In v Protective Commissioner (GD)

[2004] NSWADTAP 9

Appeal Panel - Internal

CITATION:	IN -v- Protective Commissioner (GD) [2004] NSWADTAP 9
PARTIES:	APPELLANT IN RESPONDENT Protective Commissioner
FILE NUMBER:	039084
HEARING DATES:	12/03/2004
SUBMISSIONS CLOSED:	03/12/2004
DATE OF DECISION:	03/22/2004
DECISION UNDER APPEAL:	IN -v- Protective Commissioner (No. 2) [2003] NSWADT 238
BEFORE:	O'Connor K - DCJ (President); Millar J - Judicial Member; Whaite A - Member
CATCHWORDS:	no question of law identified
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	033301
DATE OF DECISION UNDER APPEAL:	11/04/2003
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Protected Estates Act
CASES CITED:	IN v Protective Commissioner (No 2) [2003] NSWADT 238 R v P [2004] NSWCA –
REPRESENTATION:	APPELLANT In person RESPONDENT C Phang, legal officer
ORDERS:	Appeal dismissed

REASONS FOR DECISION

1 The appellant is a protected person under the Protected Estates Act 1983 (Protected Estates Act). Her financial affairs are the subject of a financial management order made by the Supreme Court in September 2003 appointing the Protective Commissioner as her manager. The Protective Commissioner has in recent months been her tutor in District Court proceedings. They were commenced in 1986 for damages arising from a motor car accident that occurred in 1979 in which she was injured. There was a judgment in her favour in 1990 in relation to liability. It was not until on or about 12 November 2003, when the case settled, that the question of assessment of damages was resolved. The appellant is of the view that the appropriate level of damages for the injury she suffered is about $2 million, when account is taken of the loss of future earnings that she considers is attributable to the accident. The case was settled for about $400,000 against which there are to be substantial deductions for legal costs and disbursements. She is of the view that she has not been represented adequately.

2 On 23 October 2003 the appellant applied to the Tribunal for review of two administrative decisions of the Protective Commissioner: the first being his refusal of her request that her solicitors (P and Co) cease to act in the District Court proceedings for her; the second being his refusal of her request that certain medical reports not be served on the defendant in those proceedings. The Tribunal dealt with the matter urgently, heard the case on 30 October 2003 and delivered its decision refusing the appellant’s application and affirming the decisions of the Protective Commissioner on 4 November 2003: IN v Protective Commissioner (No 2) [2003] NSWADT 238. As has been indicated already, a few days later terms of settlement were agreed between the defendant and the Protective Commissioner on behalf of the appellant.

3 The appellant’s appeal to the Appeal Panel was lodged on 24 December 2003, and came on for hearing on 12 March 2004. A few days earlier on 9 March 2004 the Court of Appeal delivered its decision in an appeal brought by the appellant. She had appealed against the order made by Barrett J of the Supreme Court on 9 September 2003 declaring that she was incapable of managing her own affairs and ordering that her estate be subject to management. The summons which led to these orders had been taken out by Mr P, her solicitor. The Court of Appeal dismissed the appeal: see R v P [2004] NSWCA – (No. 41034 of 2003).

4 The appellant’s criticism of the conduct of her legal representative and the Protective Commissioner relates to their reliance on medical opinions which were of the view that the car accident had exacerbated a pre-existing personality disorder. Her contention is that the accident was entirely responsible for the brain damage from which she now suffers. Further details are given in the decision under appeal. It is not necessary to reiterate them here.

5 Tribunal decisions in relation to applications for review are appealable to the Appeal Panel of the Tribunal: Administrative Decisions Tribunal Act 1997 (Tribunal Act), s 112(1)(b). The right to appeal is a limited one. Section 113(2) provides:

An appeal …:

(a) may be made on any question of law, and

(b) with the leave of the Appeal Panel, may extend to a review of the merits of the appealable decision.

6 In the attachment to her notice of appeal, the appellant set out in some detail her objections to the way in which her case had been handled by her legal representatives over the years. The Court of Appeal noted that in the action she had been represented by at least six firms of solicitors.

7 She submitted that in various ways the Tribunal did not give proper consideration to the Protective Commissioner acting contrary to the intention of the Protected Estates Act. In essence she sought to make again the case that had been unsuccessful before Barrett J and before this Tribunal at first instance.

8 The Protective Commissioner’s reply to the appeal is that no question of law is revealed, and it should be dismissed.

9 At hearing on 12 March 2004, the appellant made lengthy oral submissions referring to the history of her case, and emphasised the unfairness to which she believes she was subject in the use of the medical opinions suggesting exacerbation of pre-existing condition. She also made a number of criticisms of what she considered to be inappropriate conduct towards her by the Protective Commissioner and his officers in handling the settlement negotiations.

10 In our view the submissions did not identify any question as to the validity in law of the reasoning processes of the Tribunal at first instance; or of its procedures. The Tribunal saw its task as determining whether the Protective Commissioner had made the correct and preferable decisions (as to continuing the retainer of P & Co, and as to service of the plaintiff’s medical reports on the defendant), the governing consideration being the best interests of the protected person in the circumstances.

11 Appeal Panels of the Tribunal have consistently endorsed the view that unless an error of law is shown, leave should ordinarily not be given to extend appeals to the merits. In this instance we are not satisfied that any question was raised as to the legal adequacy of the Tribunal’s reasoning or procedures, let alone any error demonstrated.

12 The appellant reiterated before us her concern that her solicitor had not taken adequate steps to find an alternative person to conduct the proceedings on her behalf before turning to the Supreme Court and having the Protective Commissioner appointed. She said she had many relatives and one of them would have been more appropriate. Barrett J dealt with that criticism in his decision, explaining that the solicitor had been of the view that she did not want there to be contact with her relatives because that might have exposed them to the evidence that she had a pre-existing condition affecting her mental state. (In her submissions to the Appeal Panel the appellant referred to her dissatisfaction with subpoenas that had been issued in the course of the proceedings which, as she saw it, sought to trace her medical and mental history back to her childhood.)

13 The Tribunal was satisfied that there was no evidence before it that might support the allegation that P had acted deceptively. The Tribunal referred to the desirability of bringing the litigation to an end, 24 years having then passed since the accident. The Tribunal concluded:

‘23. The medical reports are opinions of experts who have examined IN [the appellant]. The fact that her opinion differs from theirs is not sufficient reason to exclude them from evidence. If the medical reports are not served, IN will have no, or very little, basis for claiming damages for anything other than the physical injuries which she suffered in the accident. The amount she may be entitled to receive will be significantly reduced.’
14 In our view the Tribunal took relevant considerations into account when dealing with this application for review, had proper regard for the best interests of the protected person and took proper account of relevant evidence and other material. We see no reason to disturb the decision.

15 There are three other points. The notice of appeal was filed out of time. The rule is that an appeal must be made within 28 days after a party has been furnished with written reasons or ‘within such further time as the Appeal Panel may allow’: Tribunal Act, s 113(3). The Protective Commissioner did not press the point that the appeal was out of time.

16 Secondly, the appellant by letter dated and received 9 March 2004 applied for the Appeal Panel hearing to be adjourned. The Appeal Panel directed that this application be dealt with at the hearing listed for 2 pm on 12 March 2004. The appellant was delayed on that day, and the hearing commenced at 2.45pm. The appellant proceeded to make detailed oral submissions. She did not press her application for adjournment, though she made a reference to it in her closing submissions at about 4.15pm. She spoke for almost all of the intervening period. We consider that she had an adequate opportunity to present her case.

17 Finally, we doubt whether the appeal raises any live question. When the matter was before the Tribunal the damages claim had not been finalised. That has now occurred. Even if the appeal had made out a case for setting aside (or otherwise interfering with) the Tribunal’s orders, it is now too late to affect that outcome.