DTM v NSW Trustee and Guardian

[2019] NSWCATAD 105

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

DTM v NSW Trustee and Guardian [2019] NSWCATAD 105

Hearing dates:

30 April 2019

Date of orders:

05 June 2019

Decision date:

05 June 2019

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

S Higgins, Senior Member

Decision:

1. Pursuant to s 64(1) of the Civil and Administrative Tribunal Act (NSW) (NCAT Act) the publication or broadcasting of the name of the applicant is prohibited.

 2. Application dismissed.

Catchwords:

ADMINISTRATIVE REVIEW – dismissal application on grounds that the applicant has failed to identify a decision of the respondent that is an administratively reviewable decision

Legislation Cited:

Administrative Decisions Review Act 1997(NSW)
Civil and Administrative Tribunal Act 2013 (NSW)
NSW Trustee and Guardian Act 2009 (NSW)
NSW Trustee and Guardian Regulation 2017(NSW)

Cases Cited:

A v A [2015] NSWSC 1778
IA v TA (No 2) [2016] NSWCA 349
IA v TA (No 3) [2019] NSWCA 6
TA v IA [2017] NSWSC 1912

Category:

Principal judgment

Parties:

DTM (Applicant)
NSW Trustee and Guardian (Respondent)

Representation:

Solicitors:

Applicant in person

  J Brouwer, Senior Legal Officer NSW Trustee and Guardian

File Number(s):

2019/00087057

Publication restriction:

S64 Civil and Administrative Tribunal Act 2013 – prohibiting the publication or broadcasting of the name of the applicant. Note: a reference to the name of the applicant includes a reference to any information, picture or other material that identifies the applicant or is likely to lead to the identification of the applicant.

reasons for decision

1. The applicant is a protected person and it is appropriate that a non-publication order is made under s 64(1) of the Civil and Administrative Tribunal Act (NSW) (NCAT Act) prohibiting the publication or broadcasting of his name.

2. On 13 March 2019, the applicant, DTM, lodged an Administrative Review Application (substantive application) and an Application for a Stay or Interim Order (stay application). In his stay application, the applicant sought removal of the respondent, NSW Trustee and Guardian, as the manager of his estate and in his substantive application he alleged the respondent was in breach of final orders, made by the NSW Court of Appeal, on 29 July 2016, in regard to his estate.

3. The applicant’s application’s came before the Tribunal, at directions hearings, on 26 March 2019. At the directions hearing, the Tribunal refused the applicant’s stay application and made a number of orders in regard to the respondent’s foreshadowed application for an order that the applicant’s substantive application be dismissed on the grounds of it being misconceived or lacking in substance:, s 55(1)(b).

4. The respondent’s dismissal application was heard before me on 30 April 2019. After hearing from the applicant and Ms Joanna Brouwer, solicitor, for the respondent, I reserved my decision.

5. The matter in issue in the respondent’s dismissal application is whether the applicant, in his application for administrative review, has enlivened the Tribunal’s administrative review jurisdiction by identifying a decision of the respondent that was an administratively reviewable decision. For the reasons that follow, I find that the applicant has not identified any decision by the respondent that is an administratively reviewable decision. Hence, his substantive application for administrative review is misconceived and should be dismissed.

The Tribunal’s administrative review jurisdiction

6. The jurisdiction of the Tribunal generally is set out in s 28 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) and includes ‘the administrative review jurisdiction of the Tribunal’: NCAT Act, s 28(2)(b).

7. Section 30 of the NCAT Act sets out the nature of the Tribunal’s administrative review jurisdiction as follows:

30   Administrative review jurisdiction

(1)  The Administrative Decisions Review Act 1997 provides for the circumstances in which the Tribunal has  administrative review jurisdiction over a decision of an administrator.

Note.

See section 9 of the Administrative Decisions Review Act 1997.

(2)  …

(3)  An administratively reviewable decision is a decision of an administrator over which the Tribunal has administrative review jurisdiction.

Note.

See section 7 of the Administrative Decisions Review Act 1997.

(4)  An administrator, in relation to an administratively reviewable decision, is the person or body that makes (or is taken to have made) the decision under enabling legislation.

Note.

See section 8 of the Administrative Decisions Review Act 1997.

(5)  An administrative review decision of the Tribunal is a decision of the Tribunal determining a matter over which it has administrative review jurisdiction.

(6)  An administrative review application is an application made to the Tribunal for an administrative review decision.

Note.

Chapter 3 (Process for administrative reviews under this Act) of the Administrative Decisions Review Act 1997 also makes provision for the role of administrators when making administratively reviewable decisions and the role of the Tribunal when conducting an administrative review of such decisions.

8. As noted in s 30(1) of the NCAT Act, the circumstances in which the Tribunal is conferred with administrative review jurisdiction is set out in s 9 of the Administrative Decisions Review Act 1997 (NSW) (ADR Act), That section relevantly provides as follows:

9   When administrative review jurisdiction is conferred

(1)  The Tribunal has administrative review jurisdiction over a decision (or class of decisions) of an administrator if enabling legislation provides that applications may be made to the Tribunal for an administrative review under this Act of any such decision (or class of decisions) made by the administrator:

(a)  in the exercise of functions conferred or imposed by or under the legislation, or

(b)  in the exercise of any other functions of the administrator identified by the legislation.

(2)  If enabling legislation makes provision for applications to be made to the Tribunal in respect of an administratively reviewable decision subject to certain conditions, the Tribunal has jurisdiction under the enabling legislation only if those conditions are satisfied.

(3) …

9. The term ‘administrator’ in relation to an administratively reviewable decision is defined in s 8 of the ADR Act to mean the person or body that makes (or is taken to have made) the decision under ‘enabling legislation’.

10. The term ‘enabling legislation’ is defined in s 4(1) of the ADR Act as follows:

enabling legislation means legislation (other than this Act or any statutory rules made under this Act) that:

(a)  provides for applications to be made to the Tribunal with respect to a specified matter or class of matters, or

(b)  otherwise enables the Tribunal to exercise functions with respect to a specified matter or class of matters.

11. In this case the ‘enabling legislation’ is the NSW Trustee and Guardian Act 2009 (NSW). Part 4 of that Act sets out the management functions relating to persons incapable of managing their affairs. Division 1 of Part 4.5 of that Act contains provisions in regard to the management of estates by the NSW Trustee. Section 62 in that Division, makes provision for administrative review by the Tribunal of decisions of the NSW Trustee that are made in the connection with the Trustee’s functions under that Division and prescribed under the NSW Trustee and Guardian Regulation 2017 (NSW) as follows:

62   Administrative review by NCAT of decisions by NSW Trustee under this Division

(1)  An affected person may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of a decision of the NSW Trustee that:

(a)  is made in connection with the exercise of the NSW Trustee’s functions under this Division, and

(b)  is of a class of decision prescribed by the regulations for the purposes of this section.

(2)  Each of the following is an affected person:

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

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

(c)  any other person whose interests are, in the opinion of the Civil and Administrative Tribunal, adversely affected by the decision.

(3)  Subsection (1) does not apply if the decision of the NSW Trustee was made in accordance with a direction given by the Supreme Court to the NSW Trustee.

12. Clause 45 of the NSW Trustee and Guardian Regulation 2017 provides:

All decisions made by NSW Trustee in connection with the exercise of NSW Trustee’s functions under Division 1 of Part 4.5 of the Act are prescribed for the purposes of section 62 (1) (b) of the Act.

13. Section 55(1) of the ADR Act provides that an application for an administrative review of an ‘administratively reviewable decision’ may only be made by an interested person.

14. As I have noted, the issue in this case is whether the applicant has identified a decision of the respondent, the NSW Trustee and Guardian, which is an administratively reviewable decision by the Tribunal.

Background

15. The background to the applicant’s application was summarised in the submissions of the respondent. The applicant did not dispute that summary and it is convenient to re-iterate some of the relevant events so far as they are referred to in the applicant’s review application.

16. In July 2007, the applicant was involved in a motor vehicle accident and suffered a major injury. In 2009, the applicant commenced a personal injury claim against the driver of the other vehicle, TA, in the NSW District Court. TA’s insurer admitted liability.

17. Since the commencement of his personal injury claim, the applicant has initiated a number of proceedings in the NSW Supreme Court and the NSW Court of Appeal. A summary of those proceedings is contained in a recent decision of the Court of Appeal: IA v TA (No 3) [2019] NSWCA 6, at [6] to [35]. A copy of that decision is attached to the applicant’s substantive review application.

18. In December 2014 the District Court found that the applicant was unable to give instructions to allow his claim to progress. In January 2015, TA, made an application to the NSW Supreme Court seeking an order, under s 41 of the NSW Trustee and Guardian Act, committing the management of the estate of the applicant to the NSW Trustee. On 20 July 2015, Lindsay J made the order sought. The applicant subsequently made an application to have this order revoked. That application was heard before Lindsay J, in November 2015. His Honour made orders confirming the financial management order and dismissed the applicant’s application to have it revoked: A v A [2015] NSWSC 1778.

19. The applicant appealed the decision of Lindsay J to the NSW Court of Appeal. The appeal was heard on 20 June 2016 and the applicant was represented, pro bono, by Mr Hooke SC. On 29 July 2016, the Court of Appeal allowed the appeal and made the following orders:

(a) Set aside the orders of the primary judge dated 20 July 2015, 3 August 2015 and 27 November 2015 in the Equity Division proceedings no. 2015/19513 and the Common Law Division proceedings no. 2015/186082; and (b) Remit the matter to the Equity Division to determine the application in accordance with these reasons.

20. The Court of Appeal allowed the appeal on the basis that IA had not been permitted to call evidence from his treating psychiatrist, when he should have been permitted to do so.

21. In October 2016, the applicant filed a notice of motion and an affidavit in support in the Registry of the Court of Appeal seeking a number of additional orders, including a motion to reopen the appeal proceedings. The applicant’s notice of motion came before Payne JA, sitting as a single judge in the referrals directions list, on 31 October 2016. At the directions hearing the applicant filed an amended notice of motion, which was supported by an amended affidavit. At the directions hearing, His Honour made the following orders:

1. Applicant to file and serve further submissions in support of relief sought in Amended notice of motion filed on 31 October 2016 by 4pm on 15 November 2016.

2. Respondent to file and serve written submissions in response by 4pm on 22nd November 2016.

3. Applicant to file and serve any submissions strictly in reply by 4pm on 25 November 2016.

4. Matter to be determined on the papers by the Court comprising Ward JA, Payne JA and Sackville AJA

22. The applicant’s amended notice of motion was dismissed as incompetent by the Court of Appeal, in December 2016: IA v TA (No 2) [2016] NSWCA 349.

23. On 7 and 8 November 2017, Ward CJ in Eq, re-heard, on remittal from the Court of Appeal, TA’s application, under s 41 of the NSW Trustee and Guardian Act, for an order committing the management of the estate of the applicant to the NSW Trustee. On 24 November 2017, Ward CJ, published her decision and reasons for decision: TA v IA [2017] NSWSC 1912. The orders made by Her Honour were as follows:

1. I declare, pursuant to s 41 of the NSW Trustee and Guardian Act 2009 (NSW) (the Act), that the defendant [IA] is incapable of managing his affairs in relation to his claim for compensation and conduct of District Court proceedings case number 767 of 2009 (the proceedings) arising from a motor vehicle accident which occurred on 2 July 2007.

2.   I order pursuant to ss 40 and 41(1)(a) of the Act that that part of the defendant’s estate relating to the defendant’s claim for compensation and conduct of the proceedings be subject to management under the Act.

3. I order pursuant to s 41(1)(b) of the Act that the NSW Trustee be appointed as manager of that part of the defendant’s estate relating to his claim for compensation and conduct of the proceedings.

24. The applicant’s District Court personal injury claim was finally settled in November 2018.

25. In June 2018, the applicant filed a further notice of motion in the Registry of the Court of Appeal. That notice of motion related to the orders made by Payne JA on 31 October 2016 and a request that Mr Hooke SC to represent him. On 2 July 2018, the Registrar of the Court of Appeal rejected the applicant’s notice of motion and made an order that his filing fee be refunded to him.

26. On 21 December 2018, on the application of the respondent, Lindsay J, made orders concerning the management of the settlement funds from the applicant’s personal injury claim. On 7 February 2019, on the application of the respondent, Lindsay J, made orders concerning the distribution of those funds. The applicant did not enter an appearance when these applications were heard and determined.

27. On 23 January 2019, the applicant filed and served a further notice of motion the Registry of the Court of Appeal, which was described as an ‘Amended notice of motion of 26th June 2016, seeking relief for all damages sustained from 2007 MVA general damages as forensic assessment with precedent’. On 8 February 2019, the Court of Appeal granted the applicant leave to file his amended notice of motion and made an order dismissing that amended notice of motion as being incompetent: IA v TA (No 3) [2019] NSWCA 6.

28. As we have noted, the applicant filed his substantive administrative review application with the Tribunal on 13 March 2019.

Consideration

29. In his Administrative Review Application form the applicant identified the decision for which he sought review was the recent decision of the Court of Appeal in IA v TA (No 3) [2019] (supra). As I have already noted, a copy of that decision is attached to the application.

30. Against the date on which he was notified of the decision, the applicant said:

Judgements of Court of appeal – 29-07-2016 and 31st Oct 2016 STRICT FINAL ORDERS BREACH BY N.S.W TRUSTEE.

31. In his grounds for application, the applicant said:

Procedural Fairness Act 1970 s 101, Commonwealth Law fraud, Practice Procedure Act 2005 UCPR Rules 2005, CODE OF ETHICS MATTERS FINALISED ON 29th July 2016. I WON MY APPEALS on 1st August 2016 Parties modified appeal on 31st October 2016. Both PARTIES and N.S.W. TRUSTEE BEEN STRUCK OFF BEFORE JUSTICE PAYNE, CCTV EVIDENCE OF 31st October Audio CCTV.

32. In his 8 page statutory declaration attached to his application, the applicant set out what he believed to have been a series of injustices in the proceedings before the District Court and the Supreme Court. His account is repetitive and often difficult to understand. However, from his oral submissions at the hearing, I understand the applicant to contend that final orders were made by the Court of Appeal on 29 July 2016 and 31 October 2016. The subsequent orders of the Court of Appeal and the Supreme Court he asserted to have been obtained improperly and it was on this basis that he asserted the appointment of the respondent to manage his estate arising from his personal injury claim was improper.

33. Attached to the applicant’s application was a handwritten note, dated 31 October 2016. In his statutory declaration, the applicant explained that his ‘driver witness’ had been in Court on 31 October 2016 and had made a note of the ‘strict orders’ made by his Honour Justice Payne that day. At the hearing it was the contention of the applicant that the hand written note was a true reflection of the orders that were made that day, which included an order that he was: ‘not to attend any Primary Courts for hearing’. I note there is no record of the Supreme Court or the Court of Appeal having made an order that prohibits the applicant attending a hearing of any matter in which he is a party.

34. The applicant also attached a number of other documents to his application which related to his personal injury claim before the District Court, TA’s application in the Supreme Court and his appeal to the Court of Appeal and his subsequent notices of motion to that Court.

35. It is evident from the terms of his Administrative Review Application form and the material filed with that application that the applicant continues to misunderstand the nature of the proceedings he brought before the Supreme Court and the Court of Appeal: see IA v TA (No 3) NSWCA 6, at [35].

36. He also misunderstands the nature of the Tribunal’s administrative review jurisdiction in that he can only seek review of a decision of the respondent that relates to the respondent’s management of his estate. It is not a jurisdiction where the Tribunal can review decisions or directions made by the Supreme Court or the Court of Appeal.

37. As this is the essence of his review application it is misconceived. Furthermore, in his application for review the applicant has also failed to identify a decision of the respondent relating to the respondent’s management of his estate that is a reviewable decision under s 62(1) of the NSW Trustee and Guardian Act 2009. Hence, there can be no finding other than his application is misconceived and on this basis the appropriate order is to dismiss his application.

Order

38. For the reasons set out above, the following order is made:

1. Pursuant to s 64(1) of the Civil and Administrative Tribunal Act (NSW) (NCAT Act) the publication or broadcasting of the name of the applicant is prohibited.

2. Application dismissed.

**********

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

Registrar

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: 05 June 2019