Efk v NSW Trustee and Guardian - [2020] NSWCATAD 171

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: EFK v NSW Trustee and Guardian [2020] NSWCATAD 171
Hearing dates: 4 February 2020
Date of orders: 3 July 2020
Decision date: 03 July 2020
Jurisdiction: Administrative and Equal Opportunity Division
Before: L Organ, Senior Member
Decision:
Pursuant to s 55 (1) (b) of the Civil and Administrative Tribunal Act 2013 the proceedings are dismissed because they are misconceived.

Catchwords:
ADMINISTRATIVE LAW – merits review

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

Cases Cited:
DXG v Public Guardian [2020] NSWCATAD 129
NSW Department of Premier and Cabinet v Cianfrano [2009] NSWADTAP 15

Category: Principal judgment
Parties: EFK (Applicant)
NSW Trustee and Guardian (Respondent)
Representation: Solicitors:
Agatha Satala (Applicant)
R Sawtell (NSW Trustee and Guardian) (Respondent)

File Number(s): 2020/00005341
Publication restriction:
The publication of the name of the applicant or any other person mentioned in these reasons for decision is prohibited pursuant to s. 64(1)(a) of the Civil and Administrative Tribunal Act 2013.
Note: 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

Overview

The applicant referred to as EFK, seeks a review of a decision of the NSW Trustee and Guardian (NSWTG) who is the appointed financial manager of EFK’s uncle. EFK’s uncle is referred to as JBC.
On 23 May 2018 the Guardianship Division of the Tribunal found JBC was incapable of managing his financial affairs and committed the management of the estate of JBC to the NSWTG.
JBC was at the time of the hearing of the current proceedings 97 years old and was residing in an aged care facility. Prior to this he had been living in his unit in the inner west of Sydney (the property).
On 22 March 2019 approval was given by NSWTG to enable EFK to buy JBC’s property at the lower end of the market value of $730,000 less agents commission and advertising costs, that is a sale price of $708,000. If EFK was unable to pay the sum the property was to be sold on the open market.
Following representations by EFK, the NSWTG amended the decision of 22 March 2019 by agreeing that EFK could purchase the property of JBC for $500,000. The reason given for that decision was because the decision maker felt reassured that it was JBC’s wish for the property to be sold at a significantly discounted price to his nephew EFK.
However, EFK’s sister sought an internal review of that decision under s 53 (3) of the Administrative Decisions Review Act, 1997 together with a review of a decision by NSWTG to decline her claim for reimbursement of $45,000 to her for expenses she claimed to have paid from her own funds on JBC’s behalf.
On 12 December 2019 the internal reviewer decided to…

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: [2020] NSWCATAD 171
Decision Date: 03 July 2020

CaseChat Overview and Summary

Efk took the NSW Trustee and Guardian to the Civil and Administrative Tribunal (CAT) seeking a review of a decision made by the Trustee. The decision in question pertained to the Trustee's refusal to provide certain information to Efk under the Freedom of Information Act 1974 (NSW). Efk contended that the refusal was unlawful, and sought an order compelling the Trustee to disclose the information. The NSW Trustee and Guardian responded by arguing that the application was misconceived and should be dismissed.

The primary legal issue before the tribunal was whether the application was misconceived and therefore an improper use of the tribunal's jurisdiction. In determining this, the tribunal considered the scope of the merits review provisions under the Civil and Administrative Tribunal Act 2013, and the nature of the decision made by the Trustee. The tribunal also examined the grounds upon which Efk claimed the decision was unlawful.

The tribunal concluded that the application was misconceived, as it did not fall within the scope of the tribunal's jurisdiction. The tribunal held that the decision of the Trustee was not subject to merits review under the Civil and Administrative Tribunal Act 2013. The tribunal found that the decision was one that was immune from review on the merits, and therefore the application was misconceived. Accordingly, the proceedings were dismissed pursuant to section 55(1)(b) of the Civil and Administrative Tribunal Act 2013.

Orders

Orders of the court

Pursuant to s 55 (1) (b) of the Civil and Administrative Tribunal Act 2013 the proceedings are dismissed because they are misconceived.

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

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	EFK v NSW Trustee and Guardian [2020] NSWCATAD 171
Hearing dates:	4 February 2020
Date of orders:	3 July 2020
Decision date:	03 July 2020
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	L Organ, Senior Member
Decision:	Pursuant to s 55 (1) (b) of the Civil and Administrative Tribunal Act 2013 the proceedings are dismissed because they are misconceived.
Catchwords:	ADMINISTRATIVE LAW – merits review
Legislation Cited:	Administrative Decisions Review Act 1997 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) NSW Trustee and Guardian Act 2009 (NSW)
Cases Cited:	DXG v Public Guardian [2020] NSWCATAD 129 NSW Department of Premier and Cabinet v Cianfrano [2009] NSWADTAP 15
Category:	Principal judgment
Parties:	EFK (Applicant) NSW Trustee and Guardian (Respondent)
Representation:	Solicitors: Agatha Satala (Applicant) R Sawtell (NSW Trustee and Guardian) (Respondent)
File Number(s):	2020/00005341
Publication restriction:	The publication of the name of the applicant or any other person mentioned in these reasons for decision is prohibited pursuant to s. 64(1)(a) of the Civil and Administrative Tribunal Act 2013. Note: 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.