DOI v NSW Trustee and Guardian

Civil and Administrative Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:

DOI v NSW Trustee and Guardian [2018] NSWCATAD 206

Hearing dates:

29 August 2018

Date of orders:

04 September 2018

Decision date:

04 September 2018

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

Emeritus Prof. G D Walker, Senior Member

Decision:

By 14 September 2018 the respondent is to produce to the tribunal copies of all documents in respect of which it claims legal professional privilege in the present proceedings.

Catchwords:

TRUSTEE AND GUARDIAN - review of exercise of manager’s power – legal professional privilege – manner of claiming – whether advice purely on administrative matters – whether privilege lost or waived -- production of documents to tribunal for inspection.

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW)
Civil and Administrative Tribunal Act 2013 (NSW)
Evidence Act 1995 (NSW)
NSW Trustee and Guardian Act 2009 (NSW).

Cases Cited:

Nash v Glennies Creek Coal Management Pty Ltd (No.6) [2014] NSW IRComm 36;
NRMA Ltd v Morgan (No. 2) [1999] NSWSC 694;
Talbot v NRMA Ltd [2000] NSWSC 602.

Category:

Procedural and other rulings

Parties:

DOI (Applicant)

  New South Wales Trustee and Guardian (Respondent)

Representation:

Applicant in person

 

Counsel:
Mr R M Higgins (Respondent)

  Solicitors:
Carroll & O’Dea (Respondent)

File Number(s):

2018/00219185

REASONS FOR DECISION

1. The applicant known as DOI for the purposes of these proceedings, applied to this tribunal on 17 July 2018 for review of a decision by the New South Wales Trustee and Guardian (commonly referred to as TAG) in its capacity as financial manager of the estate of his mother, Mrs A, aged 76 (for the purposes of anonymization and in the interests of convenience the persons involved will be referred to, with all due respect, by their first names).

2. The management of Mrs A's estate was committed to TAG by a financial management order made by the Guardianship Division of this tribunal on 30 September 2016. She is thus a protected person within the meaning of s 38 of the NSW Trustee and Guardian Act 2009 (TAG Act) and the applicant is her guardian and principal carer. She lives at home with her husband, who is also one of her carers, and the applicant.

3. As at 6 August 2014, Mrs A and her husband of 57 years, J****, were the registered proprietors as joint tenants of a property at **** Street, Bondi Junction. On 23 December 2016, the property was sold for $2 million (including a deposit of $200,000), Dibbs Barker, solicitors, acting for J.

4. It is common ground that this tribunal has jurisdiction to hear the current application for review of a decision made in connection with the exercise of the TAG’s functions as financial manager, by virtue of s 62 of the TAG Act, and that the applicant is an “affected person” and thus has standing under that provision to apply for the review. There is also no suggestion that the applicant is anything other than a dedicated and efficient carer who…