DOI v NSW Trustee and Guardian - [2020] NSWCATAD 192

No judgment structure available for this case.

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: DOI v NSW Trustee and Guardian [2020] NSWCATAD 192
Hearing dates: 3 and 28 October 2019, 6 and 16 February 2020
Date of orders: 29 July 2020
Decision date: 29 July 2020
Jurisdiction: Administrative and Equal Opportunity Division
Before: C A Mulvey, Senior Member
Decision:
(1) The Respondent’s decision to reimburse DOI and B for expenses incurred in relation to A and the payment of any shortfall is set aside and remitted to the Respondent to make a further decision.
(2) In all other respects the decision of the Respondent made on 21 December 2018 is affirmed.

Catchwords:
ADMINISTRATIVE LAW – review under section 62 NSW Trustee and Guardian Act 2009 (NSW) – Trustee and Guardian - interests and welfare of protected person – financial management order.

Legislation Cited:
Administrative Decisions Review Act 1997(NSW)
Civil and Administrative Tribunal Act 2013 (NSW)
Civil and Administrative Tribunal Rules 2014 (NSW)
Guardianship Act 1987
NSW Trustee and Guardian Act 2009 (NSW)

Cases Cited:
McDonald v Guardianship Administration Board [1993] 1 VR 521 at 530
YG & GG v Minister for Community Services (2002) NSWCA 247

Category: Principal judgment
Parties: DOI (Applicant)
NSW Trustee and Guardian (First Respondent)
Community Justice Centres (Second Repsondent)
Representation: Solicitors:
Applicant (Self Represented)
NSW Trustee and Guardian (First Respondent)

File Number(s): 2018/00067388
Publication restriction: Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 the Tribunal restricts disclosure of the name of the applicant and the second and third respondent’s, or of evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons.

Reasons for Decision

This is an application, filed on 1 March 2018 for administrative review of 29 internal decisions made by the NSW Trustee and Guardian (the Trustee) on 21 December 2018 (the Reviewable Decision). The applicant is referred to as ‘DOI’. The Trustee is the first respondent. The Trustee is the financial manager of the estate of DOI’s mother, who is referred to as ‘A’. I have referred to A’s husband and the father of DOI as ‘B’.

Background

A and B are of advanced age and have a number of children. DOI resides with his two parents in a suburb of Sydney. He is the primary carer for A. DOI’s siblings do not reside in the family home.
On 30 September 2015, the Guardianship Division of this Tribunal determined A to be incapable of managing her financial affairs. The Tribunal proceeded to make a financial management and committed the management of her estate to the Trustee pursuant to Part 3A of the Guardianship Act 1987 (‘the Guardianship Act’).
DOI asserts the Trustee made twenty nine decisions under section 62 of the NSW Trustee and Guardian Act 2009 (‘the Act’) in the exercise of its function as the manager of A’s estate. DOI contents that he is an ‘affected person’ in relation to each of the twenty nine decisions. He does not accept the decisions made by the Trustee and seeks this Tribunal to undertake an administrative review of the same.
The hearing took place over four days. DOI was self-represented and I gave him latitude in the presentation of his case. I assisted him as best as possible with the hearing process. DOI, understandably, took some time to appreciate technical aspects of the hearing and objections to evidence made by Mr Mackey.
In a letter dated 29 January 2018, DOI sets out the twenty nine decisions he asserts were made by the respondent to be reviewed in this application.
Of those twenty nine decisions DOI withdrew items 9, 11, 12, 13, 14, 15, 17, 19, 23, 24, 25, 26 and 29.
The remaining purported decisions are pressed by DOI which he seeks to be reviewed (the Reviewable Decision):

1.   The Trustee’s decision not to acknowledge, investigate or remedy any of the specific complaints in my letter of 20 November 2017.
2.   The Trustee’s decision not to acknowledge, respond to or address the complaints of my father, (B), particularised (with copies enclosed) in my letter of 20 November 2017.
3.   The Trustee’s decision not to provide an initial budget for my mother upon taking control of her estate, despite being given detailed information about her living expenses.
4.   The Trustee’s decision not to provide my mother with a copy of an initial budget plan upon taking control of her estate.
5.   The Trustee’s decisions not to prepare reviewed budgets for the second and third years of its management of my mother’s estate.
6.   The Trustee’s decision not to provide my mother with copies of reviewed budget plans for the second and third years of its management of her estate.
7.   The Trustee’s decision not to consult with my mother as the person acting in the capacity of her guardian as part of its annual budget review process.
8.   The Trustee’s decision not to consult with the person acting in the capacity of her principal carer as part of its annual budget review process.
10.   The Trustee’s decision to engage an external consultant for the preparation of a budget for my mother without first consulting her husband, son, principal carer and guardian.
16.   The Trustee’s decision to stop my father receiving and having access to his own land tax information.
18.   The Trustee’s decision not to remedy decision 16.
20.   The Trustee’s decision to continue to receive land tax invoices and reminders on behalf of my father without warning him that it was allowing his land tax debt to accrue.
21.   The Trustee’s decision not to correct my father’s records and the status at the Office of State Revenue in regard to his land tax.
22.   The Trustee’s decision not to compensate my father for the legal fees, accounting fees and late penalties resulting from its improperly stopping him receiving land tax statements for his own property.
27.   The Trustee’s decision not to back-pay the shortfall between the $200 weekly allowance and the amount properly payable (when it had information showing that the weekly allowance should fairly and reasonably have been more than double this amount).
28.   The Trustee’s decision not to involve me or provide me with details of decisions made in contact or consultation with other family members.

On 23 October 2019, a few days before the second day of hearing, DOI filed written submissions setting out that he ‘felt landlocked’ and questioned whether he would receive a fair hearing. DOI referred to a number of questions I raised on the first day of the hearing as to which matters he was pressing and which he thought could be withdrawn.
I re-addressed these matters with DOI on the second day of the hearing, restating my intention of trying to identify the real matters in dispute. DOI had a unique way of presenting his case. He was afforded a significant amount of time to do so (4 days). I allowed DOI to revisit the matters raised in his 23 October 2019 submissions, which, in my view ensured he was given every opportunity to obtain a fair hearing. I again indicated to DOI that the Tribunal’s role was to determine an administrative reviewable decision and not to receive and consider a complaint concerning the efficiencies (or not) of the Trustee. Some of DOI’s evidence related to background information which was considered in determining the correct and preferable decision. It is important to include in these reasons that DOI found the initial exercise of identifying the real matters in dispute ‘quite confronting … and … quite overwhelming for a lay person to absorb’. He did acknowledge that I expressed empathy for the stressful nature of the proceedings on him.
On the day of the second hearing DOI said that he requests as part of the Tribunal’s decision that the respondent be ordered to provide written reasons for its decision in relation to 42 other matters. Mr Mackey opposed such an order. DOI was given some time to consider his position and, after a short adjournment the request was withdrawn.
It therefore follows that the scope of this review relates solely to the matters as set out in paragraph 8 above.
At this juncture it is worth noting that the first 2 days of hearing related to the applicant refining his request for administrative review as set out above.
The hearing was adjourned part-heard and recommenced on 6 and 12 February 2020.

Evidence

On the first day of the hearing documents were admitted into evidence as set out below. DOI sought to tender a bundle of letters predominantly relating to interlocutory matters. He submitted that some of the correspondence related to the substantive matters which were to be determined. Mr Mackey did not oppose the tender providing the chain of correspondence was also admitted. Given that DOI was unrepresented and submitted that the documents were relevant, I granted him the indulgence and admitted the tender acknowledging.
Mr Mackey read onto the transcript, and later admitted a letter, absent objection from DOI. The letter related to correspondence addressed to the Tribunal dated 3 May 2018 from the respondent. It reads: ‘In response to your letter dated 19 April 2018, I attach a further set of s58 documents. The spreadsheet in relation of all matters raised on A3 paper and large type.’
The documents relied upon by DOI are:

Application and supporting letters (A1).

Bundle of documents filed 23 October 2019 (A2).

Bundle of documents filed 25 October 2019 (A3).

Bundle of letters (A4).

Proposed Statutory Declaration of DOI (A5).

Bundle of documents evidencing budget obligation of the Trustee (A6).

The documents tendered by the Trustee were:

S58 Bundle (R1).

Further and supplementary s58 documents (R2).

Both DOI and the Trustee relied upon written submissions which I have taken into consideration.
In the Tribunal’s Order of 3 October 2019, a notation appears that DOI was not pressing item numbers contained in his letter referred to in paragraph 8 above numbered 9, 17, 13, 23 and 25. That list should have read 9, 17, 23, 24 and 25. I have noted the errors contained in that Order. However, DOI later withdrew decision 13 during the hearing.
The hearing proceeded by way of submissions only. No person was called for cross-examination.

The Issue

I am to determine whether the Reviewable Decision is the correct and preferable decision having regard to any relevant factual material and any applicable written or unwritten law.

The Relevant Legislation

As set out above, on 30 September 2015, the Guardianship Division of this Tribunal found that A was incapable of managing her financial affairs. In these circumstances, there was a need for another person to be appointed as A’s financial manager. It was determined to be in A’s best interests that a financial management order be made pursuant to the provisions of Part 3A of the Guardianship Act.
The estate of A was committed to management by the Trustee.
Chapter 4 of the Act is concerned with 'management functions relating to persons incapable of managing their affairs.' Pursuant to s56(a) of the Act, the Trustee may exercise all the functions necessary and incidental to the management and care of the estate of the managed person.
In managing A’s estate, the Trustee is empowered to exercise a series of powers under s16 of the Act. Relevantly, and amongst other things, these powers include settling, adjusting and compromising a demand made by or against the estate (s16(1)(j)) and paying rates, taxes, assessments, insurance premiums, debts, obligations, costs and expenses and other outgoings (s16(u) of the Act). The powers also allow the Trustee to do or omit all things, and execute all documents, necessary to carry into effect the functions of the Trustee (s16(1)(y) of the Act).
Section 62 of the Act empowers an ‘affected person’ to apply to this Tribunal for administrative review of a decision made in connection with the exercise of the Trustee’s functions under Division 1 of Part 4.5 of the Act. Further, clause 45 of the NSW Trustee and Guardian Regulation 2017 provides for all decisions made by the Trustee in connection with the exercise of the Trustee’s functions under Division 1 of Part 4.5 of the Act are prescribed for the purposes of s62(1)(b) of the Act.
An ‘affected person’ includes:

a managed person in respect of whose estate the decision was made,

the spouse of a managed person in respect of whose estate the decision was made,

any other person whose interests are, in the opinion of the Tribunal, adversely affected by the decision.

It is not in contest that DOI is A’s son. The Trustee conceded for the purposes of this application that DOI is an ‘affected person’.
In determining an application to review the Reviewable Decision, the Tribunal ‘stands in the shoes’ of the Trustee and is required to make the ‘correct and preferable decision’ having regard to any relevant factual material and any applicable written or unwritten law (s63 of the Administrative Decisions Review Act 1997) (the ADR Act).
The review is to be conducted ‘without any presumption as to the correctness of the decision’: McDonald v Guardianship Administration Board [1993] 1 VR 521 at 530. On review, the Tribunal may exercise all of the functions that are vested in the Trustee.
In reviewing a decision the ‘relevant factual material’ includes any material that postdates that decision in order to make the correct and preferable decision at the time of the review of the decision (not at the time the decision was originally made) YG & GG v Minister for Community Services (2002) NSWCA 247 at [25]. In exercising its functions under the Act, the Trustee and, on a review, this Tribunal must give paramount consideration to the interests of A. Section 39 of the Act provides that it is the duty of everyone exercising functions under Chapter 4 of the Act (management functions relating to persons incapable of managing their affairs) to observe the following principles:

‘(a)   the welfare and interests of such persons should be given paramount consideration,
(b)   the freedom of decision and freedom of action of such persons should be restricted as little as possible,
(c)   such persons should be encouraged, as far as possible, to live a normal life in the community,
(d)   the views of such persons in relation to the exercise of those functions should be taken into consideration,
(e)   the importance of preserving the family relationships and the cultural and linguistic environments of such persons should be recognised,
(f)   such persons should be encouraged, as far as possible, to be self-reliant in matters relating to their personal, domestic and financial affairs,
(g)   such persons should be protected from neglect, abuse and exploitation.’

Matters for Determination

The Trustee in its written submissions chose not to undertake an internal review concerning the letter of DOI dated 25 January 2018. Rather it leaves these matters for determination by the Tribunal. In similar circumstances the Trustee does not challenge whether any one or all of the purported 29 ‘decisions’ is a reviewable decision.
We find in relation to each of the remaining purported 29 ‘decisions’ as follows:

1. The Trustee’s decision not to acknowledge, investigate or remedy any of the specific complaints in my letter of 20 November 2017.

2. The Trustee’s decision not to acknowledge, respond to or address the complaints of my father, (B), particularised (with copies enclosed) in my letter of 20 November 2017.

The first of these two purported 29 ‘decisions’ relate to a letter from the applicant to the respondent dated 20 November 2017 and a letter from B to the respondent also of that date.
The letters referred to are found at item 13 in the s58 documents (R1). I note the document itself is addressed to the Principal Registrar of this Tribunal and sent as a carbon copy to the Trustee. Technically the letter is one which was directed to the Tribunal and may not have been a request for a decision to be made by the Trustee. However, I note as follows.
The complaints pertain in general terms to the adequacy (or not) of the Trustee in preparing and settling a budget for the financial management of A’s estate. In particular DOI, and his father, allege that they were not appropriately consulted in relation to the formulation of the budget. Matters are also raised in relation to complaints that the Trustee interfered with B’s land tax position, which is further set out below. DOI raises a number of grievances concerning the Trustee’s response to various complaints that he and his father make in relation to the management of A’s estate. The letter raises other matters which I have not specifically traversed in these reasons for decision given my finding.
It must be noted that a significant number of the matters contained in this letter are in my view complaints about the conduct and reasonableness of responses of the Trustee. It is questionable whether the allegations raised in the letter are indeed decisions of the Trustee. However, I have decided to proceed to make findings in furthering the principles as set out in s39 of the Act. Further delay is certainly not in the best interests of A.
Items 1 and 2 of the Reviewable Decision are framed in terms of the Trustee not acknowledging, investigating or remedying any of the complaints raised in the letters of 20 November 2017. I find to the contrary. On 22 December 2017, the Trustee responded to the matters raised in the letters by DOI and his father. That response is found at document 16 in Exhibit R1. In a further letter of 15 July 2019 the Trustee has again provided a response to DOI. The respondent in its written submissions contends:

‘The respondent says that it did ‘decide’ to respond to the letters of 20 November 2017 and that it did ‘acknowledge, investigate and remedy’ the matters referred to in that letter, in so far as the matters raised were so capable of such a response. In the view of the NSW Trustee, it was impossible, or subsequent events have rendered it unnecessary, to remedy the balance of the 11 sub-complaints raised on pages 2 and 3 of that letter. The NSW Trustee says there is no need for the Tribunal to intervene in relation to these decisions. Some of the matters asserted in these 11 sub-complaints are unjustified or they have otherwise been dealt with as a result of the mediation process or else in subsequent correspondence, and in particular, by way of the letter from the NSW Trustee to the applicant dated 15 July 2019.’

I accept the submissions of the respondent. I find that the Trustee has acknowledged, investigated and/or provided a remedy in relation to specific complaints as set out in the letter of 20 November 2017. The request for review as framed must therefore fail. As discussed repeatedly during the hearing, DOI may not have considered the Trustee’s response as being adequate but that is not the ground for which he seeks administrative review. The grounds upon which he seeks administrative review are that the Trustee did not acknowledge, investigate or remedy any of the specific complaints in the letter of 20 November 2017. The evidence as set out above reveals otherwise.
These two grounds must be dismissed.

3. The Trustee’s decision not to provide an initial budget for my mother upon taking control of her estate, despite being given detailed information about her living expenses.

4. The Trustee’s decision not to provide my mother with a copy of an initial budget plan upon taking control of her estate.

5. The Trustee’s decisions not to prepare reviewed budgets for the second and third years of its management of my mother’s estate.

6. The Trustee’s decision not to provide my mother with copies of reviewed budget plans for the second and third years of its management of her estate.

DOI’s main argument in relation to budgets is that the documents produced by the Trustee namely ‘budget report’, he says, are not ‘budgets’. DOI spent some time during the hearing arguing what a budget is. He tendered (Exhibit A6) a document which is purported to be an extract from the Trustee’s Financial Management Handbook which sets out that a budget is ‘a budget is a yearly plan put together by NSW Trustee and Guardian to manage your money’. He has tendered an extract indicating:

‘electronic records have confirmed that your mother had 3 approved budgets covering the periods:
•   30 September 2015 to 29 September 2016
•   30 September 2016 to 29 September 2017
•   30 September 2017 to 29 September 2018’

In the bundle (Exhibit R2) budget reports prepared by the Trustee are included for the years 2015 to 2016, 2016 to 2017, 2017 to 2018, 2018 to 2019. As pointed out to DOI during the hearing, his request for a review relates to the alleged failure of the NSW Trustee to prepare a budget for A. I do not accept DOI’s argument that the document referred to above is not a ‘budget’. DOI submitted that a budget should be complied in terms which were akin to a document an accountant might prepare for a person. DOI prepared lengthy submissions as to what should or should not be included in a budget. There was no expert evidence before me in this regard. I find that the Trustee has prepared budget reports for A. DOI complained that in some of the budget reports, a ‘0’ is included in the budget column. This in itself does not enable a finding that there was no budget prepared. As set out below, DOI has agreed in principle to accept repayment of expenses which were incurred by himself and his father on behalf of A based upon a budget. This is a persuasive factor to be considered in finding that a budget has been prepared for A, and to a significant extent, it can be inferred as a budget that meets A’s current needs, otherwise, agreement would not have been reached. DOI, A and B have been provided with a copy of the ‘budget reports’. I am not satisfied he has made out his case in relation to these matters. If DOI argues that the budget report is inadequate or it does not meet A’s needs, then this is a matter in which he should seek a review. However, this was not a matter before me to determine in respect of decisions 3, 4, 5 and 6. The grounds are dismissed.

7. The Trustee’s decision not to consult with myself as the person acting in the capacity of her guardian as part of its annual budget review process

8. The Trustee’s decision not to consult with the person acting in the capacity of her principal carer as part of its annual budget review process.

The Trustee, possibly, may have not consulted with DOI to the extent he thought was appropriate in relation to the preparation of A’s annual budget review process. However, there is evidence before me, including a large degree of DOI’s submissions, that the Trustee has corresponded with, and involved, DOI in preparing the annual budget review process. It is disingenuous to suggest that the Trustee has not involved DOI in this process. Whilst not all of the evidence demonstrating this finding is referred to, the following are matters are but some of the correspondence evidencing my findings:

Exhibit R2 letter to DOI from the Trustee 15 July 2019,

draft Statutory Declaration for DOI’s completion annexed to that letter,

letter from the Trustee to DOI 26 June 2019 annexing the 2015, 2016, 2017 and 2018 budgets,

letter from the Trustee to DOI 22 December 2017,

letter from the Trustee to DOI 5 May 2016,

letter from the Trustee to DOI 22 December 2017 inviting him to participate in a meeting,

letter from the Trustee to DOI 14 February 2018.

Documents relied upon by DOI include DOI’s submissions Exhibit A2, pages 11 to 12 setting out various correspondence and communication he has had with the Trustee in relation to budget reviews. I acknowledge that it appears some of the correspondence appears to have gone unanswered.
On page 16 of DOI’s submissions (Exhibit A2) he proposes the following:

‘In regard to the budget related decisions it may be more effective to make, at least initially, a wholistic approach in an attempt to establish common ground, provide clarity and resolve the matters as simply as possible. This may best be now done by putting forward what I consider to be the C&PD with a key reason for this.’

DOI sets out two options, being to pay the outstanding budget allowance amounts owing to him and his father without further delay. The second option is to undertake a third time of scrutinising a ‘treatise’ of receipts and documents and information explaining what the allowance money relates to, together with the already ‘twice independently scrutinised, affirmed and formally approved allowance figure determined’, the correct and preferable decision is to pay the outstanding budget allowance amounts owing’ to DOI and his father. DOI goes on to request an assurance that he will always be consulted prior to any budget review, prior to any significant decision or major decision being made, and always being consulted prior to any decision that requires consultation of any other family members or A. I decline to make such an order due to the uncertainty of the request.
The Trustee has agreed to and proposes to pay an amount of $84,918 to reimburse DOI and his father in relation to certain allowances being paid personally by them for A. A Statutory Declaration annexed to the Trustee’s letter of 15 July 2019 has been sent to DOI. DOI refuses to sign the statutory declaration on the basis that the offer to reimburse those expenses is made on certain conditions. One of those conditions requires DOI to confirm that the payment of the said sum will satisfy his claim in full and final satisfaction for reimbursement of personal expenses paid for A. He is also required to produce bank statements. It became apparent during the hearing that one of the reasons that DOI is refusing to accept the condition of the payment being made in full and final settlement of any claim, is because there are further claims that DOI and B are yet to make. This submission came as some surprise to Mr Mackey. Mr Mackey assumed that the Trustee had exhausted all of the outstanding claims for reimbursement of expenses concerning A over the course of this application and prior to it being made. It appears that this is not the case.
After hearing these submissions, Mr Mackey suggested that it is open to me to resubmit that decision to the Trustee for further consideration. By doing so, all matters concerning any outstanding reimbursements can be redetermined with a view to bringing the matter to an end. DOI opposed this submission.
I find favour in the Trustee’s position in this regard. I find it would be otiose to make any finding about the decision to reimburse DOI and B in circumstances where a further claim is to be made. To do so would offend the principles set out in s. 39 of the Act.
I am not satisfied that DOI has established that he has not been involved in the preparation of budgets and a review. I accept there has been some delay by the Trustee in responding to `DOI’s request. However, the more recent correspondence indicates that DOI has been actively involved in budget reviews and has agreed that a fortnightly payment of $741 per week is a payment which is adequate to meet A’s needs. The grounds are dismissed.
I note DOI refuses to provide any bank statements to assist the Trustee in justifying the claim being made for reimbursement of expenses. I do not accept DOI’s submission that it ‘is wrong in principal to hand over bank statements’. It would appear to be a usual and logical request of a prudent financial manager. As would the production of receipts evidencing the expenses which DOI said he has retained. Given my findings in the following paragraph, I do not need to make a specific finding in this regard.
In so far as the decisions relate to any agreement between the Trustee and DOI for reimbursement of expenses paid by him, or B, for the benefit of A, that decision is set aside and remitted to the Trustee for further consideration.

10. The Trustee’s decision to engage an external consultant for the preparation of a budget for my mother without first consulting her husband, son, principal carer and guardian.

It is uncontroversial that the Trustee decided to engage an official visitor to assist in the preparation of a budget concerning A. DOI challenged that appointment and the arrangement did not proceed. I am not satisfied that there is any obligation on the Trustee to first consult DOI or B in relation to the appointment of an official visitor pursuant to s123 of the Act. That provision provides authority to the Trustee to arrange for a person to visit A and report in writing to the Trustee on the state of mind, bodily health, and general condition of the managed person and on the care and treatment for him or her. The official visitor may also obtain information as to the nature and effect of the assets of the managed person and as to the orders made under this Act in respect of the person.
As indicated above, the official visitor arrangements were cancelled following a complaint by DOI. In these circumstances the decision to engage the authorised visitor has already been resolved. The request for administrative review of the decision is dismissed.

16. The Trustee and Guardian’s decision to stop my father receiving and having access to his own land tax information.

18. Trustee’s decision not to remedy decision 16.

20. Trustee’s decision to continue to receive land tax invoices and reminders on behalf of my father without warning him that it was allowing his land tax debt to accrue.

21. Trustee’s decision not to correct my father’s records and status at the Office of State Revenue in regard to his land tax.

22. Trustee’s decision not to compensate my father for the legal fees, accounting fees and late penalties resulting from its improperly stopping him receiving land tax statement for his own property.

I am not satisfied the evidence establishes that the Trustee made any decision to interfere with or prevent B receiving land tax documentation. Further, DOI has not establish that the Trustee made a decision to ‘stop’ B from receiving and having access to his own land tax information.
DOI was not able to establish that the Trustee had directed B’s records and status at the Office of State Revenue in relation to his land tax to be altered. Indeed, the Trustee has no legal authority or standing to make such a request given that B is not a protected person for whom the Trustee has been appointed as a financial manager. It therefore follows that there is no evidence that the Trustee has any obligation to compensate B in this regard.
These requests for administrative review are dismissed.

27. Trustee’s decision not to pay-back the shortfall between the $200 weekly allowance and the amount properly payable (when it had information showing that the weekly allowance should fairly and reasonably have been more than double this amount).

I repeat the reasons in relation to the matters in paragraph 51 above. Given DOI’s evidence is that there are further decisions to be made relating to reimbursement of expenses, this request for review appropriately falls within the same category. It is remitted to the Trustee for further consideration.

28. Trustee’s decision not to involve me or provide me with details of decisions made in contact or consultation with other family members.

The letter found at Exhibit R2 dated 15 July 2019 from the Trustee to DOI sets out a search undertaken by the Trustee in relation to correspondence within this category. Limited communication between DOI’s siblings has occurred during the time of management. Copies of correspondence and emails have been extracted and are enclosed with that letter, including emails passing between the Trustee and DOI’s siblings dated 8 March2016, 1 April 2016 and 17 August 2016. Mr Mackey submitted that it is not practicably possible that each and every piece of correspondence be automatically exchanged between DOI, the Trustee and his siblings. However, the Trustee in my view has gone to great lengths to address the issue by DOI in this regard. The request for a review of a decision by the Trustee not to provide or include DOI in relation to the correspondence passing between it and DOI’s siblings fails given the review of the evidence before me which indicates that there has been such an exchange. The request does not relate to a decision made about the reasonableness of the decision.
The Order of the Tribunal is as follows:

The Respondent’s decision to reimburse DOI and B for expenses incurred in relation to A and the payment of any shortfall is set aside and remitted to the Respondent to make a further decision.

In all other respects the decision of the Respondent made on 21 December 2018 is affirmed.

**********

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 29 July 2020

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Citations

DOI v NSW Trustee and Guardian [2020] NSWCATAD 192

Cases Citing This Decision

0

Cases Cited

1

Statutory Material Cited

5

YG & GG v Minister for Community Services [2002] NSWCA 247

Medium Neutral Citation:	DOI v NSW Trustee and Guardian [2020] NSWCATAD 192
Hearing dates:	3 and 28 October 2019, 6 and 16 February 2020
Date of orders:	29 July 2020
Decision date:	29 July 2020
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	C A Mulvey, Senior Member
Decision:	(1) The Respondent’s decision to reimburse DOI and B for expenses incurred in relation to A and the payment of any shortfall is set aside and remitted to the Respondent to make a further decision. (2) In all other respects the decision of the Respondent made on 21 December 2018 is affirmed.
Catchwords:	ADMINISTRATIVE LAW – review under section 62 NSW Trustee and Guardian Act 2009 (NSW) – Trustee and Guardian - interests and welfare of protected person – financial management order.
Legislation Cited:	Administrative Decisions Review Act 1997(NSW) Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Guardianship Act 1987 NSW Trustee and Guardian Act 2009 (NSW)
Cases Cited:	McDonald v Guardianship Administration Board [1993] 1 VR 521 at 530 YG & GG v Minister for Community Services (2002) NSWCA 247
Category:	Principal judgment
Parties:	DOI (Applicant) NSW Trustee and Guardian (First Respondent) Community Justice Centres (Second Repsondent)
Representation:	Solicitors: Applicant (Self Represented) NSW Trustee and Guardian (First Respondent)
File Number(s):	2018/00067388
Publication restriction:	Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 the Tribunal restricts disclosure of the name of the applicant and the second and third respondent’s, or of evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons.