KXI

[2023] NSWCATGD 20

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

KXI [2023] NSWCATGD 20

Hearing dates:

28 September 2023

Date of orders:

21 November 2023

Decision date:

21 November 2023

Jurisdiction:

Guardianship Division

Before:

A Britton, Deputy President

Decision:

Pursuant to s 63 of the Civil and Administrative Tribunal Act 2013 (NSW) I direct the registrar to alter the text of the notice of the decision made by the Guardianship Tribunal of NSW on 28 February 2013 and the statement of reasons for that decision, by substituting the name “Peter” with the name “Peta”.

Catchwords:

PRACTICE AND PROCEDURE – power to correct obvious errors in decisions – s 63 of the Civil and Administrative Tribunal Act 2013 (NSW) – NCAT’s power to correct an order made by NSW Guardianship Tribunal, one of NCAT’s predecessor Tribunals – transitional provisions – an order made by the Guardianship Tribunal is taken to be an order made by NCAT – exercise of discretion to correct spelling of the subject person’s name – order made

Legislation Cited:

Civil and Administrative Tribunal Act 2013 (NSW), ss 7(1), 63, 63(3)(e); Sch 1, cls 2-3; Sch 1, cl 8; Sch 1, cl 9(2); Sch 1, cl 9(3)(a); Sch 1, cl 14; Sch 2, cl 12(1); Div 3, sub-div 5, cl 14

Guardianship Act 1987 (NSW), s 25D

Cases Cited:

L Shaddock & Associates Pty Ltd v Parramatta City Council (No 2) [1982] HCA 59; (1982) 151 CLR 590

Texts Cited:

None cited.

Category:

Principal judgment

Parties:

002: Review or Revoke Financial Management Order

KXI aka Peter Smith (the person)
NSW Trustee and Guardian (appointed financial manager)

Representation:

Nil.

File Number(s):

NCAT 2012/00404437

Publication restriction:

Pursuant to s 65 of the Civil and Administrative Tribunal Act 2013 (NSW), a person must not without the consent of the Tribunal, publish or broadcast the name of any person who appears as a witness in these proceedings, to whom these proceedings relate, or is mentioned or otherwise involved in the proceedings. 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. The provision of these reasons (with persons identified) is not intended to be a publication or broadcasting of an official report of the proceedings.

REASONS FOR DECISION

1. The NSW Trustee and Guardian (the Trustee) requests the NSW Civil and Administrative Tribunal (NCAT) to correct a purported error contained in the notice of a decision made by the (then) Guardianship Tribunal of NSW and the statement of reasons for that decision. In that decision, made on 28 February 2013, the Guardianship Tribunal made a financial management order in respect of “Mr Peter Smith” under the Guardianship Act 1987 (NSW) and committed the management of Mr Smith’s estate to the Trustee (the 2013 Decision). Peter Smith is a fictitious name given so as not to disclose the identity of the person the subject of the financial management order.

2. In an email to NCAT sent on 30 August 2023, the Trustee said that it had discovered an error in the text of the notice of the 2013 Decision. That notice records Mr Smith’s first name as “Peter”. On the other hand, Mr Smith’s birth certificate records his first name as “Peta”.

3. The issues raised by the Trustee’s request are:

1. whether the power given to NCAT by s 63 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), can be exercised in respect of a decision made by one of NCAT’s predecessors, the Guardianship Tribunal, and

2. if so, whether that power should be exercised.

4. The power conferred by s 63 of the NCAT Act can only be exercised by the member who presided at the subject proceedings, the President of NCAT, or their delegate. The presiding member of the Tribunal which made the 2013 Decision is not a member of NCAT. The President has delegated to me the power conferred by s 63 of the NCAT Act in respect of decisions made by the Guardianship Division: NCAT Act, Sch 2, cl 12(1).

Power to correct errors in decisions of the Tribunal

5. Section 63 of the NCAT Act states

63 Power to correct errors in decisions of Tribunal

(1)    If, after the making of a decision by the Tribunal, the President or the member who presided at the proceedings is satisfied that there is an obvious error in the text of a notice of the decision or a written statement of reasons for the decision, he or she may direct a registrar to alter the text of the notice or statement in accordance with the directions of the President or the member.

(2)    If the text of a notice or statement is so altered, the altered text is taken to be the notice of the Tribunal’s decision or the statement of its reasons, as the case may be, and notice of the alteration is to be given to the parties in the proceedings in such manner as the President or member may direct.

(3)    Examples of obvious errors in the text of a notice of a decision or a statement of reasons for a decision are where—

(a)    there is an obvious clerical or typographical error in the text of the notice or statement, or

(b)    there is an error arising from an accidental slip or omission, or

(c)    there is a defect of form, or

(d)    there is an inconsistency between the stated decision and the stated reasons, or

(e)    there is an inconsistency between the name of a person stated in the text of the notice or statement and the name stated on the person’s birth certificate or other form of identification.

(Emphasis added)

6. Section 63(3)(e) of the NCAT Act was inserted into the NCAT Act by the Civil and Administrative Tribunal Amendment Act 2023 (NSW), Sch 1, cl 8. That provision came into effect on 20 September 2023.

Transitional provisions: NCAT Act

7. The NCAT Act came into force on 1 January 2014. That Act established NCAT on the “establishment day”, 1 January 2014: NCAT Act, s 7(1). In addition, on the same day that Act abolished several “existing tribunals”, including the Guardianship Tribunal: NCAT Act, Sch 1, cl 3.

8. Schedule 1 to the NCAT Act sets out the savings, transitional and other provisions concerning orders made by the previous tribunals. Clause 14 contained in subdivision 5 (Allocation of transitional proceedings and enforcement of existing orders) of Division 3 (Proceedings concerning abolished existing tribunals) states:

14 Orders of existing tribunals

(1)    An existing order of an existing tribunal made under other legislation is taken, on and from the establishment day, to be an order made by NCAT under the corresponding provision of that legislation (as amended by a relevant amendment Act) or this Act (as the case may be).

(2)    This clause is subject to the other provisions of this Schedule.

(3)    In this clause—

existing order of an existing tribunal is an order made by the tribunal before the establishment day, and includes an order that would have come into effect on or after the establishment day.

9. The Guardianship Tribunal as constituted under the Guardianship Act 1987 (NSW) is an “existing tribunal” for the purpose of cl 14, Sch 1 to the NCAT Act: NCAT Act, Sch 1, cl 2.

10. Accordingly, from 1 January 2014 the 2013 Decision is taken to be an order made by NCAT in the exercise of functions allocated to the Guardianship Division.

Did the Guardianship Tribunal have power to amend an obvious error in its decisions?

11. The Trustee contended that while there was no statutory equivalent to s 63 of the NCAT Act which gave the Guardianship Tribunal the power to correct an “obvious error” in its decisions, nonetheless, the Guardianship Tribunal had power to correct such errors under the “common-law slip rule”. In turn, parties to proceedings had a right to request the Guardianship Tribunal to correct such errors. The Trustee contended that as a party to the proceedings in which the 2013 Decision was made, it had a right to apply to the Guardianship Tribunal to correct the 2013 Decision. By cl 9(2) of Sch 1 to the NCAT Act that right was preserved.

12. Clause 9(2) of Sch 1 to the NCAT Act provides that “a person who has an existing unexercised application or appeal right may apply … to NCAT for the exercise of the same functions that could have been exercised by the existing tribunal to which the right relates had the existing tribunal not been abolished”. Clause 9(3)(a) gives NCAT the power to exercise all the functions that the Guardianship Tribunal would have had in relation to the application if it had been made before 1 January 2014.

13. I reject the proposition on which this submission is based: that the Guardianship Tribunal had power to amend “obvious errors” in its decisions. Like NCAT, the Guardianship Tribunal was a creature of statute. Its powers and functions were those conferred or imposed by legislation. Neither its enabling legislation, the Guardianship Act, nor any other Act or statutory provision gave the Guardianship Tribunal power to correct “obvious errors” in its decisions. While a court has inherent jurisdiction “to correct an error in a decree or order arising from a slip or accidental omission" (see for example, L Shaddock & Associates Pty Ltd v Parramatta City Council (No 2) [1982] HCA 59; (1982) 151 CLR 590 at [6]), the Guardianship Tribunal was not a court. Unless given the power to do so by the legislature, a tribunal does not have the power to correct “obvious errors” in its decisions.

14. Self-evidently, as the Guardianship Tribunal did not have power to correct the purported error in the 2013 Decision, the Trustee did not have a right to request the Guardianship Tribunal to make that correction. Therefore, the question of whether cl 9(2) of Sch 1 to the NCAT Act operated to preserve that purported right does not arise.

15. Nonetheless, the Trustee does not have to rely on cl 9(2) of Sch 1 to the NCAT Act, to achieve the outcome it seeks. The power conferred by s 63 of the NCAT Act can be exercised in respect of the 2013 Decision, notwithstanding that decision was made by the Guardianship Tribunal. As explained above, from 1 January 2014 the 2013 Decision is taken to be an order made by NCAT: NCAT Act, Sch 1, cl 14. Section 63 applies to all NCAT decisions, including those made by the Guardianship Tribunal.

Is there an obvious error in the text of the 2013 Decision and the written statement of reasons for that decision?

16. To exercise the power conferred by s 63 of the NCAT Act, I must be satisfied that there is an “obvious error” in the text of the 2013 Decision and/or the written statement of reasons for that decision. The “obvious error” identified by the Trustee is of the type described in s 63(3)(e) of the NCAT Act, namely an inconsistency between Mr Smith’s first name stated in the text of the notice of the 2013 Decision and the statement of reasons for that decision and Mr Smith’s first name as stated on his birth certificate. In support of that contention, the Trustee points to a certified copy of a birth certificate issued on 19 April 2000 by the Registrar of NSW Births, Deaths and Marriages, which records Mr Smith’s first name as “Peta”.

17. In deciding whether there is an obvious error in the 2013 Decision and its accompanying statement of reasons, I have considered whether the birth certificate provided to NCAT by the Trustee is the birth certificate of the person the subject of the 2013 Decision, Mr Smith. I am satisfied that the person the subject of the 2013 Decision is the same person as the person named in the subject birth certificate for these reasons:

1. the surname recorded in the subject birth certificate, Smith, corresponds with the surname recorded in the 2013 Decision;

2. the statement of reasons for the 2013 Decision records Mr Smith as being 40 years of age, which corresponds with his date of birth on the subject birth certificate;

3. the initiating application made to the Guardianship Tribunal records Mr Smith’s date of birth as [details omitted], which corresponds with the date of birth recorded in the subject birth certificate.

18. I am satisfied as contended by the Trustee that the 2013 Decision and the statement of reasons for that decision contains an obvious error within the meaning of s 63(3)(e) of the NCAT Act, namely Mr Smith’s first name is stated to be “Peter” not “Peta” as recorded in Mr Smith’s birth certificate.

Should the discretion to direct a registrar to alter the text of the 2013 Decision and the written statement of reasons for that decision be exercised?

19. The Trustee reported that it discovered the inconsistency between Mr Smith’s birth certificate and the orders made by the Guardianship Tribunal in the course reviewing its files.

20. Making the requested correction will enable the Trustee to discharge its duty to administer Mr Smith’s estate. It is a matter of public record that the Trustee and private managers appointed under the Guardianship Act can experience difficulties in dealing with financial and other institutions on behalf of a “protected person” (Guardianship Act, s 25D) where, as here, there is an inconsistency between the stated name on the protected person’s birth certificate, or other form of identification, and an order made by NCAT or the Guardianship Tribunal. It is not in the interests of a protected person, that a person appointed under the Guardianship Act to manage their financial affairs, be hamstrung in administering the protected person’s estate because of an obvious error in the notice of the decision making that appointment. It is appropriate that the power to correct the 2013 Decision be exercised.

Orders

1. I direct the registrar to alter the text of the notice of the decision made by the Guardianship Tribunal of NSW on 28 February 2013 and the statement of reasons for that decision, by substituting the name “Peter” with the name “Peta”.

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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: 14 December 2023