EK v Magistrate J Culver

[2008] NSWADTAP 19

Appeal Panel - External

CITATION:

EK v Magistrate J Culver and ors [2008] NSWADTAP 19

PARTIES:

APPELLANT
EK

FIRST RESPONDENT
Magistrate J Culver

SECOND RESPONDENT
Protective Commissioner

THIRD RESPONDENT
Dr A Ventura

FILE NUMBER:

088001

HEARING DATES:

28 March 2008

SUBMISSIONS CLOSED:

28 March 2008

 
DATE OF DECISION: 

8 April 2008

BEFORE:

Hennessy N - Magistrate (Deputy President); Higgins S - Judicial Member; Whaite A - Non Judicial Member

CATCHWORDS:

Leave to extend to the merits

MATTER FOR DECISION:

Principal matter

DECISION UNDER APPEAL:

N/A

FILE NUMBER UNDER APPEAL:

Local Court Manly matter number 0118259

DATE OF DECISION UNDER APPEAL:

11/06/2007

LEGISLATION CITED:

Administrative Decisions Tribunal Act 1997
Mental Health Act 1990
Protected Estates Act 1983

CASES CITED:

N/A

REPRESENTATION:

APPELLANT
In person

FIRST RESPONDENT
No appearance

SECOND RESPONDENT
No appearance

THIRD RESPONDENT
No appearance

ORDERS:

1. Leave to extend the appeal to the merits of the decision of Magistrate Culver made on 6 November 2007 is refused
2. The decision of Magistrate Culver made on 6 November 2007 is affirmed.

Section 126 of the Administrative Decisions Tribunal Act 1997 applies to this decision.

Section 126 provides

(1A) This section applies only to the following:


(a) proceedings in the Community Services Division of the Tribunal,


(b) appeals to an Appeal Panel from a decision made by the Tribunal in the Community Services Division,



(b1) proceedings in relation to an external appeal made under section 67A of the Guardianship Act 1987 or section 21A of the Protected Estates Act 1983,


(b2) proceedings in relation to a reviewable decision made under the Guardianship Act 1987 or the Protected Estates Act 1983


(c) such other proceedings (or class or classes of proceedings) as may be prescribed by the regulations for the purposes of this section.



(1) A person must not, except with the consent of the Tribunal, publish or broadcast the name of any person:

(a) who appears as a witness before the Tribunal in any proceedings, or


(b) to whom any proceedings before the Tribunal relate, or


(c) who is mentioned or otherwise involved in any proceedings before the Tribunal,



whether before or after the proceedings are disposed of.

Maximum penalty: 10 penalty units or imprisonment for 12 months, or both.

(2) This section does not prohibit the publication or broadcasting of an official report of the proceedings that includes the name of any person the publication or broadcasting of which would otherwise be prohibited by this section.

(3) For the purposes of this section, 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

Background

1 EK was admitted as an involuntary patient to Manly Hospital in November 2007. As required by section 38 of the Mental Health Act 1990 the medical superintendent arranged for her to be brought before a Magistrate to determine whether she should continue to be held in detention or should be discharged. Magistrate J Culver made a mental health order and was then obliged to consider EK’s capacity to manager her financial affairs.

2 The transcript of the hearing on 6 November 2007 discloses that Dr Curran was present at the hearing and that EK was represented by a solicitor, Ms Denton. Magistrate J Culver asked EK if she had had a chance to consider whether an order under the Protected Estates Act 1983 (PE Act) should be made appointing the Protective Commissioner to manager her financial affairs. EK said that she thought it would be a good idea because it would give her a chance to keep her house if she got a job. EK was in default on her mortgage payments at the time.

3 Magistrate J Culver gave EK an opportunity to speak to her solicitor about the prospect of an interim financial management order being made for six months. EK spoke to her solicitor. When the hearing resumed, the transcript records the following exchanges between Magistrate J Culver and EK:

Her Honour: All right, how did you go [EK] with consideration of that issue. Do you agree to me making the order for six months, that is the protected estates order?

EK: It’s fantastic.

Her Honour: Having seen [the social worker’s] report I’m of the belief that it is in your best interests. Ms Denton do you wish to add anything?

Denton: No, I’ve discussed the mechanics of that order with [EK] and she thinks if it’s going to help her keep her home that it’s a good idea.

Her Honour: So therefore, accordingly I make a protected estates order for six months as sought.

4 The order was made under section 20 of PE Act which says that:
(1) A Magistrate or the MHRT may, if it appears to the Magistrate or MHRT necessary or convenient to do so, make an interim order under this Division for a specified period in respect of a patient pending further consideration of the patient’s capability to manage his or her affairs.

(2) Where another order under this Division is not made before the period for which an interim order made expires, the interim order shall be deemed to be revoked on the expiration of that period.

5 Following the making of the protected estates order, the mortgagor bank filed a statement of claim in the possessions list of the Supreme Court. EK appealed to this Tribunal against the Magistrate’s order: PE Act , section 21A. The appeal is an external appeal under the Administrative Decisions Tribunal Act 1997 ( ADT Act ). EK is entitled to appeal on a question of law but must obtain the Appeal Panel’s permission before an appeal on the merits can go ahead: ADT Act , section 118B. An appeal must be lodged within 28 days after the decision maker provides the party with written reasons for the appealable decision, or within such further time as the Appeal Panel may allow: ADT Act , section 118B. The order was made on 6 November 2007 and the appeal was lodged on 21 January 2008.

6 If a Magistrate makes a financial management order, he or she must, if requested to do so, provide a party with formal written reasons for the order as soon as practicable after making the order: PE Act, section 21B. According to EK, she was not provided with reasons for the decision even though she requested that they be provided. Whether or not that is the case, we consider it appropriate to extend the time for EK to lodge her appeal to 21 January 2008. The Local Court has provided the Tribunal with a copy of the order and the transcript of the proceedings. We have assumed that the transcript constitutes the written reasons for decision.

7 EK appeared in person at the appeal hearing. The Magistrate does not have to appear and declined to do so: ADT Act, section 67(2B). Both the Protective Commissioner and the Clinical Director of Manly Hospital, Dr Ventura, declined to appear.

Grounds of Appeal

8 EK’s ground of appeal was that the reasons for decision did not refer to a comment EK said that Dr Ladd made during the hearing. She said that the comment was to the effect that EK should use the financial management order to pursue Dr Peter MacDonald, the Mayor of Manly. EK has a grievance against Dr MacDonald and is seeking to bring legal proceedings against him. According to EK, the Magistrate did not include this comment in her reasons for decision and the decision was incomplete.

9 This ground of appeal does not disclose an error of law for three reasons. Firstly, there is no record in the transcript of Dr Ladd being at the hearing when the financial management order was being considered. Secondly, the transcript does not record Dr Ladd as having made any comment during the hearing, even if he was present. Finally, whether or nor Dr Ladd made the comment, it was not relevant to the question of whether a financial management order should or should not be made.

10 In our view, while EK consented to the financial management order being made at the time, she now regrets that decision and says she would not have agreed to the order if she knew what was going to happen. She now wishes to sell her property personally through her real estate agent. During the hearing she said that the Office of the Protective Commissioner had told her that it would agree to her selling the property privately. Nevertheless, she said that she wished to pursue the appeal.

11 Magistrate J Culver made the order on the basis of the report from the social worker. She was satisfied in accordance with section 20 of the PE Act that it was necessary and convenient for an interim financial management order to be made. Magistrate J Culver was also satisfied that EK consented to the order when it was made. The Magistrate identified and applied the correct legal principles and gave EK a fair hearing. Nothing in the transcript discloses any legal error or any basis on which the Appeal Panel would consider extending the appeal to the merits of the decision.

Orders

1. Leave to extend the appeal to the merits of the decision of Magistrate J Culver made on 6 November 2007 is refused

2. The decision of Magistrate J Culver made on 6 November 2007 is affirmed.