KE v Protective Commissioner (No 2)
[2005] NSWADT 51
•09/10/2004
CITATION: KE v Protective Commissioner (No 2) [2005] NSWADT 51 DIVISION: General Division PARTIES: APPLICANT
KE
RESPONDENT
Protective CommissionerFILE NUMBER: 043013 HEARING DATES: 10/09/2004 SUBMISSIONS CLOSED: 09/10/2004 DATE OF DECISION:
09/10/2004BEFORE: O'Connor K - DCJ (President) APPLICATION: Protected Estates Act - Protective Commissioner - powers as to property - Protective Commissioner - powers as to property MATTER FOR DECISION: Jurisdiction LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Protected Estates Act 1983CASES CITED: KE v Protective Commissioner [2004] NSWADT 59 REPRESENTATION: APPLICANT
A Campbell, counsel
RESPONDENT
T Tunbridge, solicitorORDERS: 1. Decision to sell 1 Miller Street affirmed; 2. Application for review dismissed following Commissioner’s withdrawal of decision to sell 6 Porter Avenue;
(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 Background. As at January 2004, the applicant owned five residential properties in Sydney. Her financial affairs are subject to an order of the Guardianship Tribunal appointing the Protective Commissioner as her financial manager. In order to meet her future needs the Protective Commissioner decided to sell two of the properties. The present application is for review of that decision. The Tribunal in a decision delivered on 11 March 2004 refused the applicant’s application for a stay of the Commissioner’s decision as it related to one of the properties, 1 Miller Street, Petersham. The Tribunal did stay the Commissioner’s decision as it related to the other property, 6 Porter Avenue, Marrickville: KE -v- Protective Commissioner [2004] NSWADT 59. The order made on that occasion was as follows:
2 The sale of 1 Miller Street proceeded, realising $755,000. In light of para [11] of the Tribunal’s decision of 11 March 2004, the Protective Commissioner decided to review his decision as it related to 6 Porter Avenue. The Tribunal had observed:
1. Continue Term 1 of the Order made on 3 February 2004 (i.e. Protective Commissioner’s decision to sell as it relates to 6 Porter Avenue, Marrickville is stayed until further order).
2. The proviso to Term 2 of the Order made on 3 February 2004 is removed and that Term now reads:
3. Adjourn the costs application by the applicant to the relist date.
The application to stay the decision to sell in respect of 1 Miller Street, Petersham is refused.
4. Relist 8 April 2004 at 9.30; both parties by telephone, if they wish.
3 The result was that a delegate of the Commissioner decided by decision dated 3 September 2004 that it was preferable to retain 6 Porter Avenue and sell, instead, another property, 3 Miller Street, Petersham.
‘11 Then what I should do with the balance of the application is simply to list the matter for a telephone conference in, say, three or four weeks’ time as one way of trying to minimise any further costs in the hope that maybe some view can be reached in the meantime as to whether the application is to be pressed or not. In respect of 6 Porter Avenue, it may be that the Protective Commissioner is prepared himself to reconsider that decision in the meantime, in which case if he were to decide not to proceed to sell 6 Porter Avenue, well, then the principal application collapses. There is nothing more for the principal application to deal with.’
4 Jurisdiction. The parties returned to the Tribunal on 10 September 2004. The applicant wished to contest the revised decision. The question arose whether the application for review that had been lodged in relation to the earlier decision (to sell 1 Miller Street and 6 Porter Avenue) continued to provide a vehicle for challenging the merits of the revised decision.
5 The Tribunal ruled that its jurisdiction in respect of the earlier application had been exhausted, and a new application for review would in due course (after the primary decision had been the subject of internal review) be required. The text of the Tribunal’s oral ruling on the day follows (with some minor revisions).
6 Ex Tempore Reasons. The issue that has arisen in the Tribunal today is whether in the following circumstances the application for review in this matter has been dealt with.
7 The application for review put in issue was expressed as follows:
8 The proceedings have continued before the Tribunal on the basis that two properties might be sold, 1 Miller Street and 6 Porter Avenue, Marrickville.
‘A decision to sell the property located at 1 Miller Street, Petersham and to vary the decision of that date to sell the property located at 3 Miller Street, Petersham, by substituting it with a decision to sell the property located at 6 Porter Avenue, Marrickville.’
9 As a result of a view expressed by the Tribunal reflected in para [11] of the reasons for decision of 11 March 2004 the Protective Commissioner reconsidered the decision in respect of 6 Porter Avenue. On 3 September 2004 his delegate made a decision to sell instead 3 Miller Street, Petersham.
10 The difficulty that has arisen relates to the question of whether the original application for review is now being dealt with by virtue of the fact that the sale of 1 Miller Street has proceeded and the decision now made is not to proceed with the sale of 6 Porter Avenue.
11 The complication that affects the case is that the powers that the Protective Commissioner has purported to exercise in making the decision of 3 September 2004 are those contained in s 65 of the Administrative Decisions Tribunal Act 1997 and those powers are triggered by a decision by the Tribunal to remit the decision under review to the administrator for reconsideration.
12 Section 65 provides:
13 The Protective Commissioner has read para [11] of the reasons for decision of the Tribunal as involving an exercise of that power but my view, looking back at those reasons and recalling the matters considered on the occasion of that decision, is that whilst the Commissioner was encouraged to reconsider the decision the Tribunal did not formally remit the matter. It may well have been that had there been an application for such a formal order it would have been made. So the Protective Commissioner has acted on the basis of an assumption that I am sure has been reasonably held but I do not think the precondition that is required for the operation of s 65 was ever put in place, which is a formal remittal of the decision. So in those circumstances I think we are in the unfortunate position that we have not got a decision before us which strictly meets the requirements of s 65.
‘ 65 Power to remit matters to administrator for further consideration
(1) At any stage of proceedings to determine an application for a review of a reviewable decision, the Tribunal may remit the decision to the administrator who made it for reconsideration of the decision by the administrator.
(2) If a decision is so remitted to an administrator, the administrator may reconsider the decision and may:
(a) affirm the decision, or
(b) vary the decision, or
(c) set aside the decision and make a new decision in substitution for the decision set aside.
(3) If the administrator varies the decision:
(a) the application is taken to be an application for review of the decision as varied, and
(b) the person who made the application may either:
(4) If the administrator sets the decision aside and makes a new decision in substitution for the decision set aside:
(i) proceed with the application for review of the decision as varied, or
(ii) withdraw the application.
(a) the application is taken to be an application for review of the new decision, and
(b) the person who made the application may either:
(i) proceed with the application for review of the new decision, or
(ii) withdraw the application.’
14 There has been discussion today as to whether the whole problem could be resolved by the applicant simply amending the application for review to take account of the decision made on 3 September 2004 but Mr Campbell, who has appeared for the applicant, is of the view that his client is unlikely to give any such instructions as the history of instructions has been constantly to resist any sale. He also has made submissions as to the value possibly of being able to obtain an internal review of the new decision.
15 So I think in those circumstances, though the matter may not be free from doubt, that the order that the Tribunal should enter is an order affirming the decision in respect of 1 Miller Street, for the reasons considered in the course of the stay application, and simply noting that the decision to sell 6 Porter Avenue has been rescinded. I should note that there is a costs application by the applicant that is connected with the present application (application number 043013) that remains to be considered.
16 I also note that the new decision is itself an operative decision of the Protective Commissioner, unless it is the subject of an application for review and an application for a stay order which is successful.