FBT

[2014] NSWCATGD 27

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	FBT [2014] NSWCATGD 27
Hearing dates:	24 July 2014
Decision date:	24 July 2014
Jurisdiction:	Guardianship Division
Before:	McCarthy S, Senior Member (Legal) Creasey H, Senior Member (Professional) Johnston S, General Member (Community)
Decision:	Interstate recognition revoked.
Catchwords:	INTERSTATE RECOGNITION - review of recognition of interstate financial manager - action on review - no assets in NSW - person under a legal incapacity - need for a tutor to commence legal proceedings - reciprocal arrangements between State trustees - no further need for recognition.
Legislation Cited:	Guardianship Act 1987 (NSW) NSW Trustee and Guardian Act 2009 (NSW) Uniform Civil Procedure Rules 2005 (NSW)
Category:	Principal judgment
Parties:	Ms FBT (subject person) State Trustees Ltd (recognised financial manager) The NSW Trustee and Guardian
File Number(s):	52328
Publication restriction:	Decisions of the Guardianship Division of the Civil and Administrative Tribunal have been anonymised to remove any information that may identify any person involved in the Tribunal's proceedings (s 65, Civil and Administrative Tribunal Act 2013 (NSW)).

reasons for decision

What the Tribunal decided

1. The Tribunal revoked the recognition of the order made by the former NSW Guardianship Tribunal now NSW Civil and Administrative Tribunal on 7 January 2013. The original order had recognised State Trustees Limited in Victoria as the financial manager in NSW for Ms FBT.

Review Details

1. This review was requested by State Trustees Limited who sought that the order made on 7 January 2013 be revoked.

The hearing

1. The following people were parties to the review of the financial management recognition order:

(1)   Ms FBT

(2)   State Trustees Limited

(3)   NSW Trustee and Guardian

1. The following people attended the hearing by telephone:

(1)   Ms FBT

(2)   A representative from State Trustees Limited

(3)   NSW Trustee and Guardian

The evidence and the Tribunal's reasoning

Action on Review

1. On reviewing the Tribunal order recognising the appointment of State Trustees Limited as the financial manager for Ms FBT in NSW, the Tribunal must take one of three actions. It must confirm, vary or revoke the recognition of the financial management order.

Background

1. Ms FBT is aged 36 years who resides in supported accommodation in Melbourne, Victoria. On 28 May 2009 the Victorian Civil and Administrative Tribunal made an order appointing State Trustees Limited in Victoria as the administrator of Ms FBT's estate. On 23 November 2012 the Victorian Civil and Administrative Tribunal reviewed this order and renewed the order for a period of three years. On 7 January 2013 the former NSW Guardianship Tribunal decided that the order made by the Victorian Civil and Administrative Tribunal on 23 November 2012 be recognised in NSW.

1. The representative from State Trustees Limited sought that the recognition order made on 7 January 2013 be revoked. State Trustees Limited continue to manage Ms FBT's finances in Victoria in accordance with the Victorian Civil and Administrative Tribunal order dated 23 November 2012.

1. Ms FBT is domiciled in Victoria and does not have assets in NSW.

The views of Ms FBT

1. Ms FBT requested that State Trustees Limited take action to recover moneys that she states are due to her from her mother's estate. She requests that legal action be taken to recover moneys that are due to her.

The views of State Trustees Limited Victoria

1. The representative from State Trustees Limited sought that the recognition order made by the former NSW Guardianship Tribunal on 7 January 2013 be revoked. The recognition order had been made following an application by State Trustees Limited. They had sought recognition of the Victorian order in NSW so that legal action could be taken in NSW to recover moneys concerning Ms FBT's entitlements under her late mother's estate and to seek recovery of moneys from a family member who had received funds for Ms FBT. Legal proceedings were to be instituted if the claim had merit.

1. The representative from State Trustees Limited stated that following the recognition order State Trustees made a request to the NSW Trustee and Guardian under section 81 of the NSW Trustee and Guardian Act 2009 (NSW) that they consider the commencement of legal proceedings in NSW and act as Ms FBT's tutor in any proceedings. He stated that the NSW Trustee and Guardian did not accept this request. State Trustees Limited have not agreed to act as tutor in any proposed legal proceedings to be commenced in NSW.

1. State Trustee's legal advice is that Ms FBT is a person under legal incapacity as she is the subject of a financial management order recognised in NSW and she cannot commence or carry on legal proceedings in NSW except by her tutor. The tutor of a person under financial management in NSW is the financial manager who has the management of the person's estate (reg 7.15 (3) Uniform Civil Procedure Rules 2005). The representative from State Trusteed Limited said that State Trustees Limited have since had further discussions with the NSW Trustee and Guardian as to whether the NSW Trustee and Guardian would accept a written request from them to commence legal proceedings in NSW for Ms FBT and to act as her tutor pursuant to the reciprocal arrangements for the management of person's estates which are managed by an interstate body equivalent to the NSW Trustee (s 81 NSW Trustee and Guardian Act). The NSW Trustee and Guardian has advised State Trustees Limited that it would accept an appointment from State Trustees Limited to act under the reciprocal provisions of the NSW Trustee and Guardian Act provided that the NSW Tribunal's recognition order made on 7 January 2013 is revoked.

The views of the NSW Trustee and Guardian

1. The NSW Trustee and Guardian did not object to the revocation of the recognition order made on 7 January 2013.

Decision

1. The former NSW Guardianship Tribunal now the NSW Civil and Administrative Tribunal made an order on 7 January 2013 recognising in NSW the Victorian Civil and Administrative Tribunal order dated 23 November 2012 where State Trustees Limited was appointed as administrator (financial manager) for Ms FBT. There are no assets or income to be managed in NSW for Ms FBT. The basis for the recognition of the Victorian order was to enable the issuing of legal proceedings for Ms FBT in NSW by a tutor as Ms FBT's financial affairs are formally managed in Victoria. State Trustees Limited had been recognised in NSW as the financial manager for Ms FBT under the recognition order and in accordance with reg 7.15(3) Uniform Civil Procedure Rules is required to be her tutor for any legal proceedings brought on her behalf. State Trustees Limited do not wish to be considered for appointment as a tutor for any proposed legal proceedings in NSW. The NSW Trustee and Guardian has agreed to act as tutor should legal proceedings be instituted subject to the recognition order being revoked and a written request made by State Trustees Limited. Subject to the revocation of the recognition order State Trustees Limited intends to make a written request to the NSW Trustee and Guardian under s 81 NSW Trustee and Guardian Act that they exercise a specified management function being to consider and institute legal proceedings as tutor seeking the recovery of moneys on behalf of Ms FBT.

1. The Tribunal decided to revoke the recognition order made on 7 January 2013 so that consideration of the merits of Ms FBT's claim can be expedited and, if appropriate, legal proceedings be instituted in NSW. A tutor cannot be appointed under the recognition order as State Trustees Limited do not wish to be a tutor in interstate proceedings and the NSW Trustee and Guardian is not willing to act as tutor while State Trustees Limited is recognised as the administrator of Ms FBT's affairs in NSW.

1. The Tribunal can revoke the recognition of a financial management order under s 48B(5) Guardianship Act 1987 (NSW). This provision is silent as to the criteria to be considered by the Tribunal in determining whether a recognition order already made should be revoked. In accordance with the usual principles of statutory interpretation the section is to be read in conjunction with the General Principles of the Act as set out in s 4 Guardianship Act:

It is the duty of everyone exercising functions under this Act with respect to persons who have disabilities to observe the following principle:

(a) the welfare and interests of such persons should be given paramount consideration.

1. State Trustees Limited can issue a written request to the NSW Trustee and Guardian to act as the tutor for Ms FBT in any legal proceedings under the reciprocal provisions of the legislation. This written request can be made by an interstate body which has the equivalent standing of the NSW Trustee and Guardian. The request can be made once the recognition order is revoked as State Trustees Limited will no longer be recognised as being the financial manager for Ms FBT in NSW and they are issuing the request to a reciprocal body in NSW in accordance with the legislative provision. The Tribunal decided that it was in the best interests of Ms FBT to revoke the recognition order made by the Tribunal on 7 January 2013 so that the proposed legal proceedings can be considered and, if meritorious, a tutor appointed to issue legal proceedings for Ms FBT.

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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: 22 October 2014