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 made by the OPC in relation to payment of land tax. The Commissioner acknowledged an error, and offered to pay an amount in compensation on an ex gratia basis. The executor sought review by the Tribunal of the amount offered. (We should note that in this case, in contrast to Davies, the Protective Commissioner does not concede any mistake or error in the way her Office has managed A’s estate.)

7 While the Appeal Panel’s reasons for decision canvassed in some detail the possible statutory constructions that s 28A, and the companion provisions ss 24-28, might bear in relation to this issue, it did not reach a final view. Instead it decided the case on the alternative basis that if it is the case that the Tribunal has jurisdiction the appeal must fail. The Appeal Panel considered that no errors of law had been identified by the grounds of appeal, and on that ground and others declined to exercise the discretion to grant leave to extend to the merits.

8 In Davies, the Protective Commissioner did not oppose a construction of the provisions which might lead to the conclusion that decisions refusing ex gratia compensation responding to a claim of estate management error might be reviewable by the Tribunal. However, on this occasion, the Protective Commissioner expressed a more negative view. She submitted that the key term in s 28A, ‘in connection with’, while one of wide meaning, ought not be interpreted so as to catch the making of ex gratia payments for error in administration. The power to make ex gratia payments, it was submitted, did not derive from the powers given to the Commissioner by financial management or guardianship orders. The power derived, instead, from the prerogative power of the Crown.

9 The appellant, who represented himself, made no submissions in reply, noted that the issue was a legal one, and he was not a lawyer.

10 We are inclined to agree with the Commissioner’s line of argument. However, in our view, it would be preferable to have the issue authoritatively determined in a case where there was an active contradictor on the point with legal representation.

11 As occurred in Davies, we do not see it as necessary to the disposal of this matter to give a final ruling on this question. In our view, the appeal must fail.

12 In our previous decision, we explained why (because of procedural fairness concerns relating to the absence of a Croatian interpreter when the matter was before the Tribunal) the convenient course was simply to extend the appeal to the merits. We will adopt the same approach in dealing with the two issues now under notice. CU has had the assistance of an interpreter before the Appeal Panel.

Repayment of the 1981 Loan (Decision No 1)

13 On 26 October 2004 the Protective Commissioner was appointed financial manager to CU’s mother, A. Her estate is a small one, with assets, as at 2008, of approximately $23,000.

14 In his notice of appeal, CU repeated in detail the case that had been made to the Tribunal in relation to a loan by him to his mother. CU’s complaint is that the OPC failed to take action when it had the opportunity to do so to secure repayment of this loan.

15 The debt was said to arise in this way. In 1981, CU lent A $15,000 which she in turn gave to another son, B, to enable him to meet legal expenses connected with his defence of charges relating to the death of his wife. B was subsequently convicted and imprisoned for approximately three years.

16 On 7 November 2004, twelve days after the Protective Commissioner’s appointment, B’s house sold at auction. Settlement was due to take place approximately six weeks later. CU states that he raised with the OPC the desirability of lodging a caveat by a letter sent on 21 November 2004. CU’s contention was that the Protective Commissioner should have moved immediately to place a caveat on the title so as to recover the debt owed by B to his mother, to enable him to recover his mother’s debt to him.

17 Before the Tribunal and in his submissions to the Appeal Panel, CU referred to a copy of a document said by him to have been executed by his mother in 1997 acknowledging the transactions. If it was authentic, the Tribunal expressed doubt based on its text as to the legal nature of the transactions it was said to evidence. For that and various other reasons given at paras [6] to [8] of its reasons, the Tribunal rejected the submission that there was any reasonable basis for a misconduct case against the OPC sufficient to justify an ex gratia payment. In our view, the Tribunal’s reasons deal adequately with the question, and we have nothing to add to them.

Recovery Action against Brother’s Estate (Decision No 2)

18 In his notice of appeal, CU repeated the case that had been made to the Tribunal in relation to the taking of recovery action against his brother’s estate.

19 CU’s asserts that B misappropriated funds from his mother over many years. He contends that the Protective Commissioner should take action in protection of his mother’s best interests to recover those funds from B’s estate. (B is now deceased.) He says that amount is $150,000.

20 He says that the brother misused his access to his mother’s bank account, and withdrew money from her account for his own purposes not to assist his mother. He said that all his mother’s monetary payment obligations in the period she was in the nursing home, and before the Protective Commissioner took over management of her estate, were dealt with by direct transfers in (for example, Centrelink payments) and out (nursing home fees), and there should have been no need for his brother to draw on the mother’s account.

21 The Commissioner referred to the material filed 31 October 2007. This material disclosed that the OPC had tried to obtain complete bank records as to transactions engaged in by CU’s brother as holder of an account which he operated in trust for his mother.

22 The Tribunal referred to the paucity of the documentary evidence said to support misappropriation, and the likely futility of any recovery action, in our view again, persuasively at paras [10] and [11] of its reasons. The Tribunal’s reasons deal adequately with the question, and we have nothing to add to them.