Davies v Protective Commissioner (GD)

[2008] NSWADTAP 59

Appeal Panel - Internal

CITATION:	Davies v Protective Commissioner (GD) [2008] NSWADTAP 59
PARTIES:	APPELLANT Samuel Davies RESPONDENT Protective Commissioner
FILE NUMBER:	089014
HEARING DATES:	1 May 2008
SUBMISSIONS CLOSED:	26 May 2008
DATE OF DECISION:	5 September 2008
BEFORE:	Britton A - Deputy President; Millar J - Judicial Member; Whaite A - Non-Judicial Member
CATCHWORDS:	Protected Estates - land tax
MATTER FOR DECISION:	Principal matter
DECISION UNDER APPEAL:	Davies v Protective Commissioner [2008] NSWADT 35
FILE NUMBER UNDER APPEAL:	073234
DATE OF DECISION UNDER APPEAL:	01/21/2008
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Protected Estates Act 1983 Protected Estates Regulation 2003 Land Tax Management Act 1956 Taxation Administration Act 1996
CASES CITED:	Collector of Customs v Cliffs Robe Iron Associates (1985) 7 FCR 271 Collector of Customs v Pressure Tankers Pty Ltd and Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 Commissioner for Superannuation v Miller (1985) 8 FCR 153 Fightvision Pty Ltd v Onisforou (1999) 47 NSWLR 473 Lloyd v Veterinary Surgeons Investigating Committee (2005) 64 NSWLR 245 Maxwell v Murphy (1957) 96 CLR 261 Mifsud v Campbell (1991) 21 NSWLR 725 Taciak v Australian Federal Police (1995) 131 ALR 319 Tarjali-Diab v Director-General, Department of Commerce (EOD) [2006] NSWADTAP 41
REPRESENTATION:	APPELLANT In person RESPONDENT T Tunbridge, solicitor
ORDERS:	The appeal is dismissed.

Section 126 of the Administrative Decisions Tribunal Act 1997 applies to this decision.

Section 126 provides

(1A) This section applies only to the following:

(a) proceedings in the Community Services Division of the Tribunal,

(b) appeals to an Appeal Panel from a decision made by the Tribunal in the Community Services Division,

(b1) proceedings in relation to an external appeal made under section 67A of the Guardianship Act 1987 or section 21A of the Protected Estates Act 1983,

(b2) proceedings in relation to a reviewable decision made under the Guardianship Act 1987 or the Protected Estates Act 1983

(c) such other proceedings (or class or classes of proceedings) as may be prescribed by the regulations for the purposes of this section.

(1) A person must not, except with the consent of the Tribunal, publish or broadcast the name of any person:

(a) who appears as a witness before the Tribunal in any proceedings, or

(b) to whom any proceedings before the Tribunal relate, or

(c) who is mentioned or otherwise involved in any proceedings before the Tribunal,

whether before or after the proceedings are disposed of.

Maximum penalty: 10 penalty units or imprisonment for 12 months, or both.

(2) This section does not prohibit the publication or broadcasting of an official report of the proceedings that includes the name of any person the publication or broadcasting of which would otherwise be prohibited by this section.

(3) For the purposes of this section, a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

REASONS FOR DECISION

1 The appellant, Mr Samuel Davies, appeals against the decision of the Administrative Decisions Tribunal to affirm the Protective Commissioner’s decision to pay him ‘an ex gratia amount of $1,686’: Davies v Protective Commissioner [2008] NSWADT 35. He argues that the correct decision would have been for a higher amount to be paid.

2 The appeal concerns the payment of Land Tax throughout the period the estate of Mr Davies’ mother was under the management of the Protective Commissioner. It is common ground that for part of that period, the Protective Commissioner failed to claim an exemption from Land Tax that was available to Mrs Davies and as a consequence, she paid more tax than she was required to at law. The Protective Commissioner agreed to remedy this oversight and paid to Mr Davies, in his role as executor of his mother’s estate, an amount of $1,686 expressed to be by way of an ‘ex gratia payment’. Mr Davies disputed the basis of the calculation and contended that the correct figure was about $16,000.

3 A preliminary issue arises for determination in this Appeal namely whether the Tribunal had power to determine Mr Davies’ initiating application to review the decision made by the Protective Commissioner to make the ex gratia payment.

4 To properly consider this issue it is first necessary to outline the background to the subject decision.

Background to decision made by Protective Commissioner

5 The following background facts are largely drawn from the decision under appeal and are not in issue.

6 In July 1996, by order of the Guardianship Tribunal, Mrs Davies’ estate was committed to the management of the Protective Commissioner. When that order was made Mrs Davies had been living in Balmain, in a property owned by her. Six months later she moved to a property she owned in Marulan in rural NSW. That property was considered unsuitable for her needs and plans were made to renovate and repair it. On 30 June 1997, before any substantial improvements had been commenced, Mrs Davies’ health declined and she moved to a nursing home where she remained until she died in 2001.

7 Pursuant to sections 7, 8 and 9 of the Land Tax Management Act 1956, Land Tax is payable on the taxable value of any property in NSW unless exempted by that Act, based on the ownership of the land as at midnight on 31 December immediately preceding the year for which the tax is levied. The Land Tax year runs from 1 January to 31 December. The relevant exemption in this case was the ‘principal place of residence’ exemption. Under section 10(1)(r) of the Land Tax Management Act 1956 if, ‘the land is used and occupied as the principal place of residence of the owner of the land. ... and for no other purpose. ...’, it was exempt from Land Tax.

8 Throughout the period Mrs Davies’ estate was under the management of the Commissioner Mrs Davies owned, in addition to the Balmain and Marulan properties, six other properties, most of which were in or around Marulan. The Balmain property was valued at about $250,000 and the Marulan property in which she resided in 1997 at about $35,000.

9 In 1997 the Protective Commissioner advised the Office of State Revenue (‘OSR’) that Mrs Davies’ Balmain property was her principal place of residence. Accordingly, as the total value of Mrs Davies’ other properties did not meet the threshold prescribed for the payment of land tax, she was not liable for Land Tax for the tax year 1997.

10 After Mrs Davies moved to a nursing home, the Commissioner failed to claim the principal place of residence exemption on behalf of any of Mrs Davies’ properties. Accordingly, she paid a total of about $16,000 in Land Tax for the Land Tax years 1998, 1999, 2000 and 2001. It is common ground that had the principal place of residence exemption been claimed a lesser amount of land tax would have been payable, depending upon which property was assessed as Mrs Davies’ principal place of residence.

11 In 2005, Mr Davies, acting as the executor of his mother’s estate, lodged an objection with the OSR about the assessment of land tax for the period 1998 to 2001. He claimed that the Protective Commissioner had erroneously paid Land Tax on his mother’s Balmain property throughout that period. The Chief Commissioner of State Revenue (‘Chief Commissioner’) reassessed the assessment for the 2001 Land Tax year and refunded Mrs Davies’ estate, the land tax paid for that year, namely, an amount of $4,807. Mr Davies’ objection was out of time and therefore the Chief Commissioner refused to reassess the preceding three years (section 9 of the Taxation Administration Act 1996).

12 In July 2006, Mr Davies requested the Protective Commissioner to reimburse his mother’s estate for Land Tax paid for the Land Tax years 1998, 1999 and 2000, on the ground that had the principal place of residence exemption been claimed no tax would have been payable.

13 The Protective Commissioner sought the advice of the OSR who responded in a letter dated 12 October 2006, that had the Marulan property been accepted as Mrs Davies’ principal place of residence for the Tax Years, 1998 to 2000, her tax liability would have been approximately $1680 less than the amount paid for that period. On the basis of that advice, on 9 November 2006 the Protective Commissioner paid that amount to Mr Davies characterising it as an ‘ex gratia payment’.

14 Mr Davies challenged that decision claiming that his mother’s principal place of residence throughout the disputed period was the Balmain property. The decision was affirmed on internal review. Mr Davies subsequently applied to the Tribunal for a review of that decision. The Tribunal affirmed the decision. That is the decision the subject of this appeal.

Did the Tribunal have jurisdiction?

15 To answer this question it is necessary to examine the powers of the Protective Commissioner and the Tribunal’s powers on review.

16 Mr Davies initiating application to the Tribunal, seeking review of the decision made by the Protective Commissioner to make an ex gratia payment of $1680 (the subject decision), was made under section 55(1) of the Administrative Decisions Tribunal Act 1997 (‘Tribunal Act’) which provides that an ‘interested person’ may apply to the Tribunal for review of a ‘reviewable decision’. A reviewable decision is defined by section 8 of that Act to mean ‘a decision of an administrator that the Tribunal has jurisdiction under an enactment to review’. Section 38(1) of the Tribunal Act provides that the Tribunal has jurisdiction to review a decision made by an administrator in the exercise of a function conferred or imposed by an Act if the particular Act grants the Tribunal jurisdiction to do so.

17 Here the relevant enactment is the Protected Estates Act 1983. Section 28A(1) of that Act provides that an application may be made to the Tribunal for review of a decision by the Protective Commissioner ‘made in connection with the exercise of the Commissioner’s functions’ under Division 3 of Part 3 of that Act, if that decision is declared by the regulations to fall within the class of decisions that may be reviewed. Clause 9 of the Protected Estates Regulation 2003 provides that all decisions made by the Protective Commissioner ‘in connection with the exercise of the Protective Commissioner’s functions under Division 3 of Part 3 of the Act’ may be reviewed pursuant to s 28A of the Protected Estates Act.

Was the subject decision made under Division 3 of Part 3?

18 Division 3 of Part 3 of the Protected Estates Act 1983 is headed, ‘Management of estates by Protective Commissioner’ and contains sections 24, 25, 26, 27 and 28. It is self evident that the subject decision bore no relationship to three of those five provisions, namely the power of the Protective Commissioner to employ agents (section 25); execute documents (section 26); or make payments into trust funds (section 27). The remaining provisions relate to the Protective Commissioner’s powers as to property (section 24) and the disposition of money (section 28).

19 Headed ‘Disposition of money in hands of Protective Commissioner’, section 28 gives the Protective Commissioner power to expend money, ‘comprising the whole or any part of the estate of a protected person’ towards one or more of the purposes listed in section 28(1). In 2006, when the subject decision was made the Protective Commissioner’s appointment to manage Mrs Davies estate had been terminated. By the operation of section 34 of the Protected Estates Act 1983, the management of an estate is terminated on the death of the protected person whose estate is under management. As a consequence, the Protective Commissioner among other things was required to pay all money standing to the credit of Mrs Davies’ current account to her legal personal representative: section 42(1)(b).

20 It follows that the subject decision was not an exercise of the Commissioner’s power under section 28 as when it was made, the Protective Commissioner no longer held funds on Mrs Davies’ behalf.

21 Section 24 vests in the Protective Commissioner all functions ‘necessary and incidental to the management and care’ of a protected person’s estate ‘the management of which is committed to the Protective Commissioner’. Section 24(2), sets out a non-exhaustive list of the functions that may be exercised by the Protective Commissioner. These include to ‘settle, adjust and compromise a demand made by or against the estate’, (section 24(2)(g)).

22 While broad in scope the powers conferred by section 24 are limited to those ‘necessary and incidental’ to the management and care of an estate ‘the management of which is committed to the Protective Commissioner’. On a literal reading of section 24 the power to care for and manage an estate does not extend to estates which are no longer under the management of the Commissioner.

23 It follows that the subject decision could not be characterised as a decision made under Part 3, Division 3 of the Protected Estates Act 1983.

Was the subject decision ‘made in connection with’ Division 3 of Part 3?

24 As the Protective Commissioner points out, of itself the fact that the subject decision was not made under Division 3 of Part 3, does not deprive the Tribunal of jurisdiction. Its power of review extends to decisions made ‘in connection with the exercise of the Commissioner’s functions’ under that Division.

25 As far as we are aware the phrase ‘in connection with’, has not, been considered by a superior court in the context of section 28A(1)(a) of the Protected Estates Act 1983.

26 As Pearce and Geddes note in ‘Statutory Interpretation in Australia’, 6th edition, Butterworths, 2006 (at pages 359 & 361), the phrase is a commonly used drafting expression that has been the subject of judicial interpretation in a range of legislative contexts. While as Pearce and Geddes point out (at pp 359, 361) such expression takes its ‘colour from its context’, nonetheless those decisions where the phrase has been considered in different statutory contexts, provide useful guidance to its meaning in the context of the Protected Estates Act 1983.

27 In Collector of Customs v Pressure Tankers Pty Ltd and Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 288; (1993) 115 ALR 1 at 10, a Full Bench of the Federal Court commented:

The words ‘connected with’ are capable of describing a spectrum of relationships ranging from the direct and immediate to the tenuous and remote. As Sheppard and Burchett JJ observed in Australian National Railways Commission v Collector of Customs (supra) at 378, the meaning of the word “connection” is wide and imprecise, one of its common meanings being “relation between things one of which is bound up with, or involved in, another” - Shorter Oxford English Dictionary.
28 In Commonwealth of Australia v Shaw [2006] NSWCA 209; 66 NSWLR 325, the Court of Appeal considered the meaning of the phrase ‘connection between’ in the context of section 60I(1)(a)(iii) of the Limitation Act 1969 (NSW) and held that the concept of ‘connection’ is ‘inherently elusive’, and must take its meaning from the specific statutory context, citing in support Collector of Customs v Cliffs Robe Iron Associates (1985) 7 FCR 271; Commissioner for Superannuation v Miller (1985) 8 FCR 153; Taciak v Australian Federal Police (1995) 131 ALR 319 (at [20]).

29 It is uncontroversial that in attending to Mrs Davies’ liability for land tax, throughout the period her estate was under management, the Protective Commissioner was exercising a function necessary and incidental to the management and care of her estate, which it was empowered to do by the operation of section 24 of the Act. The payment of tax for the disputed period, was an exercise of the Commissioner’s power under sections 24 and 28 of the Act. While for the reasons as given the subject decision could not be characterised as a decision made under either of these statutory provisions, nonetheless, in our opinion, it was made ‘in connection with’ the Commissioner’s exercise of power pursuant to Division 3 of Part 3 of the Protected Estates Act 1983. The connection was not remote or very indirect. The decision to make the ex gratia payment came about because, in the exercise of its statutory functions Division 3 of Part 3, the Protective Commissioner failed to notify the Chief Commissioner that one of Mrs Davies’ properties could be considered as her principal place of residence for the purpose of the assessment of her liability for land tax. The result of that administrative error was that Mrs Davies’s land tax assessment was erroneous and she, or her estate, paid more than her correct liability for land tax. That erroneous assessment came about as a direct result of the Protective Commissioner’s management of the affairs of her estate. Once the Chief Commissioner refused to correct the overpayment the Protective Commissioner took corrective action and sought to remedy wrong done to the estate.

30 We agree with the submission put for the Respondent that the phrase ‘in connection with’ was intended by Parliament to grant persons affected by decisions of the Protective Commissioner, which do not strictly or specifically fall within the scope of Division 3 of Part 3 – but which are, nevertheless related to the exercise of powers under that Division, the right to external review by the Tribunal.

31 Before reaching a final view it is necessary to examine the Commissioner’s power to make the subject decision.

Did the Commissioner have power to make the subject decision?

32 The Protective Commissioner concedes that the subject decision was not made under Division 3 of Part 3 of the Protected Estates Act 1983, but did not identify the statutory provision under which the decision was made.

33 The office of Protective Commissioner is established by section 5 of the Protected Estates Act 1983. Section 5(4) provides that the Protective Commissioner shall have the functions conferred and imposed on the Protective Commissioner by or under this or any other Act or law.

34 Division 5 of Part 3 may be relevant in this case and deals with the suspension or termination of management of the estate of a protected person. The management of an estate is terminated upon the death of protected person: section 34(1)(c). Where a protected person dies and the management of their estate is terminated, the Protective Commissioner is required to do a number of things, which include paying any money standing to the credit of the former protected person and handing over any chattels that form part of their estate to the former protected person’s legal personal representative: section 42(1).

35 Section 42(2) gives the Protective Commissioner power to complete a transaction where a protected person dies. It provides:

(2) If a protected person or protected missing person dies, the Protective Commissioner may take such steps as are necessary to complete any transaction:
(a) that relates to the protected person’s or protected missing person’s estate, and

(b) that was commenced before the death of the protected person or protected missing person, and

(c) to which the protected person or protected missing person was a party immediately before the protected person’s or protected missing person’s death.

36 For section 42(2) to apply in this case it would be necessary to establish that first, the relevant step (that is, the making of an ex gratia payment) was necessary to complete a transaction; second, the transaction related to Mrs Davies’ estate; third, the transaction was commenced before her death and; fourth, Mrs Davies was a party to that transaction immediately before her death.

37 In our view it could not be maintained that the first element applied to the facts of this case, that is, the making of the ex gratia payment was a necessary step to complete a transaction commenced before Mrs Davies’ death. Accordingly it is not an exercise of the Commissioner’s powers under section 42(2).

38 For the reason as given in our view the subject decision could not be said to be a decision made under either Division 3 or Division 5 of Part 3. Having carefully examined the Protected Estates Act 1983 we have been unable to identify the statutory provision that empowered the Commissioner power to make the subject decision.

Was the subject decision reviewable by the Tribunal?

39 If our view about the breadth of section 28A is correct, the Tribunal’s power of review will be enlivened, providing a connection exists between the decision, the subject of an application for review, and the exercise of the Commissioner’s power under Division 3 of Part 3. Put another way, it is not a precondition to the exercise of the Tribunal’s power of review, that the subject decision be made under Division 3 of Part 3, providing a relevant connection can be established.

40 That said, the Tribunal’s powers on review are relevant. The Tribunal Act requires the Tribunal to determine whether the decision made by the administrator (in this case, the Protective Commissioner) was the ‘correct and preferable’ decision: section 63(1). Among other things, the Tribunal may affirm, vary or set aside the Protective Commissioner’s decision. In undertaking the task of deciding whether the Protective Commissioner’s decision was the ‘correct and preferable’ one the Tribunal may exercise all of the functions that are conferred or imposed by any relevant enactment on the Protective Commissioner: section 63(2). This means that the Tribunal may exercise all of the functions conferred on the Protective Commissioner by the Protected EstatesAct 1983, not only those it has express power to review, namely those listed in Division 3 of Part 3.

41 The phrase ‘made in connection with the exercise of the Commissioner’s functions’ while broad in scope cannot be said to extend to decisions, which the Commissioner is not empowered to make under the relevant enactment. It goes without saying that the Tribunals’ powers could not be said to exceed those ‘conferred or imposed by any relevant enactment on the Protective Commissioner’.

42 The resolution to this jurisdictional conundrum would appear to turn on whether any relevant enactment confers or imposes on the Protective Commissioner the power to make the subject decision.

43 The Protected Estates Act 1983 is remedial or beneficial legislation as is the Tribunal Act. Applying ordinary principles of statutory interpretation (if that is necessary), section 28A ought be interpreted liberally and beneficially.

44 In this case, the remedial or beneficial construction is that urged on us by both parties. They submit to the jurisdiction of the Tribunal and the Panel. That submission does not vest jurisdiction in the Tribunal or the Panel and of course, neither may assert or assume a jurisdiction they do not have, whatever the wishes or arguments of the parties. Where, however, the parties do not contest our jurisdiction and perhaps especially where a failure to do so may effectively deny an applicant a remedy or the rational possibility of obtaining one, and there is a respectable argument that the Tribunal has been legitimately vested with jurisdiction, it becomes our duty to exercise it.

45 In the absence of further submissions on this point it would be inappropriate in our view to finally determine this issue and therefore we proceed on the basis that Protective Commissioner was empowered to make that decision by the Protected Estates Act 1983.

Grounds of Appeal

46 In the Notice of Appeal Mr Davies identified the following alleged errors of law:

That the Tribunal misapplied the provisions of the Land Tax Management Act 1956.

That the Tribunal erred in finding that the Commissioner ‘did not breach’section 50 of the Protected Estates Act 1983.

47 He also applied for leave to extend the Appeal to the merits.

Alleged Error 1: Misapplication of the provisions of the Land Tax Management Act 1956

48 Mr Davies submits that the Tribunal misapplied the provisions of the Land Tax Management Act 1956. He argues that the Tribunal erred by first, failing to have proper regard to section 3(3)(a) of that Act and, second, by finding that his mother had intended to move to Marulan on a permanent basis.

49 Before addressing these arguments it is necessary to comment on the version of the Land Tax Management Act 1956 the Tribunal was required to consider. The provisions of that Act applying throughout the contested period did not expressly address what constitutes the principal place of residence during any period a person is in receipt of full time care and resides in an aged care establishment. Nor did Revenue Ruling No. LT20, Principal Place of Residence, 8 November, 1989. In contrast, in its current form the Land Tax Management Act 1956 contains detailed and express provisions (see clause 8, Schedule 1A of the Land Tax Management Act 1956).

50 In this appeal Mr Davies made some reference to the current provisions of the Land Tax Management Act 1956. For example he referred the Appeal Panel to the Land Tax 2008 Information Booklet published by the OSR (MFI 1). It is trite to note that unless expressly stated legalisation will not have retrospective operation (see Maxwell v Murphy (1957) 96 CLR 261). Accordingly the current provisions of the Land Tax Management Act 1956 cannot be used as a guide to interpreting earlier versions of that Act.

Failure to have proper regard to section 3(3)(a) of the Land Tax Management Act 1956

51 Section 3(3) provides:

(3) For the purposes of this Act, in respect of any year in respect of which taxation is leviable or payable, land or a flat is not used or occupied as the principal place of residence of a person unless:
(a) that land or flat and no other land or flat has, since before the first day of July that last preceded the commencement of that year , been continuously used and occupied by that person for residential purposes and for no other purpose, or [emphasis added].

(b) in any other case, the Chief Commissioner is satisfied that the land or flat is used and occupied by that person as the person’s principal place of residence.

52 The undisputed facts are that Mrs Davies moved from Balmain to Marulan in mid December 1996 and remained there until she moved into a nursing home on 30 June 1997.

53 Mr Davies contends that as his mother left Marulan to reside in a nursing home on 30 June 1997, by the operation of section 3(3)(a) Balmain constituted her principal place of residence. As we understand his submission, he contends that section 3(3)(a) can only be relied upon where the taxpayer resides in the asserted principal place of residence on 1 July of the relevant year. Appling that logic, he argues that as his mother did not reside in Marulan on 1 July 1997, it did not constitute her principal place of residence for the purposes of section 3(3)(a).

54 Even if correct, that interpretation would not assist Mr Davies as the converse is equally true: she was not resident in Balmain on 1 July 1997.

55 On our reading of the provision it could not be said that either property met the test in section 3(3)(a). Mrs Davies did not continuously use or occupy as her principal place of residence and ‘no other land or flat’ either Marulan or Balmain before 1 July 1997.

56 In its Reasons for Decisions (at [8] to [11]), the Tribunal set out the applicable law and correctly noted that section 10(1)(r) was also relevant to a determination of a person’s principal place of residence. The Tribunal did not expressly state whether section 3(3)(a) applied to the facts of this case however it is implicit from its Reasons that it considered paragraph (b) of section 3(3) to be the relevant provision.

57 Applying the analysis set out above it is apparent that neither Balmain nor Marulan satisfied the test in section 3(3)(a) and accordingly paragraph (b) of section 3(3) applied.

58 For these reasons the Tribunal did not err in proceeding on the basis that section 3(3)(a) did not apply to the facts of this case.

Did Mrs Davies intend to move to Marulan on a permanent basis?

59 Paragraph (b) of section 3(3) requires the Chief Commissioner to be satisfied that ‘the land or flat is used and occupied by that person as the person’s principal place of residence’. The Act does not provide express guidance on the factors to be taken into account in that exercise.

60 Mr Davies contends that the Tribunal erred by finding that his mother had intended to move to Marulan on a permanent basis and that this infected its ultimate conclusion that Marulan would have been regarded by the Chief Commissioner as her principal place of residence.

61 In examining this argument it is useful to set out the exchange of correspondence between the Protective Commissioner and the OSR.

62 After receiving Mr Davies’ complaint, the Protective Commissioner wrote to the OSR on 5 July 2006 and requested an opinion on whether the Balmain property would have constituted his mother’s principal place of residence. In reply the OSR stated:

If this move in residency [from Balmain to Marulan] was sufficiently significant to constitute a change in her principal place of residence, then the land tax assessment for the 1998 to 2000 tax years would have been affected by creating a liability for the Balmain property and an exemption for on the Marulan property.
63 The Protective Commissioner sought further clarification and asked, ‘What in your view would constitute a significant change in principal place of residence?’. The OSR replied in a letter dated 12 October 2006:
Moving personal furniture and effects, and actually using and occupying the Marulan property for the majority of the time would be strong indicators that Marulan, and not Balmain, was the principal place of residence of Mrs Davies.
64 The Tribunal in its Reasons for Decision examined the evidence concerning Mrs Davies’ move to Marulan:
14 [T]he evidence in relation to Mrs Davies’ move was that she lived continuously in the Marulan property from December 1996 to June 1997 and received care services from an agency while she was there. Her son and her daughter both lived in Marulan at the time. The majority of Mrs Davies’ furniture and personal possessions were moved out of the Balmain property. An Occupational Therapist from St John of God Hospital in Goulburn visited Mrs Davies at Marulan on 8 and 12 May 1997 and reported that “ ... Mrs Davies states very clearly during both my home visits, that she wishes to remain living in her present house and have modifications carried out to this house.” Arrangements were made to have renovations carried out to the Marulan property. Before any major work was carried out, Mrs Davies moved into a nursing home.

15 Mr Davies questioned the decision made by the Public Guardian on Mrs Davies’ behalf, to move her to the property in Marulan. He said that there was ample evidence that the property was not suitable for her to live in, as there were stairs and an outside toilet. He said the Protective Commissioner was obtaining quotes to renovate the property but there had been no council approval for any renovation work. ...

65 The Tribunal went on to conclude:
The evidence supports the Protective Commissioner’s assumption that Mrs Davies changed her principal place of residence in December 1996 from Balmain to Marulan. It is apparent that after she moved out of the Balmain property, she never intended to move back into that home permanently. The move to Marulan, although it turned out to be relatively short-lived, was not intended to be a temporary arrangement.
66 The finding made by the Tribunal was one open to it on the evidence available. There is no nothing to indicate that evidence critical to this issue was ignored ( Mifsud v Campbell (1991) 21 NSWLR 725; Fightvision Pty Ltd v Onisforou (1999) 47 NSWLR 473 at 513). In our view no error of law is disclosed.

Alleged error 2: The Tribunal erred in finding that the Commissioner had not breached section 50 of the Protected Estates Act 1983

67 Mr Davies contends that the Tribunal erred by finding that the Protected Estates Act 1983 had not breached section 50 which provides:

50 Consultation by Protective Commissioner

(1) Before the Protective Commissioner takes any action in respect of the estate of a protected person, the Protective Commissioner must determine whether the action is of such a nature that the protected person or the relatives of the protected person should be consulted in relation to the action.

(1A) ...

(2) In determining whether action in respect of the estate of a person is of such a nature that a person referred to in subsection (1) or (1A) should be consulted in relation to the action, the Protective Commissioner shall consider all relevant circumstances and matters, including:

(a) the value of the estate,

(b) the value and nature of any particular property proposed to be affected,

(c) the consequences of the proposed action,

(d) the necessity or practicality of the proposed action, and

(e) the extent (if any) to which the estate may be prejudiced by any delay in the proposed action being taken.

(3) Where the Protective Commissioner determines that any proposed action in respect of the estate of a person is of such a nature that a person referred to in subsection (1) or (1A) should be consulted in relation to the action, the Protective Commissioner shall cause to be taken all such steps as are reasonably practicable in the circumstances to give notice to the person and, before making the order which will result in any such action being taken or before taking any such action, shall consider any submissions made within the period specified in any such notice in response to the notice.
68 Mr Davies contends that the Protective Commissioner was obliged by section 50 to consult with Mrs Davies’ family before any change of residency. He contended that given the Land Tax ramifications of Marulan becoming his mother’s principal place of residence, the move should not have proceeded until such time as the financial ramifications of the move were fully canvassed with tax experts and advice received and discussed with family members.

69 This argument in our view is misconceived. As the Tribunal pointed out (at [16]) it is the role of the Public Guardian not the Protective Commissioner to make decisions about where Mrs Davies should reside. Section 50 applies to ‘action taken … by the Protective Commissioner’. The move to Marulan could not be said to be ‘action taken by the Protective Commissioner’. It follows that section 50 had no application.

Extend to the merits?

70 Section 113(2) of the Tribunal Act provides that an appeal may be made on any question of law and, with leave of the Panel, may extend to a review of the merits of the appealable decision.

71 The Court of Appeal in Lloyd v Veterinary Surgeons Investigating Committee (2005) 64 NSWLR 245, overturning previous Tribunal decisions to the contrary, held that in respect of an internal appeal it is not necessary that an error of law be demonstrated before consideration can be given to extending an appeal to the merits. Since Lloyd, a restrained approach has been taken to the exercise of that discretion. In declining to grant leave to extend to the merits, the Appeal Panel, in Tarjali-Diab v Director-General, Department of Commerce (EOD) [2006] NSWADTAP 41, O’Connor P presiding, said (at [33]):

The Tribunal [at first instance] had the advantage of hearing the evidence first hand. It would be the cause of considerable inconvenience and cost to the respondent if we were to allow the reopening of a case where it has been successful at first instance. Any reopening should not be lightly allowed. The appellant has not demonstrated any errors in the approach taken by the Tribunal, either in law, or in dealing with the evidence or in the fairness of its conduct of the matter.
72 In our view the circumstances of this appeal do not warrant an extension to the merits. There is nothing before us to indicate that any of the shortcomings mentioned by O’Connor, P above occurred in this case.

Orders

Appeal dismissed.