Ehk v NSW Trustee and Guardian

[2020] NSWCATAD 187

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

EHK v NSW Trustee and Guardian [2020] NSWCATAD 187

Hearing dates:

On the papers

Date of orders:

23 July 2020

Decision date:

23 July 2020

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

A Scahill, Senior Member

Decision:

(1) The application is dismissed under s55(1) (b) of the Civil and Administrative Tribunal Act, 2013 (NSW).

(2) The publication of the name of the Applicant is prohibited under s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW)

Catchwords:

ADMINISTRATIVE REVIEW- Decision by NSW Trustee and Guardian as financial manager under Guardianship Tribunal order- application by NSW Trustee and Guardian for dismissal - application misconceived and lacking in substance, not a reviewable decision. Civil and Administrative Tribunal Act, 2013 (NSW); s55(1)(b. Dismissal order.

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW)

Civil and Administrative Tribunal Act 2013, (NSW)

Civil and Administrative Tribunal Rules 2014 (NSW)

NSW Trustee and Guardian Act 2009 (NSW)

NSW Trustee and Guardian Regulation 2017

Cases Cited:

DOI v New South Wales Trustee and Guardian [2019] NSWCATAD 3

DXG v Public Guardian [2019] NSWCATAD 257

DXG v Public Guardian [2020] NSWCATAD 129

Category:

Procedural and other rulings

Parties:

EHK (Applicant)
NSW Trustee and Guardian (Respondent)

Representation:

Solicitors:
Applicant (Self Represented)
M Rice (Respondent)

File Number(s):

2020/00126458

Publication restriction:

The publication of the name of the Applicant is prohibited under s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW). This includes a reference to any information, picture or other material that identifies them or is likely to lead to identification of the Applicant.

REASONS FOR DECISION

What is this matter about?

1. These proceedings concerned an application lodged in the Tribunal by EHK on 23 April 2020 to review a decision of the NSW Trustee and Guardian (TaG).

2. On 28 May TaG filed an application in the Tribunal seeking the dismissal of EHK’s application for review. The Tribunal had to decide whether or not EHK’s application should be dismissed.

3. For the reasons that follow, the Tribunal has decided to dismiss EHK’s application to review a decision of TaG.

4. At the Directions Hearing on 2 June 2020 the Tribunal imposed a timetable for EHK to file any material in response to TaG’s application for dismissal of EHK’s application. The Tribunal also decided that TaG’s Application for dismissal should be determined on the papers – that is without a hearing.

5. The Tribunal also noted at that time that EHK was detained and unable to provide instructions to his legal representative about the application.

6. EHK did not provide a response to TaG's application to dismiss his application to review a decision made by TaG.

7. In this decision the Tribunal refers to EHK the Applicant for review as the Applicant and the NSW Trustee and Guardian (TaG) as the Respondent.

8. The Tribunal made an order under section 64 of the Civil and Administrative Tribunal Act 2013 (CATA) suppressing referral to the Applicant’s name and refers to the Applicant as “EHK”.

Background to the matter

9. On 21 August 2013, the Guardianship Division of the Tribunal made a financial management order and committed the management of EHK’s affairs to the NSW Trustee and Guardian (TaG). That order was later varied on two occasions. EHK submitted an application in November 2018 to revoke the financial management order. The financial management order was revoked from 9 April 2019. The Tribunal did not find that EHK had regained a capacity to manage his own affairs but that it was in EHK’s best interests to revoke the order. TaG was required to pay over the estate to EHK at that time.

10. On 9 March 2020 EHK wrote to the Executive Director of New South Wales TaG .The letter was headed “ Re: Refund of Management fees, Legal fees and missing furniture. The letter stated, “I am writing to your office seeking a refund of the above claims”.

11. In summary, the letter alleged that during the period of management of EHK’s affairs TaG had engaged in illegal activity - overcharging of fees. It noted that the director had declined refunds of $15,000. The letter alleged that since EHK had been released from the order, TaG had used his funds to pay for stored furniture which had now been disposed of. The letter alleged that TaG had not advised EHK that they were ceasing payment for his storage. The letter alleged that TaG had unlawfully required that compensation paid to him in to 8 May 2019 should be deposited to his trust account even though EHK alleged that TaG was not involved in this compensation matter.

12. EHK sent a further letter on 6 April 2020 reiterating his concerns about management fees, legal fees, and missing furniture. The letter complained that two cheques for $9000 had been paid by TaG to a barrister at the time when EHK had legal aid and therefore that the money should not have been paid by TaG. EHK’s letter of 6 April 2020 requested that TaG make an offer of compensation to EHK.

13. TaG responded on 9 April 2020 to EHK stating that all charges had been legitimate. Management fees had been deemed reasonable as it had been necessary to have frequent and intense communications with EHK about management of his financial affairs. All legal fees had been paid at EHK’s request. TaG had made a final payment to the storage company on 2 April 2019 prior to the cessation of the financial management order on 9 April 2019 - within the scope of the order. TaG had advised EHK’s case manager of the storage arrangements at the time of cessation of the order. The storage company had attempted to contact EHK unsuccessfully. TaG advised EHK to contact the New South Wales Ombudsman should he remain dissatisfied with TaG’s dealings with his affairs.

14. EHK’s application for review of a decision made to NCAT on 23 April 2020 nominated TaG’s letter to him of 9 April 2020 as being the decision about which he sought review. The decision had not been correct and EHK sought compensation for the destroying of his furniture.

TaG’s submissions seeking dismissal of EHK’s application for review

15. TaG’s application on 28 May 2020 sought dismissal of EHK’s application on the basis that it was misconceived and lacking in substance and therefore could be dismissed under section 55(1)(b) because it did not refer to a reviewable decision made by TaG. The application for dismissal provided details of all legal costs paid by TaG – an amount of $53,526.75. It noted that the costs had been incurred at EHK’s request for legal representation. The grant of legal aid to which EHK had referred had been terminated.

16. EHK’s goods were put into storage during a period of EHK’s incarceration from 31 May 2018 until 2 April 2019. Storage had cost $3696 and no further payments were made to the removalist after the orders were revoked on 9 April 2019.

17. TaG stated that the application did not refer to a reviewable decision. EHK had not requested an internal review of a decision made by TaG that related to refund of management fees, refund of legal costs, or recovery of missing furniture.

18. The New South Wales Trustee and Guardian Regulation 2017 permitted TaG to charge fees for management of a client’s estate. This was not a reviewable decision “made in connection with the exercise of the trustee’s functions.” The trustee had a policy for waiving of fees in cases of extreme hardship or inequitability, however that case had not been put to them by EHK.

19. Section 59 (d) of the New South Wales Trustee and Guardian Act provides that the Trustee may apply money of the estate of a managed person towards payment of all proper costs incurred in the care of the estate of the person. Payment of EHK’s legal costs fell into this section. EHK had not sought review of the decision to make the payments for his legal costs. EHK had personally contacted the instructed legal representation and had advised TaG that he supported the engagement.

20. The loss of EHK’s personal belongings was not a reviewable decision because the items were allegedly lost after the revocation of the financial management order in April 2019. By this time EHK was now managing his own financial affairs.

The Applicant’s (EHK’s) response

21. EHK has not provided a response to TaG’s application to dismiss his application for review.

Relevant statutory provisions

22. The Tribunal has jurisdiction to review administrative decisions through the operation of section 30 of the Civil and Administrative Tribunal Act 2013 (CAT A) and sections 6,7 and 9 of the Administrative Decisions Review Act 1997 (ADRA) .

23. The Tribunal has power to dismiss an application under s 55(1) of CATA

55 Dismissal of proceedings

1. The Tribunal may dismiss at any stage any proceedings before it in any of the following circumstances:

   (a)   if the applicant or appellant (or, if there is more than one applicant or appellant, each applicant or appellant) withdraws the application or appeal to which the proceedings relate,

   (b)   if the Tribunal considers that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance,

   (c)   if the applicant or appellant (or, if there is more than one applicant or appellant, each applicant or appellant) has failed to appear in the proceedings,

   (d)   if the Tribunal considers that there has been a want of prosecution of the proceedings.

Findings of Fact

24. The Tribunal makes the following findings of fact which were all uncontested in the submissions before the Tribunal.

25. TaG was EHK’s financial manager from 26 March 2015 to 9 April 2019 by order of the Guardianship Division of the Tribunal. During this period of time only EHK’s pension was excluded from management by TaG.

26. TaG ceased to be the manager of EHK’s estate by order of the Guardianship Division of the Tribunal on 9 April 2019

27. The last payment made to the removalist/storage provider by TaG on EHK’s behalf was made on 2 April 2019 – and was within the scope of the Tribunal’s order.

Consideration of TaG’s application for dismissal

28. TaG sought an order that EHK’s application for review be dismissed pursuant to s 55 (1) (b) of CATA. TaG sought dismissal on the basis that:

1. The application had not referred to a reviewable decision.

2. the Applicant had not sought internal review of a relevant decision.

3. The charging of a management fee was not a reviewable decision made in connection with the exercise of TaG’s functions under Division 1 of Part 4.5 of the NSW Trustee and Guardian Act 2009.

4. The Applicant had not sought review of the decision to pay for the Applicant’s legal costs.

5. The Applicant’s furniture was lost after TaG ceased managing the Applicant’s affairs.

29. The Application was therefore misconceived or lacking in substance and could be dismissed under section 55 (1) (b) of CATA

(1) The application had not referred to a reviewable decision.

30. TaG argued that there had been no decision made subject to review. The Tribunal notes that section 6 of ADRA 1997 gives an inclusive definition of a decision. Decision includes any of the following:

(a)   making, suspending, revoking or refusing to make an order or determination,

(b)   giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or permission,

(c)   issuing, suspending, revoking or refusing to issue a licence, authority or other instrument,

(d)   imposing a condition or restriction,

(e)   making a declaration, demand or requirement,

(f)   retaining, or refusing to deliver up, an article,

(g)   doing or refusing to do any other act or thing.

1. Decision made under enabling legislation For the purposes of this Act, a decision is made under enabling legislation if it is made in the exercise (or purported exercise) of a function conferred or imposed by or under the enabling legislation.

   31. The Tribunal is satisfied that TaG’s letter of 9 April 2020 sets out TaG’s understanding of EHK’s request for action from TaG and provides a decision declining to refund TaG’s management fees, the legal fees paid and costs of missing furniture. The Tribunal is satisfied that the matters set out in TaG’s letter of 9 April 2020 constitute a decision under section 6(1)(g) of ADRA.

   32. A “reviewable decision” is defined in section 62 of the Trustee and Guardian Act as either being made in connection with the exercise of the New South Wales trustee’s function under PART 4.5, Division 1 or as being of a class of decisions prescribed by the regulations for the purposes of section 62.

   33. Division 1 referred to in section 62 deals with the management of estates by TaG. This is the function that was being undertaken by TaG for EHK. In this respect the Tribunal is satisfied that TaG’s letter of 9 April 2020 sets out decisions made in connection with the exercise of TaG’s management of EHK’s estate.

   34. TaG asserted that the decision did not fall within the scope of a reviewable decision but did not set out the basis of this assertion. Regulation 45 of the New South Wales Trustee and Guardianship Regulation 2017 sets out that all decisions made by the New South Wales Trustee in connection with the exercise of the New South Wales Trustee’s functions under Division 1, part 4. 5 are prescribed decisions subject to review by NCAT under section 62 of the NSW Trustee and Guardian Act. The Tribunal is satisfied that the management of EHK’s funds to pay out legal fees incurred by EHK, the placing of EHK’s furniture in storage and the decision to charge management fees were all decisions made in connection with TaG’s exercise of its functions to manage EHK’s estate. Further the Tribunal considers that the decision not to refund any of these costs also constitutes a decision made in connection with TaG’s exercise of its functions in managing EHK’s estate.

(2) Requirement for internal review ?

35. TaG submitted that EHK’s application for review should be dismissed because EHK had not sought internal review.

36. Section 55 ADRA provides that if the person was entitled to seek internal review of a decision, they may only seek external review once that internal review has been requested and finalised. Section 55 provides exceptions to this requirement to seek internal review. These exceptions are where the Tribunal is satisfied that the administrator has unreasonably refused to deal with the application for internal review and the application to the Tribunal was made within a reasonable time or where it is necessary for the Tribunal to deal with the application to protect the applicant’s interest and the application was made within a reasonable time following the making of the administratively reviewable decision. It appears from Regulation 45 of the New South Wales Trustee and Guardianship Regulation 2017 that EHK was entitled to seek internal review of at least some of the decisions set out in TaG’s letter of 9 April 2020. The Tribunal does not consider that EHK made an application for internal review which was unreasonably refused consideration by TaG. There is no evidence of this.

37. There was no argument put forward by EHK that it was necessary for the Tribunal to consider his application in order to protect his interests. In these circumstances it is arguable that the failure to seek internal review prevents the Tribunal from dealing with EHK’s application to the Tribunal for review.

38. If, however this is incorrect, the Tribunal proceeded to consider the other grounds on which TaG has sought dismissal of the application.

(3) The charging of a management fee was not a reviewable decision made in connection with the exercise of TaG’s functions under Division 1 of Part 4.5 of the NSW Trustee and Guardian Act 2009.

39. Clause 26 of the NSW Trustee and Guardian Regulation 2017 sets out the calculation of fees payable to the NSW Trustee for direct management of estates.

40. Clause 12 of the NSW Trustee and Guardian Regulation 2017 provides the TaG a general power to charge for services “not otherwise mentioned in this Regulation, being such amount as is agreed on or (in the absence of an agreement) as NSW Trustee determines to be just and reasonable.”

41. TaG asserted that the decision to charge a management fee was not a reviewable decision, but did not set out why this is. TaG had responded on 9 April 2020 to EHK, stating that all charges had been legitimate. Management fees had been deemed reasonable as it had been necessary to have frequent and intense communications with EHK about management of his financial affairs. Further EHK had gained benefit of the interest paid to EHK’s trust account while under the management of TaG. These statements connect the decision not to refund fees with the exercise of the Trustee’s functions in managing EHK’s estate. The statements tie the decision to charge fees with the circumstances of the making of decisions as manager of EHK’s estate and refer to TaG’s interactions with EHK in making decisions. The “difficult” (the Tribunal’s word) interaction with EHK is referred to as a reasoning for the exercise of a discretionary power for TaG to charge fees. In these circumstances the Tribunal is satisfied, that the decision to charge EHK management fees and to not refund them is a decision made in connection with the exercise of TaG’s functions in managing EHK’s estate.

42. As noted, Regulation 45 of the New South Wales Trustee and Guardianship Regulation 2017 sets out that all decisions made by the New South Wales Trustee in connection with the exercise of the New South Wales Trustee’s functions under Division 1, part 4. 5 are prescribed decisions subject to review by NCAT under section 62 of the NSW Trustee and Guardian Act. The Tribunal is satisfied in the absence of reasoning as to why the decision to charge management fees is not a decision in connection with the exercise of the New South Wales Trustee’s functions under Division 1, part 4. 5, that the decision to charge management fees is a decision made in connection with TaG’s exercise of its functions to manage EHK’s estate.

(4) The Applicant had not sought review of the decision to pay for the Applicant’s legal costs.

43. Section 113 of the NSW Trustee and Guardian Act provides that the NSW Trustee may retain or pay out of the estate of a managed person, any money of any such person received by the NSW Trustee, any costs of the NSW Trustee incurred in the care and management of the estate of the person or in the supervision of the management of the estate of the person.

44. The Tribunal is satisfied that EHK’s letters of 9 March 2020 and 6 April 2020 both raise the issues of the payment of legal fees by TaG on EHK’s behalf. In these circumstances it is clear that EHK did seek review of the decision to pay his legal costs.

45. TaG’s submission to the Tribunal sets out a detailed accounting of the legal costs incurred and paid for by TaG while it was managing EHK’s affairs. The Tribunal was not presented with a contrary factual argument to this accounting. The Tribunal is satisfied on the balance of probabilities that this accounting contradicts allegations that legal costs had been inappropriately paid. In these circumstances the Tribunal finds that EHK’s allegations that legal costs were illegally paid and that he is entitled to compensation is lacking in substance.

(5) The Applicant’s furniture was lost after TaG ceased managing the Applicant’s affairs.

46. This submission goes to the factual substance of EHK’s allegations. The Tribunal is satisfied that as a matter of fact TaG’s management of EHK’s affairs ceased with the decision of the Guardianship Division of the Tribunal on 9 April 2019. Correspondence referred to by TaG after this date with the removalist/storage provider shows, on the balance of probabilities, that the items were still with the removalist/storage provider at this time and they became EHK’s responsibility again. The Tribunal finds that the allegation by EHK that he was entitled to compensation from TaG for lost furniture and personal items lacks in substance.

46. In summary the Tribunal is satisfied that EHK was entitled to seek internal review of the decision made in TaG’s letter of 9 April 2020 in relation to the charging of management fees, the disposition of his belongings and the payment of legal costs. EHK did not seek such an internal review and the Tribunal did not have submissions before it to support the exempting of EHK from seeking this internal review.

47. The Tribunal is also satisfied that EHK’s allegations that he was entitled to compensation in respect of TAG’s charging of management fees, payment of EHK’s legal costs and the loss of his furniture is lacking in substance as set out above.

48. I am satisfied that for these reasons the application made by EHK is misconceived and lacking in substance and that the application can be dismissed under section 55(1)(b).

Decision

50. The Tribunal dismisses EHK’s application for review under section 55(1)(b) as lacking in substance.

Orders

1. The application is dismissed under s55(1) (b) of the Civil and Administrative Tribunal Act, 2013 (NSW).

2. The publication of the name of the Applicant is prohibited under s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW)

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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: 23 July 2020