FW and FX v Protective Commissioner

Set aside by Appeal:

CITATION:	FW and FX v Protective Commissioner [2009] NSWADT 36
DIVISION:	General Division
PARTIES:	APPLICANTS FW FX RESPONDENT Protective Commissioner
FILE NUMBER:	083133
HEARING DATES:	10 December 2008
SUBMISSIONS CLOSED:	18 December 2008
DATE OF DECISION:	19 February 2009
BEFORE:	Hennessy N - Magistrate (Deputy President)
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Protected Estates Act 1983
REPRESENTATION:	APPLICANTS In person RESPONDENT T Tunbridge, solicitor
ORDERS:	The decision of the Protective Commissioner to wind up the sole trader business in the name of FW is affirmed.

Introduction

1 FW is a 79-year-old woman with mild dementia, memory problems and some physical disabilities. She and her son, FX, each own a half share in a farm located in the central west of New South Wales. FX operates the farming business under the name of his mother, as a sole trader. Following an application to the Guardianship Tribunal, FW’s estate was committed to the Protective Commissioner on 17 April 2002. Her son strenuously objects to the Protective Commissioner managing his mother’s estate and is determined to make financial decisions on his mother's behalf. He is not co-operating with requests and decisions of the Protective Commissioner.

2 On 25 February 2008 the Protective Commissioner decided to wind up the sole trader business in the name of FW. The reason for that decision was that “as sole trader FW is personally liable for all debts and her personal property may be vulnerable for debts and other business liabilities.” The Protective Commissioner characterised the process of winding up the business as involving “purely paperwork” which would not prevent FX from carrying on his own farming business. FX applied to the Tribunal for a review of that decision on behalf of himself and his mother. FX says that he is not against this decision but that it must be done at the right time. He says that the federal government is planning reforms in relation to pension entitlements in 2009 and that a final decision should not be made until the details of any such reforms are known.

3 Mr Tunbridge, representing the Protective Commissioner, says that the business should be wound up and then arrangements can be made to transfer FW’s share of the property to FX. He added that care needs to be taken to ensure that FX is compensated and receives all the government benefits to which she is entitled. On the basis of the submissions from each party, the issue is whether the decision to wind up the sole trader business should be made now or at some time in the future.

Tribunal’s jurisdiction

4 The Tribunal has jurisdiction to review the Protective Commissioner’s decision: Administrative Decisions Tribunal Act 1997 (ADT Act) section 38(1), Protected Estates Act 1983, section 28A. All decisions made by the Protective Commissioner “in connection with the exercise of the Protective Commissioner’s functions” may be reviewed: Protected Estates Regulation 2003, clause 9.

5 Section 63 of the ADT Act says that…