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

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.
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.
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).
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.
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] NSWCATAD 105
Decision Date: 05 June 2019

CaseChat Overview and Summary

DTM, the applicant, sought judicial review of a decision made by the NSW Trustee and Guardian, the respondent, in the Civil and Administrative Tribunal of New South Wales. The applicant alleged that the respondent's decision to deny a particular request was unlawful. The respondent applied to dismiss the application on the grounds that the applicant had failed to identify a decision that was administratively reviewable.

The primary legal issue before the tribunal was whether the applicant had identified an administratively reviewable decision made by the respondent. The tribunal had to consider the scope of the reviewable decisions under the Administrative Decisions (Judicial Review) Act 1977 (NSW) and determine whether the respondent's decision fell within that scope. The tribunal also had to examine whether the applicant had identified a specific decision of the respondent that could be subject to review.

The tribunal dismissed the application. The tribunal found that the applicant had not identified a decision of the respondent that was administratively reviewable. The tribunal held that the respondent's decision was not a decision made under an enactment, and therefore, it was not subject to judicial review. The tribunal further held that the applicant had not identified a specific decision of the respondent that could be subject to review. The tribunal found that the applicant had not identified a decision that was final and determinative of the applicant's rights or interests. The tribunal also found that the applicant had not identified a decision that was made in the exercise of a power or duty imposed by or under an enactment.

In light of the above, the tribunal dismissed the application and prohibited the publication or broadcasting of the name of the applicant. The tribunal found that the application was frivolous and vexatious, and the applicant had not made out a case for review. The tribunal ordered that the application be dismissed and that the name of the applicant not be published or broadcast.

Orders

Orders of the court

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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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.