KV v Protective Commissioner

[2004] NSWADTAP 29

Appeal Panel - External

CITATION:	KV v Protective Commissioner & Ors [2004] NSWADTAP 29
PARTIES:	APPELLANT KV FIRST RESPONDENT Protective Commissioner SECOND RESPONDENT KW THIRD RESPONDENT KX FOURTH RESPONDENT KY FIFTH RESPONDNET KZ SIXTH RESPONDENT Guardianship Tribunal
FILE NUMBER:	048004
HEARING DATES:	24/06/2004
SUBMISSIONS CLOSED:	06/24/2004
DATE OF DECISION:	07/14/2004
DECISION UNDER APPEAL:	Guardianship Tribunal 2004/217
BEFORE:	Hennessy N - Magistrate (Deputy President); Britton A - Judicial Member; Wunsch A - Non Judical Member
CATCHWORDS:	Urgent Interlocutory Order
MATTER FOR DECISION:	Preliminary matter
FILE NUMBER UNDER APPEAL:	C/28176
DATE OF DECISION UNDER APPEAL:	04/02/2004
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997
CASES CITED:	Virtu v The Director of New South Wales Fisheries 2000 NSW ADT AP 25
REPRESENTATION:	APPELLANT No Appearance FIRST RESPONDENT T Tunbridge, solicitor SECOND RESPONDENT In person THIRD RESPONDENT No Appearance FOURTH RESPONDENT No Appearance FIFTH RESPONDENT J Coates, solicitor SIXTH RESPONDENT E Cho, legal officer
ORDERS:	DATE OF ORDERS: 24 June 2004 Application for stay refused.

Introduction

1 On 24 June 2004, the Appeal Panel gave oral reasons for refusing to stay a decision of the Guardianship Tribunal. The appellant did not appear at 9 am when the matter was called. The Registry phoned him and he advised that he was running late and that it would be about an hour before he would reach the Tribunal. In view of the fact that all parties who intended to appear were present and ready to proceed, we decided to hear the application in the absence of the appellant. The appellant had still not arrived at about 10.15 am when the hearing had concluded. This decision elaborates on the oral reasons given by the Appeal Panel on that day.

2 KV, the appellant, is the son of KZ. KZ is currently residing in a nursing home. On 2 April 2004, the Guardianship Tribunal decided to commit the management of KZ’s financial affairs to the Protective Commissioner. KV appealed to the Administrative Decisions Tribunal against that decision and sought a stay of its operation. The effect of the stay would be to re-instate the status quo prior to the making of the financial management order until the substantive appeal had been determined. Prior to that time KV held a power of attorney in relation to his mother’s affairs.

Jurisdiction

3 The source of power for the Appeal Panel to stay the Guardianship Tribunal’s order comes from s118B of the Administrative Decisions Tribunal Act 1997 (ADT Act). Section 118B(4) 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.

4 The brief factual situation is that KZ is living in a nursing home and her son, KV, is living in her home rent free. A bond money of some $35,000 has not been paid to the nursing home and interest is payable on that amount. KZ’s home is her only significant asset.

5 Mr Tunbridge for the Protective Commissioner (the Commissioner) told the Appeal Panel that the Commissioner is in the process of obtaining a sales and leasing report in relation to the home. That report, and the options in relation to leasing or selling the home, would be discussed with all members of the family before any final decision was made.

Legal principles

6 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 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 [emphasis added].

(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. (Emphasis added)

7 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 we should take 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 we are satisfied that a stay is necessary to secure the effectiveness of the determination, we would then go on to determine whether a stay was 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.

Secure the effectiveness of the determination

8 While it is unlikely that the property would be leased or sold prior to the hearing on 10 August 2004, we are conscious that that is a possibility and we are aware that if the home was sold, that would be an irreversible decision on the part of the Commissioner. It is apparent that a stay would be necessary to secure the effectiveness of the determination if the home was sold prior to the hearing.

Relevant considerations

9 Having found the possibility of irreparable loss or harm, we must now look at the interests of KZ and any other person whose interests may be affected by the Appeal Panel’s decision. The interests of KZ must be given paramount consideration, although the interests of the family members are also relevant. As Mr Tunbridge correctly pointed out, the fact that KV is living in his mother’s home rent free raises the possibility of a conflict of interest if his power of attorney is re-activated. Given the fact that KZ has lived in a nursing home for some two years, that there is money owing to the nursing home and that the likelihood of her ever returning to live in the house is remote, it would be in KZ’s best interest that some income be derived from her property, either through lease or sale, to enable her to meet her payments owing to the nursing home.

10 In our view the public interest in this matter largely merges with the interests of KZ and we cannot identify any particular additional public interest. Having taken into account the competing interests of the parties and the balance of convenience we refuse to grant the stay.