J v Public Guardian & Anor

[2007] NSWADTAP 21

Appeal Panel - External

CITATION:	J v Public Guardian & Anor [2007] NSWADTAP 21
PARTIES:	APPLICANT J FIRST RESPONDENT Public Guardian SECOND RESPONDENT Protective Commissioner THIRD RESPONDENT Margaret Scott FOURTH RESPONDENT K FIFTH RESPONDENT L SIXTH RESPONDENT Guardianship Tribunal
FILE NUMBER:	078002
HEARING DATES:	9 March 2007
SUBMISSIONS CLOSED:	9 March 2007
EXTEMPORE DECISION DATE:	9 March 2007
DATE OF DECISION:	19 April 2007
BEFORE:	Hennessy N - Magistrate (Deputy President)
CATCHWORDS:	Urgent Interlocutory Order
MATTER FOR DECISION:	Preliminary matter
FILE NUMBER UNDER APPEAL:	2006/7212, 2006/7525, 2006/7806
DATE OF DECISION UNDER APPEAL:	01/29/2007
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Guardianship Act 1987
CASES CITED:	Virtu v The Director of New South Wales Fisheries 2000 NSW ADT AP 25 Williamson v The Director-General of the Department of Transport 2000 NSW ADT 16
REPRESENTATION:	APPELLANT In person FIRST RESPONDENT No appearance SECOND RESPONDENT No appearance THIRD RESPONDENT No appearance FOURTH RESPONDENT No appearance FIFTH RESPONDENT No appearance SIXTH RESPONDENT E Cho, solicitor
ORDERS:	The decision of the Guardianship Tribunal that the estate of L be subject to management under the provisions of the Protected Estates Act 1983 and that the management of the estate be committed to the Protective Commissioner is stayed pending further order of the Appeal Panel.

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

1 On 30 April 2007 I gave short oral reasons for staying a decision of the Guardianship Tribunal appointing the Protective Commissioner as the financial manager of L’s estate. A request has been made for written reasons for that decision pursuant to s 89(3) of the Administrative Decisions Tribunal Act 1997 (ADT Act). Written reasons are provided below.

2 L is an 86 year old woman who has been diagnosed with Alzheimer’s disease. She has lived in a nursing home since November 2006. Prior to that she had lived with her son, J, for many years in a home apparently owned by L. The Guardianship Tribunal received applications for financial management from a social worker at Wyong Hospital, from L’s niece and from L’s son, J. The Guardianship Tribunal was satisfied that L was not capable of managing her affairs and that there was a need for another person to manage her affairs on her behalf. The Tribunal was also satisfied that it was in L’s best interests for a financial management order to be made. J nominated himself to be his mother’s financial manager. L’s niece nominated herself and a nephew of L to be joint financial managers. In reaching its decision to appoint the Protective Commissioner as L’s financial manager, rather than J, the Tribunal said that:

Although he [J] and his mother’s affairs have been intertwined for many years, [J] did not appear to appreciate that in [L’s] changed circumstances, decisions had to be made in relation to her financial affairs that were solely in her best interests. The Tribunal was also not satisfied that [J] would be able to communicate effectively with other family members about [L’s] affairs if he were appointed financial manager.
3 J appealed against the Guardianship Tribunal’s decision and applied for a stay of the decision pending determination of the appeal by the Appeal Panel.

Legislative provisions

4 Section 118B(4) of the ADT Act implies that the Appeal Panel may make an order staying the operation of an appealable decision. That provision states that:

“Subject to any interlocutory order made by the Appeal Panel, an external appeal does not affect the operation of the appealable decision or prevent the taking of action to implement the decision.”
5 Section 116 of the ADT Act contains a similar provision to s 118B except that it relates to internal appeals. The Appeal Panel of this Tribunal interpreted s 116 in Virtu v The Director of New South Wales Fisheries 2000 NSW ADT AP 25 at [3], saying that the considerations that seemed to be appropriate to address are broadly similar to those that the Tribunal would be called upon to address at first instance, and are referred to in section 60 of the ADT Act . Section 60 states that:
(1) Subject to this section, an application to the Tribunal for a review of a reviewable decision does not affect the operation of the decision under review or prevent the taking of action to implement that decision.

(2) On the application of any party to proceedings for an application for a review of a reviewable decision, the Tribunal may make such orders staying or otherwise affecting the operation of the decision under review as it considers appropriate to secure the effectiveness of the determination of the application.

(3) The Tribunal may make an order under this section only if it considers that it is desirable to do so after taking into account:

(a) the interests of any persons who may be affected by the determination of the application, and

(b) any submission made by or on behalf of the administrator who made the decision to which the application relates, and

(c) the public interest.

(4) While an order is in force under this section (including an order that has previously been varied on one or more occasions under this subsection), the Tribunal may, on application by a party to the proceedings, vary or revoke the order by another order.
6 Despite the fact that s 60 relates to the review of a reviewable decision, the principles in that provision, together with the common law principles in relation to grounds for granting a stay, provide useful guidance to the approach to be taken in this matter. At common law the Tribunal must consider the balance of convenience and the competing rights of the parties. Section 60 provides that the Tribunal should only stay the decision if it considers it appropriate to “secure the effectiveness of the determination of the application.” That phrase has been interpreted by Judicial Member Rice in Williamson v The Director-General of the Department of Transport 2000 NSW ADT 16, to mean, basically, that a stay would not be granted unless there was some kind of irreparable loss or harm that would be caused in the interim, that could not be rectified by the Tribunal, or in this case, the Appeal Panel through a final determination. If I am satisfied that a stay is necessary to secure the effectiveness of the determination, I will go on to determine whether a stay is in the interests of any person whose interests might be affected by the determination, any submissions made by the parties and the public interest, if any.

7 If the Protective Commissioner manages L’s estate until the determination of the appeal, L will have to pay fees for the administration of her estate. That is a loss which she would not incur if the status quo is restored and for which she will not be compensated even if the appeal is successful.

8 It is the welfare and interests of L which must be given paramount consideration: Guardianship Act 1987, s 4(a). There is no public interest separate from L’s interest in this case. The social worker and L’s niece, both of whom applied to the Guardianship Tribunal for a financial management order, asserted that J has access to his mother’s pension and that L’s finances were at risk. I understand that the pension is now being paid directly to L at the nursing home. The Guardianship Tribunal expressed concern that L’s credit cards were being used to pay household bills and other expenses that J had been unable to meet since his mother had entered the nursing home. J was repaying the minimum amounts on those cards as they fell due. Despite this concern there was no evidence that J was financially exploiting his mother or that he was doing anything other than spending money on the upkeep of her home. I appreciate that J is living in that home rent free at the moment. That is a situation that will obviously have to be reviewed, however J and his mother have lived together for a long time and their finances have been intertwined. I am satisfied that the status quo should be maintained pending determination of the appeal. That should only take a relatively short period of time.

Order

The decision of the Guardianship Tribunal that the estate of L be subject to management under the provisions of the Protected Estates Act 1983 and that the management of the estate be committed to the Protective Commissioner is stayed pending further order of the Appeal Panel.