Protective Commissioner (GD) [2008] NSWADTAP 59
REPRESENTATION:	APPELLANT In person RESPONDENT T Tunbridge, solicitor
ORDERS:	Appeal dismissed

1 A, the mother of the appellant, CU, is a protected person. The mother’s financial affairs have been managed by the Protective Commissioner since October 2004 pursuant to a financial management order made under the Protected Estates Act 1983 (the PE Act) by the Guardianship Tribunal.

2 In October 2007, CU applied to the Tribunal for review of four decisions by the Protective Commissioner which were not in accordance with his requests to the Commissioner. The Tribunal affirmed each of the decisions. CU appealed.

3 The Appeal Panel has already dealt with CU’s appeal as it relates to the decisions involving the Burial Site Issue and the Possessions and Documents Issue. The Appeal Panel extended the appeal to the merits, reconsidered the Tribunal’s decisions, and agreed with the Protective Commissioner’s decisions. See CU v Protective Commissioner (GD) [2008] NSWADTAP 38 (30 June 2008).

4 The Appeal Panel deferred dealing with the other two decisions on the last occasion, as there was a doubt as to whether the Tribunal had jurisdiction to entertain an application for review of those decisions. In both instances the Protective Commissioner had refused applications by CU that he be paid ex gratia compensation by the Office (OPC) for its alleged failures in the management of his mother’s estate which had resulted in him suffering financial harm.

5 Section 28A of the PE Act provides relevantly that an application for review of a decision of the Protective Commissioner may be made if the decision ‘is made in connection with the exercise of the Protective Commissioner’s functions under this Division’, i.e. Division 3 of Part 3. As at the time of the previous hearing (20 June 2008), another Appeal Panel had reserved its decision in relation to the question of whether decisions refusing claims for ex gratia compensation arising from faults said to have been made by the OPC in the performance of its functions could be reviewed by the Tribunal exercising its s 28A jurisdiction.

6 The decision was delivered on 5 September 2008: Davies v Protective Commissioner (GD) [2008] NSWADTAP 59. In that case, the executor of the will of a deceased protected person claimed that the estate ought to be compensated because it had been depleted by an error…