GDR v NSW Trustee and Guardian

[2024] NSWCATAD 211

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

GDR v NSW Trustee and Guardian [2024] NSWCATAD 211

Hearing dates:

On the papers

Date of orders:

30 July 2024

Decision date:

30 July 2024

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

P H Molony, Senior Member

Decision:

(1)   A hearing with respect to the applicant’s request for confidentiality orders and the respondent’s application for summary dismissal is dispensed with.

(2) The disclosure and publication of the applicant’s name is prohibited under s 64 of the Civil and Administrative Tribunal Act 2013.

(3)   The applicant’s name shall be anonymised for the purpose of these proceedings.

(4) The application for administrative review is dismissed under s 55(1)(b) of the Civil and Administrative Tribunal Act 2013 on the grounds that it is misconceived and lacking in substance.

Catchwords:

ADMINISTRATIVE LAW – administrative review of a decision by NSW Trustee and Guardian under Division 2 Part 4.5 of the NSW Trustee and Guardian Act 2009 to approve appointed manager’s sale of managed persons real property – financial management order revoked after internal review decision – NCAT cannot make orders on review under s 63 of the Administrative Decisions Review Act 1997 because estate no longer under management – proceedings dismissed under s 55(1)(b) of the Civil and Administrative Tribunal Act 2013 as misconceived and lacking in substance.

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW)

Civil and Administrative Tribunal Act 2013

Guardianship Act 1987 (NSW)

NSW Trustee and Guardian Act 2009 (NSW)

Protected Estates Act 1983 (NSW) (Repealed)

Cases Cited:

Attorney-General v Wentworth (1988) 14 NSWLR 481

BDK v Department of Education and Communities [2015] NSWCATAP 129

BNI v NSW Trustee and Guardian [2015] NSWCATAD 69

Choi v University of Technology Sydney [2019] NSWCATAD 176

CCP v NSW Trustee and Guardian [2015] NSWCATAD 256

Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409

DRJ v Commissioner of Victims Rights [2020] NSWCA 136

Misrachi v The Public Guardian [2019] NSWCA 67

The Owners – Strata Plan No. 92334 v Piety Capital Pty Ltd [2019] NSWCATCD 22

State Electricity Commission of Victoria v Rabel [1998] 1 VR 102

State of NSW (Justice Health) v Dezfouli [2021] NSWADTAP 69

Re R [2014] NSWSC 1810

Texts Cited:

None

Category:

Principal judgment

Parties:

Applicant: GDR
Respondent: NSW Trustee and Guardian

Representation:

Applicant: (Self-represented)
Respondent: R Stormont

File Number(s):

2024/00025631

Publication restriction:

Section 64 order prohibiting disclosure or publication of the applicant’s name.

reasons for decision

Background.

1. On 22 January 2024 GDR made an application to the Tribunal seeking administrative review (the application) of a decision made on internal review by the NSW Trustee & Guardian (the Trustee) on 11 January 2024. That decision affirmed an earlier decision by the Trustee to give approval to GDR’s son, who was the appointed private manager of GDR’s estate (the financial manager), to sell a property belonging to GDR.

2. From 18 July 2007 until 16 January 2024 GDR was subject to financial management orders placing his estate under management.

3. The initial financial management order was a reviewable financial management order made by the then Guardianship Tribunal on 18 July 2007, which order was to be reviewed within 12 months. It committed the management of GDR’s estate to the Protective Commissioner, a predecessor of the Trustee. That order was confirmed on review by the Guardianship Tribunal on 1 October 2006, with an order for a further review within 12 months.

4. On review by the Guardianship Tribunal on 6 October 2009, the financial management order was varied. GDR’s estate remained under management but this time under the provisions of the recently commenced NSW Trustee and Guardian Act 2009 (NSW) (the NSWTG Act). GDR’s son was appointed as his private financial manager subject to the provisions of s 25M of the Guardianship Act 1987 (NSW). The effect of that limitation was that, apart from acting to protect the estate, the financial manager was not authorised to deal with it other than in accordance with authorities and directions issued by the Trustee under Division 2 of Part 4.5 of the NSWTG Act. That financial management order was not subject to a review by the Tribunal.

5. On 25 May 2015 the Guardianship Division of this Tribunal (the successor of the Guardianship Tribunal) heard an application made by the Trustee to review the appointment of the financial manager. The Tribunal granted that application and committed management of the estate to the Trustee. GDR appealed that decision to an Appeal Panel of this Tribunal which, on 23 October 2015, allowed the appeal and confirmed the appointment of GDR’s son as financial manager.

6. The financial manager filed an application for review of the financial management order on 9 August 2023. He told the internal review that he was worried that decisions he would have to make concerning his father’s estate may affect their relationship, and it might be better if someone else took over management.

7. In August 2023 the financial manager proposed that a property belonging to GDR, which is uninhabitable due to fire damage, be sold in order address a shortfall in GDR’s income and liquid assets, which exposed him to potential homelessness. The financial manager asked the Trustee to approve the planned sale. GDR opposed this preferring instead to seek to raise equity on the property by borrowing funds under the Commonwealth’s Home Equity Access Scheme. An attempt to access funds in this way failed.

8. On 13 October 2023 the Trustee advised that it consented to the proposed sale of the property. GDR requested an internal review of that decision stating the reasons for his objections to the decision in an email dated 7 December 2023. That request was late.

9. On 11 December 2023 GDR applied to the Guardianship Division to review or revoke the financial management order.

10. On 13 December 2023 the financial manager signed a contract for the sale of the property by private treaty.

11. On 11 January 2024 the Trustee extended time for the making of the internal review request. The decision to approve the sale of the property was confirmed on internal review (the internal review decision).

12. On 17 January 2024 the Guardianship Division heard an application from GDR to review or revoke the financial management order. The Tribunal revoked the financial management order from 16 January 2024 and ordered the financial manager to pay or hand over the estate to GDR.

13. On 22 January 2024 GDR made the application to the Administrative and Equal Opportunity Division of the Tribunal seeking administrative review of the internal review decision. He also sought a stay of the internal review decision.

The applications progress in the Tribunal

14. At an urgent hearing on 22 January 2024 the Tribunal made the following orders:

1. The request by [GDR] to stay the decision made by New South Wales Trustee and Guardian on 13 October 2022 to give approval for [the financial manager] to sell the property … is refused.

2. NSW Trustee and Guardian is to give to the Tribunal and the other party, a miscellaneous application, together with any material and written submissions on which they intend to for dismissal of the matter on the basis that the administrative review is futile, on or before 05 February 2024.

3. [GDR] is to give to the Tribunal and the other party, any material and written submissions in response to the miscellaneous application on or before 26 February 2024.

4. NSW Trustee and Guardian is to give to the Tribunal and the other party, any material in reply on or before 11 March 2024.

5. On or before 18 March 2024, the parties are to make submissions under s 50(3) of the Civil and Administrative Tribunal Act 2013, whether the miscellaneous matters application can be adequately determined in the absence of the parties by considering the written submissions and other documents and material provided to the Tribunal and a hearing of the application dispensed with. A decision in that regard will be made in due course.

15. On 7 February 2024 the Trustee filed a miscellaneous application seeking to have the application dismissed (the dismissal application) under s 55 of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act) on the basis that it is futile and otiose. The respondent has indicated that it does not object to that application being dealt with on the papers. Despite being asked for his views about this, GDR has not expressed a view.

16. When he made the application GDR was advised that if he wished his name to be anonymised in the proceedings, he should apply for an order under s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act). He subsequently did so. On 27 February 2024 the Tribunal directed that the question of anonymisation would be considered when the application for dismissal was considered on the papers. The respondent does not object to such an order being made, or to that issue being determined without a hearing.

17. Since then, GDR sought and was granted an extension of time in which to comply with order 3, until 25 March 2024. A further application for an extension of time by GDR was refused on 16 April 2023.

18. The matter was then referred to me to determine in early July 2023.

19. While I was considering this decision, GDR requested leave to file additional evidence in support of his application, in an email dated 9 July 2024. The email was copied to the Trustee. The leave request was referred to me. On 17 July 2024 I refused leave as follows:

1 The Tribunal is presently considering whether to determine on the papers (a) if it should anonymise GDR's name in his administrative review proceeding, and (b) whether to summarily dismiss those proceedings under s 55(1)(b) of the NCAT Act as sought by the respondent. The issues for the Tribunal to consider with respect to summary dismissal are whether it has power to make any order on review, and whether the proceedings have no utility, are otiose and are moot.

2   The Tribunal is not now considering the substance of the substantive administrative review proceedings.

3   GDR who has previously been refused leave to file late evidence and submissions relating to the summary dismissal issue, has now applied to file and serve fresh and additional evidence, relying on illness and difficulty with internet access as reasons for not previously filing this evidence. The 13 Documents on which GDR now seeks to rely go to the substantive issues in the administrative review application. Their relevance to the legal issues now before the Tribunal is not apparent.

4   In all the circumstances leave to file additional evidence at this time is refused. If the Tribunal decides that the administrative review is to proceed, then both parties will have an opportunity to file and serve additional evidence and submissions.

5   For the purposes of the dismissal application GDR has not established that the documents are relevant to the legal issues to be determined. Further he has had earlier opportunities to file material on which he wishes to rely, which he has not taken advantage of.

The materials before the Tribunal.

20. In considering the issues I have had regard to the following materials.

Filed by GDR:

1. The application filed 22 January 2024 with attachments with attachments.

2. Emails from GDR to the Tribunal dated 22 February 2004 and times at 12:03pm and 1:08pm.

3. Submissions received from GDR dated 11 March 2024 with attached bundle of documents, marked as Doc A5.

4. Email from GDR to the Tribunal dated 12 March 2004.

5. Emails from GDR to the Tribunal dated 9 April 2024 and 15 April 2023 relating to his illness and difficulty attending a AVL directions hearing.

6. Email from GDR to the Tribunal dated 9 July 2024 seeking leave to file additional evidence.

Filed by the Trustee:

1. Dismissal application filed 1 March 2024 seeking dismissal of the application, with attachments including written submissions in support.

2. Reply and submissions filed 21 March 2024 together with attachments.

Other:

1. Various procedural orders made in the proceedings on 22 January 2024, 26 February 2024 (as amended), 10 April 2024, 16 April 2024 and 17 July 2024.

Should the applications be determined without a hearing?

21. Section 50(2) to (4) of the NCAT Act provide:

(2) The Tribunal may make an order dispensing with a hearing if it is satisfied that the issues for determination can be adequately determined in the absence of the parties by considering any written submissions or any other documents or material lodged with or provided to the Tribunal.

(3) The Tribunal may not make an order dispensing with a hearing unless the Tribunal has first:

(a) afforded the parties an opportunity to make submissions about the proposed order, and

(b) taken any such submissions into account.

(4) The Tribunal may determine proceedings in which a hearing is not required based on the written submissions or any other documents or material that have been lodged with or provided to the Tribunal in accordance with the requirements of this Act, enabling legislation and the procedural rules.

22. The Trustee has indicated that it agrees with the preliminary issues being determined on the papers. GDR has not specifically addressed the issue in correspondence, despite being asked to do so. There can be no doubt from the tenor of GDR’s correspondence that he would oppose dispensing with a hearing of the substantive application, as he wants a forum in which to ventilate his issues against the Trustee and his former financial manager. These include allegations of negligence, maladministration and oppression by the Trustee. That is not what the Tribunal is presently considering.

23. In his written submissions, insofar as they go the dismissal application, GDR has indicated that he is not a lawyer and does not have the resources to engage representation to respond to it. His focus is on having a forum in which to ventilate his issues against his financial manager and the Trustee, whose decision he claims have cost him a lot of money.

24. The issue of whether or not to anonymise GDR’s name is a relatively simple one that does not require the calling of witnesses. The request for anonymisation was made by GDR and is not opposed by the Trustee. Having read the materials filed by the parties I am satisfied that it is an issue that can be readily determined without a hearing. I therefore dispense with a hearing in respect to the anonymisation issue.

25. With respect to the dismissal application the issue for determination is whether the administrative review application is, “frivolous or vexatious or otherwise misconceived or lacking in substance” and therefore should be summarily dismissed under s 55(1)(b). At the heart of the case for dismissal is the Trustee’s contention that because the financial management order has been revoked, the Tribunal, as a matter of law, cannot make any order on review affecting GDR’s estate because it is no longer under management. There is no dispute as to the relevant chronology, such as when the decision under review was made or when the financial management order was made and revoked. The facts necessary to determine the dismissal application are not in dispute. There is therefore no need to hear evidence relating to the dismissal application. The issue to be determined is one of law. It is one about which both parties have been given an opportunity to make submissions, and which both plainly understood it was proposed be determined on the papers.

26. Having considered the submissions made by the parties I am satisfied that the dismissal application can readily be determined on the papers without a hearing. I therefore dispense with a hearing of the dismissal application.

Anonymisation.

27. GDR asks that his real name not be disclosed or publicised, and that his name be anonymised for the purpose of the proceedings under s 64 of the NCAT Act. The Tribunal may make such an order when it is “satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason.” The information relevant to the proceedings will concern the management of GDR’s estate, when he was the subject of a financial management order made under the Guardianship Act 1997. It is likely to involve a consideration of and the disclosure of his family, personal, health and financial information, which can be reasonably viewed as sensitive, private and confidential in nature.

28. In State of NSW (Justice Health) v Dezfouli [2021] NSWADTAP 69 an appeal panel of the ADT considering s 75 of the then Administrative Decisions Tribunal Act 1997 (NSW), which contained similar powers wrote:

“81 It is difficult if not impossible to set out in short form all the matters that, according to the case law just discussed, should be taken into account in deciding whether an order should be made under section 75(2). It must suffice here simply to draw attention to the following points of relevance to our decision in this case: (a) the presumption in favour of open justice; (b) the need for an applicant for a suppression order to establish good grounds for making the order; (c) the comparative breadth of the criterion of ‘desirability’; (d) the important differences between the types of suppression order that may be made – between (for instance) an order (as in this case) prohibiting disclosure of the identity of a participant and an order that a hearing occur in closed session, without notice to a party; (e) the undoubted breadth of the range of purposes that may be served (‘any other reason’); (f) the possibility that the purposes to be served may be a mixture of private and public interests; and (g) the possibility that, although generally speaking the prospect of damage to reputation or ‘embarrassment’ affecting a participant in the proceedings will not provide sufficient grounds for a suppression order, there may be unusual circumstances where this is the principal consideration underlying an order.”

29. In DRJ v Commissioner of Victims Rights [2020] NSWCA 136, Leeming JA (Bell P and Meagher JA agreeing) explained:

“​23 ... consistently with its status as the peak tribunal for external merits and administrative review of much government decision-making, many of NCAT’s determinations are made public. That being so, s 64 of the Civil and Administrative Act 2013 (NSW) confers power to prohibit or restrict the disclosure of applicants’ names whenever the Tribunal is satisfied that it is desirable to do so. Section 64 is significantly different from the regime established by the Court Suppression and Non-publication Orders Act – the “sharp contrast” was noted in Misrachi v The Public Guardian [2019] NSWCA 67 at [13].

​​24. ​It is to be firmly borne in mind that an application for merits review in a State tribunal is quite different from commencing civil proceedings in the Supreme Court. …

30. In proceedings taking place in the Guardianship Division of NCAT, s 65 of the NCAT Act operates to prohibit the publication or broadcasting of the names of persons appearing as witnesses, persons to whom the proceedings relate, and those mentioned in or otherwise involved in the proceedings. In Misrachi v The Public Guardian [2019] NSWCA 67 the Court of Appeal (Bell P and Emmett AJA) observed that, at [65]:

…s 65 of the NCAT Act evinces a legislative sensitivity to the publication or broadcasting of the identity of persons involved in guardianship matters, including the name of any person to whom the proceedings relate.

31. While s 65 does not apply to review proceedings in the Administrative and Equal Opportunity Division of NCAT under the NSWTG Act, the reality is that the disclosure of GDR’s name would result in the disclosure of his confidential information, and the fact that he has been the subject of a financial management order made in the Guardianship Division. This is contrary to that legislative sensitivity. That result is a factor I take into account in determining whether or not to protect GDR’s identity by making an order under s 64.

31. For all the reasons discussed above it is desirable to make an order that disclosure and publication of the applicant’s name be prohibited under s 64 of the Civil and Administrative Tribunal Act 2013; and to direct that the applicant’s name be anonymised for the purpose of these proceedings.

The dismissal proceedings.

33. Section 55(1)(b) pf the NCAT Act provides:

(1) The Tribunal may dismiss at any stage any proceedings before it in any of the following circumstances—

(a) …

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

…

34. In Choi v University of Technology Sydney [2019] NSWCATAD 176 at [37]-[39] I considered the authorities relating to the meaning of the words “frivolous or vexatious or otherwise misconceived or lacking in substance” in s 55(1)(b):

37. The words “frivolous, vexatious, misconceived or lacking in substance” are well recognised legal terms that can be found in a broad spectrum of statutes dealing with summary dismissal in a wide variety of forums. In each case, it is important that the legal and legislative context in which those proceedings arise be taken into consideration.

38. Examples of these were discussed BDK v Department of Education and Communities [2015] NSWCATAP 129 at [59-62] in the context of an appeal against a summary dismissal of anti-discrimination proceedings on the grounds that they were vexatious under s 55 (1)(b) of the CAT Act. The Appeal Panel wrote:

63 In Alchin v Rail Corporation NSW [ 2012] NSWADT 142 Judicial Member Wright SC (as he then was) examined the meaning of the predecessor provision to s 55(1)(b) - s 73(5)(g)(ii) of the Administrative Decisions Tribunal Act 1977. As to the meaning of ‘misconceived’ and ‘lacking in substance’, he said:

25 The expressions used in s 92(1)(a)(i) of the ADA, namely "misconceived" and "lacking in substance" are found not only in the ADA but also in s 73(5)(g) of the ADT Act and similar legislation in other states. With respect to a similar provision found in the Equal Opportunity Act 1984 (Vic), Ormiston JA in State Electricity Commission of Victoria v Rabel [1998] 1 VR 102 at [14] said:

"misconceived" and "lacking in substance" have not, so far as I am aware, been used in this context before though each expression is commonly used by lawyers, the one connoting a misunderstanding of legal principle and the other connoting an untenable proposition of law or fact. If one may discern, in these provisions, an attempt to express the powers of tribunals in non-technical language, then "misconceived" would represent a claim which did "not disclose a cause of action" ..., whereas "lacking in substance" might be seen to represent a claim where the defendant could obtain summary judgment ...

26 This approach of construing "misconceived" as including a misunderstanding of legal principle and "lacking in substance" as encompassing an untenable proposition of fact or law has been applied by the Tribunal in many decisions including, for example, Keene v Director-General, Department of Justice and Attorney-General [2011] NSWADT 59 at [14], McDonald v Central Coast Community Legal Centre [2008] NSWADT 96 at [22] and Stanborough v Woolworths Ltd [2005] NSWADT 203 at [50].

64 In the present case, the Tribunal referred to the frequently-cited explanation of this term by Roden J in Attorney-General v Wentworth (1988) 14 NSWLR 481 at 491:

1. Proceedings are vexatious if they are instituted with the intention of annoying or embarrassing the person against whom they are brought.

2. They are vexatious if they are brought for collateral purposes, and not for the purpose of having the court adjudicate on the issues to which they give rise.

3. They are also properly to be regarded as vexatious if, irrespective of the motive of the litigant, they are so obviously untenable or manifestly groundless as to be utterly hopeless.

65 It will be seen that Roden J’s first category covers conduct that falls within the meaning of ‘frivolous’, while his third category embraces the kind of cases to which the expressions ‘misconceived’ and ‘lacking in substance’ are directed (or, in the case of the UCPR categories, cases not disclosing a reasonable cause of action).

66 In our view a reasonably broad connotation should be given to the meaning of the four categories of conduct identified by s 55(1)(b). The intent of the provision, as we see it, is to seek to give the Tribunal a broad power to deal with abuses of its processes, and for them to be interpreted and applied in a power which captures any kind of abuse of process, that can reasonably be seen to fall within their compass. While ‘misconceived’ and ‘lacking in substance’ may be seen as relatively specific terms, we think a flexible, purposive interpretation can be adopted in determining whether proceedings are ‘frivolous’ or ‘vexatious’, conscious always of the gravity for an applicant or plaintiff of summary dismissal of proceedings.

39 In The Owners – Strata Plan No. 92334 v Piety Capital Pty Ltd [2019] NSWCATCD 22 Principal Member Rosser noted with respect to the word misconceived that:

33 The meaning of “misconceived” in an equivalent provision to s 55(1)(b): s 75(1)(a) of the Victorian Civil and Administrative Tribunal Act 1998 has been considered in a number of cases by the Victorian Civil and Administrative Tribunal (VCAT).

34 For example, in Ballarto Pastoral Pty Ltd v Department of Primary Industries [2006] VCAT 478, VCAT stated at [32] that “misconceived” in the context of s 75(1)(a) means “obviously untenable or groundless .... or means that the applicant has brought an incorrect type of application”. In Kyriakidis v State of Victoria (Human Rights List) [2014] VCAT 1039 (21 August 2014), VCAT characterised as misconceived an application in which the complaint as articulated was not capable as a matter of law of enlivening VCAT’s power to make the order sought. This conclusion was also reached in Keogh v Higgins (Civil Claims) [2014] VCAT 1256 (3 October 2014).

The Trustee’s submissions.

35. In summary the Trustee submits that the Tribunal should dismiss GDR’s administrative review application because it is “otiose” and “futile”. In plain words, this means that it will serve no practical purpose.

36. This is said to be so because at the time GDR made the application to the Tribunal, and now, there is no financial management order in place for GDR’s estate concerning which the Trustee (and the Tribunal in its place) has power to make a decision under the NSWTG Act. The Trustee says that as a result the application is futile.

37. The Trustee relies on the decision of Senior Member Booby (as she then was) in BNI v NSW Trustee and Guardian [2015] NSWCATAD 69 (BNI). In 2006 the Supreme Court found that BNI was incapable of managing his estate and that it should be subject to management under the then Protected Estates Act 1983 (NSW) (Repealed). BNI’s estate was committed to the management of the Protective Commissioner. Following the repeal of the Protected Estates Act by the NSWTG Act, the Trustee assumed the responsibilities of the Protective Commissioner.

38. In June 2014 the Supreme Court heard an application by BNI to revoke the financial management order under s 86 of the NSWTG Act. The Court reserved its decision.

39. While the decision was reserved BNI sought the release of certain funds from the Trustee. The Trustee made a decision regarding the release of funds that BNI disagreed with. He sought an internal review of that decision which was unsuccessful. He then made an application for administrative review in the Administrative and Equal Opportunity Division of this Tribunal. That application was heard on 16 December 2014, with the Tribunal reserving its decision.

40. Three days later on 19 December 2014 the Supreme Court published its reserved decision on the revocation application: Re R [2014] NSWSC 1810. It decided that BNI was capable of managing his affairs and that the financial management order should be revoked.

41. The Tribunal then listed BNI’s application for directions and sought submissions form both parties as to whether and how it should proceed. While both parties agreed that it was not possible to make any decision determining the application under s 63 of the Administrative Decisions Review Act 1997 (NSW) (the ADR Act), BNI wanted the hearing to proceed because he had been harmed and so that his grievances could be heard. The Tribunal concluded:

27. It is my view that the decision of the Supreme Court to revoke the financial management order renders the decision of [the Trustee] redundant and consequently any decision that I could make concerning the application to review that decision would be otiose.

28. In any case, it is my view that as the order under which the decision was made has ceased to exist, and as I am required to take into account the current factual situation, the options available under ss63(3) of the Administrative Decisions Review Act 1997 are not applicable. This is because there is now no instrument upon which a decision, whether affirmed, varied or substituted could be based.

29. Section 55 of the Civil and Administrative Tribunal Act 2013 provides that the Tribunal may dismiss proceedings at any stage in the event of a number of circumstances including where the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance.

30. It is my view also that as the management order under which the decision was made no longer exists, the application to review the decision made under that order, whilst appropriately brought, is now without substance.

31. Having decided that I am unable to make any of the orders set out in the Administrative Decisions Review Act 1997 as applicable to determining a review of an administrative decision, and having decided that the application has been rendered without substance by the decision of the Supreme Court, it is my decision that the application ought to be dismissed as being without substance.

GDR’s view.

42. GDR has not directly addressed the Trustee’s submissions beyond saying that he does not have the resources to engage representatives to respond. He has made it clear that he wishes his substantive application to be heard so that he can air his grievances against both his financial manager and the Trustee.

Consideration.

43. The order made by the Appeal Panel on 23 October 2015 confirming the appointment of the GDR’s son as private financial manager remained in effect until it was revoked from 16 January 2024. It was operative when the financial manager sought approval from the NSWTG to sell the fire damaged property, when the financial manager signed the contract for the sale of the property on 13 December 2023, and when the NSWTG accepted GDR’s late request for internal review and affirmed the decision to sell on 11 January 2024.

44. Section 25M of the Guardianship Act provides that a financial manager is required to exercise the powers of a financial manager in accordance with the directions and authorities referred to in that section. This included with respect to the sale of GDR’s property.

45. Section 85 of the NSWTG Act provides that “management of the estate of a managed person under this Act is terminated if the order that the estate be subject to management is revoked.” When the financial management order was revoked by the Guardianship Division, with effect from 16 January 2024, management of GDR’s estate was terminated.

46. Part 4.5 of the NSWTG Act is concerned with the Management of Estates. Division 2 of that Part (sections 63 to 70) provides for the management of estates by persons other than the Trustee.

47. Sections 64 provides the Trustee with the power to make “such orders as it thinks fit in relation to the administration and management of the estates of managed persons”: s 64(1). This includes “authorising, directing and enforcing the exercise of the functions of managers”: s 64(2). Section 65(2) gives the Trustee power to authorise the sale of property to raise money for specified purposes associated with the managed person: see s 64(1) and (3). The decision to authorise the private manager to sell the property was made by the NSWTG under this provision, as was the decision on internal review decision.

48. Section 70 is concerned with administrative review of decisions. It provides:

(1) Each of the following persons may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of a decision by the NSW Trustee under this Part in relation to the functions of a person appointed as a manager—

(a) the person appointed as manager,

(b) any other person who, in the opinion of the Civil and Administrative Tribunal, has a genuine interest in the matter to which the NSW Trustee’s decision relates.

(2) Subsection (1) does not apply if the decision by the NSW Trustee was made in accordance with a direction given by the Supreme Court to the NSW Trustee.

49. That section, together with s 9 of the ADR Act and s 30 of the NCAT Act, operate to confer administrative review jurisdiction on NCAT with respect to the decision to authorise the sale of the property. The Trustee conceded that the decision is a reviewable decision and that GDR is an affected person.

50. When undertaking an administrative review, the Tribunal stands in the shoes of the administrator (the Trustee) and makes the decision again in the light of the law and the evidence as it stands at the time of review: Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409. Section 63 of the ADR Act provides:

(1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following:

(a) any relevant factual material,

(b) any applicable written or unwritten law.

(2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision.

(3) In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide:

(a) to affirm the administratively reviewable decision, or

(b) to vary the administratively reviewable decision, or

(c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or

(d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.

51. When GDR filed the application on 22 January 2024 the financial management order had been revoked with effect from 16 January 2024, and management of the estate terminated by operation of law (i.e. by s 85 of the NSWTG Act).

52. From the time management of GDR’s estate was “terminated”, the Trustee (and the Tribunal on review) had no power to make any decision authorised by Division 2 of Part 4.5 of the NSWTG Act about the estate’s management. This is so because s 63 of the NSWTG Act provides with respect to Division 2 of Part 4.5:

This Division applies in respect of the estate of a managed person for whom a manager (other than the NSW Trustee) has been appointed, whether under this Act or under section 25M of the Guardianship Act 1987.

53. As there was no longer an order appointing a manager of GDR’s estate, Division 2 of Part 4.5 no longer applied and the management of the estate was terminated. GDR was no longer a managed person and was able to make his own decisions regarding his estate. The Guardianship Division ordered that upon revocation of the financial management order the manager was to “pay or hand over the estate” to GDR.

54. The internal review decision which GDR seeks to review is “a decision of the Trustee under” Part 4.5 of the NSWTG Act, “in relation to the functions of a person appointed as a manager.” It is, therefore, a decision about which an interested person (such as GDR) may apply to NCAT “for an administrative review under the Administrative Decisions Review Act 1997”: see s 70. This is to be contrasted with the situation in CCP v NSW Trustee and Guardian [2015] NSWCATAD 256 (CCP) where the Trustee made a decision after management by the Trustee had terminated. There, the Tribunal found that the decision was not made under the NSWTG Act as management had ceased, and that the Tribunal therefore had no jurisdiction: see CCP at [44].

55. The revocation of the financial management order, however, renders the Tribunal powerless to make any meaningful orders on review. In this regard, I agree with the decision in BNI. In my opinion, the revocation of the financial management order will result in the Tribunal being unable to make any orders under s 63 of the ADR Act when it hears the application because the estate is no longer under management. For the Tribunal to make an order under s 63 the estate must still be under management.

56. In reaching that conclusion, I do not doubt that the decision which GDR seeks to review has had real consequences for him, as a contract to sell the property was executed by the financial manager before the financial management order was revoked. The decision to sell did not “cease to exist” as suggested in BNI, at [28], as a result of the revocation order. GDR was left to deal with its consequences when he resumed management of his own affairs.

57. Nonetheless, I am satisfied that the application can have no practical effect if allowed to proceed. The application it otiose and has no utility. While I understand that GDR is anxious to have a forum in which to investigate and air his claims of negligence, mismanagement and oppression by the Trustee, an administrative review at NCAT is not the correct forum.

58. I will dismiss the application under s 55(1)(b) of the NCAT Act on the grounds that it is misconceived and lacking in substance.

Orders.

59. The Tribunal makes the following orders:

1. A hearing with respect to the applicant’s request for confidentiality orders and the respondent’s application for summary dismissal is dispensed with.

2. The disclosure and publication of the applicant’s name is prohibited under s 64 of the Civil and Administrative Tribunal Act 2013.

3. The applicant’s name shall be anonymised for the purpose of these proceedings.

4. The application for administrative review is dismissed under s 55(1)(b) of the Civil and Administrative Tribunal Act 2013 on the grounds that it is misconceived and lacking in substance.

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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: 30 July 2024