Morgan v Public Trustee and Guardian (Civil Dispute) - [2021] ACAT 102

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

MORGAN v PUBLIC TRUSTEE AND GUARDIAN (Civil Dispute) [2021] ACAT 102

XD 590/2021
Catchwords: CIVIL DISPUTE – where property was jointly owned by two siblings – where one sibling relinquished their premises and consented to the removal of contents in the premises – whether ownership of furniture was established and intention to recover the furniture was clearly communicated – whether the Public Trustee and Guardian is a corporation and therefore required to exercise a general duty of care and diligence – Public Trustee and Guardian found to be a corporate entity and thus liable for any consequent loss or damage
Legislation cited: Corporations Act 2001 (Cth) s 180
Guardianship and Management of Property Act 1991
Public Trustee and Guardian Act 1985 ss 8, 12

Tribunal:Senior Member Prof T Foley

Date of Orders:  25 October 2021
Date of Reasons for Decision:      25 October 2021
AUSTRALIAN CAPITAL TERRITORY          )
CIVIL & ADMINISTRATIVE TRIBUNAL     )          XD 590/2021
BETWEEN:
SARAH MORGAN
Applicant

AND:
PUBLIC TRUSTEE AND GUARDIAN
Respondent

TRIBUNAL:Senior Member Prof T Foley

DATE:25 October 2021

ORDER

The Tribunal orders that:

The respondent pay to the applicant the sum of $545 within 28 days.
………………………………..

Senior Member Prof T Foley

REASONS FOR DECISION

This matter was listed for hearing on 24 September 2021 before the Tribunal by telephone. The applicant appeared on her own behalf. The respondent was represented by Ms G Belcher of the ACT Government Solicitor. The decision was reserved and the following is a statement of reasons for the Tribunal’s decision.
The respondent manages the applicant’s sister Nadine’s[1] property and financial affairs and has done so through a series of ACAT orders since at least 2016. The applicant applied for appointment as Nadine’s guardian but that application was dismissed by the tribunal on 15 September 2020.
[1] The name of the applicant and her sister have been changed to protect the identity of the person subject to the guardianship and financial management order.
On 19 June 2020 Nadine advised the respondent that she wished to surrender her allocated Housing ACT property at Belconnen. She had not resided in the premises for some time. She also advised the respondent that she did not want certain items of furniture remaining there. The applicant says those items of furniture belonged to her and she seeks their return or compensation for their loss.
The applicant filed an amended witness statement on 27 August 2021 which was admitted into evidence. She also gave oral evidence and was subject to cross examination.
The respondent filed witness statements of Andrew Taylor, Public Trustee and Guardian dated 10 September 2021, Robyn Milligan, Trust Officer dated 13 September 2021 and Peta Duggan, Team Leader Financial Management Services Unit dated 14 September 2021. Each statement was admitted into evidence. Each witness gave oral evidence and was available for cross examination. The respondent also filed a timeline and various bundles of photographs which were of assistance to the Tribunal. I summarise the evidence of each witness below and indicate findings I have reached with respect to certain aspects of that evidence.
The applicant’s case in simple form is that the respondent failed to make reasonable efforts to contact her, and did not respond to her attempts to contact them, before her sister’s home was surrendered to ACT Housing on 13 October 2020 and the furniture was removed and apparently destroyed. Her application must be seen in the context that she did not think it was in her sister’s best interest to relinquish the premises and that she wished to have a say into the management of her sister’s affairs, both personal and financial.[2]
[2] Applicant’s witness statement dated 27 August 2021 at [24]
Referring to the timeline, the applicant admits the respondent contacted her about the items of furniture by phone on 30 June 2020. She says that phone conversation was very short. She first spoke to Robyn Milligan and was then, at her (the applicant’s) request, transferred to Peta Duggan as team leader. She denied that she said during that conversation words to the effect that “she did not own any of the contents”. She denies she said she did not want any of the items. She says at paragraph 7 of her statement, “I clearly stated that [Nadine] and I both invested in the property, and it is jointly owned”. She says she asked for a return phone call and this was promised. She says she never received the call.
The applicant admits at paragraph 12 of her statement, that she received a hand delivered letter from the respondent dated 7 July 2020 which repeats the assertion “we confirm your advice that the items in the property do not belong to you or any other family members”. The applicant says she did not give the respondent this advice.
The applicant says she then made many attempts to contact the respondent by phone. She says these calls were directed to the Financial Team as she understood it was this unit that had instructed ACT Housing to remove the furniture.[3] She provided a log of calls from her mobile and says she can identify thirteen calls from that log that went unanswered or were not responded to.[4]
[3] Applicant’s witness statement dated 27 August 2021 at [62]
[4] Applicant’s witness statement dated 27 August 2021, attachment N
The applicant says she consulted Legal Aid ACT and that its Disability Justice Officer (who was not a lawyer) emailed the respondent on her behalf on 15 July 2020. The email asked for contact from the respondent and delay in the removal of the furniture items from the premises given that the deadline set by the respondent in their letter of 7 July 2020 was 16 July 2020.
The applicant says she was not contacted by the respondent following this email. She was however shown a reply email from the respondent dated 17 July 2020.[5] The applicant says she subsequently applied to the tribunal for appointment as guardian and manager of Nadine’s property. She says this was partly motivated by a desire to prevent the premises being relinquished.
[5] Applicant’s witness statement dated 27 August 2021 at [27]
The applicant says she had contact with Helen Connolly from the respondent on or about 25 July 2020 about “the guardianship application and issues at the property”.[6]
[6] Applicant’s witness statement dated 27 August 2021 at [28]
The applicant says she had no further contact from the respondent until after 15 September 2020, the date on which the tribunal dismissed her guardianship application. Following this the applicant says she visited her sister’s premises and found the items of furniture had been removed.[7]
[7] Applicant’s witness statement dated 27 August 2021 at [29]-[30]
On 2 November 2020 the applicant says she was contacted by Helen Connolly.[8] She says she complained to Ms Connolly that she had had no communication since July 2020 regarding the items of furniture. She says a return phone call was promised, but she never received the call.
[8] Applicant’s witness statement dated 27 August 2021 at [38]-[40]
The applicant understands the respondent surrendered the key to the premises to ACT Housing on 13 October 2020. A photograph from ACT Housing timestamped 22 October 2020 shows the items in a rubbish skip.[9] She understands an Authority to Dispose of Abandoned Goods was issued on 13 November 2020 by the respondent on behalf of Nadine.
[9] Respondent’s timeline dated 14 September 2021, attachment A
The applicant says it was poor administration by the respondent that meant she was unable to retrieve the furniture items before their disposal.[10] Once the decision to relinquish the premises could not be reversed (her first wish) she very much wanted the return of the items of furniture which she had purchased jointly with her sister (70% the applicant, 30% Nadine).
[10] Applicant’s witness statement dated 27 August 2021 at [58]
The applicant claims the replacement values of items of furniture and effects are:[11]
[11] Applicant’s witness statement dated 27 August 2021 at [60]
(a)Westinghouse upside down fridge $1,749
(b)Bunnings dining setting approximately $349
(c)Single bed/bed coverings/linen/doona $500
(d)Towels $80
(e)Cutlery/saucepans/crockery/linen/kitchen items $50
(f)Microwave $49
(g)Toiletries approximately $50
(h)Curtains and tracks $118 x 6
These total $2,945.
In cross examination the applicant conceded or confirmed to the extent that her evidence gave rise to inconsistency:
(a)All of the thirteen calls to the respondent were made through others. None of these calls record the respondent’s phone number. As far as I can determine none of the ongoing phone numbers on attachment N are to the respondent’s public number 6207 9800.
(b)She has had no contact whatsoever with her sister Nadine since May 2019. She has had no role in the management of her sister’s personal or financial affairs including her NDIS plan and payment of utilities since that time. I am satisfied that Nadine did not then, and does not now, want any contact whatsoever from the applicant. I accept that up till now the applicant will not accept this.
(c)Her own home is only a short walking distance to the Belconnen premises Nadine vacated. The applicant went to the premises, often on a daily basis, to check on mail and could see into the house through the windows. The proximity appears to be as close as the same street. I am satisfied this proximity may well explain why Nadine wished to relinquish the premises for another house elsewhere.
(d)Her own phone does not have a facility to take messages.
(e)The monetary values she provides for the items of furniture and effects are either her estimates or priced on recent enquiries with retailers. She does not have any receipts for their purchase.
In the evidence of the Public Trustee and Guardian (PTG), Mr Taylor clarified that in its successive appointments with respect to Nadine it was appointed only as financial manager. The tribunal has not considered that the appointment of a guardian to support her non-financial decision-making is warranted. Mr Taylor described the impairment of Nadine’s decision-making ability as at the non-severe end of the scale. The PTG had had a long connection with the family having been the mother’s financial manager and then executor of her estate. As manager the PTG has no obligation to consult with the family, provided this is not adverse to the interests of the protected person. Nadine had made clear to the PTG she wanted no reference to or contact with the applicant about her life or affairs. The PTG has adhered strictly to those wishes.
Mr Taylor gave evidence about what he described as an inadequate function of its current (since mid-2019) Cisco Phone system service.[12] Principally its functionality does not allow the PTG to ‘park’ an answered incoming call in order to answer a new call. PTG staff must resolve one call at a time before answering another call. This can result in excessively extended waiting times when relevant staff have to be located or connected. This was compounded when staff commenced working remotely in March 2020, as all incoming calls were diverted to an answering message and callers were asked to leave a voice message. The voice message was transferred to the PTG email inbox to be triaged to the appropriate team. This system continued until December 2020. The phone response system was then altered to allow real-time response to incoming calls. With outgoing calls the individual PTG extension number would not appear on the external recipient’s phone. Mr Taylor conceded that given this inadequate functionality there were some failures in PTG staff taking incoming calls while working remotely. Incoming calls may simply not have been answered before being terminated. I am satisfied that many of the calls the applicant says she made fall into this category.
[12] Witness statement of Andrew Taylor dated 10 September 2021 at [10]
The evidence of Ms Robyn Milligan is that Nadine was one of her clients and she managed her financial affairs. This involved managing her income, a Centrelink pension, assisting her to set a fortnightly budget and assisting her to ensure utilities expenses were covered and she had adequate living expenses. Ms Milligan gave evidence that Nadine told her in June 2020 that she wished to hand back her Housing ACT property.[13] At the time she was not residing in the premises and had not been for some time having been removed to supported accommodation elsewhere. A transfer application had already been submitted to Housing ACT. Nadine told her then that she did not want any of the contents of the premises and that the contents belonged to the applicant.
[13] Witness statement of Robyn Milligan dated 13 September 2021 at [6]
Ms Milligan confirmed she later called and had a telephone conversation with the applicant on 30 June 2020. She said it was a difficult conversation as she could not get her point across to the applicant. At the applicant’s request she transferred the call to her team leader Ms Peta Duggan. She did not make a file note of the conversation at that time. On 3 July 2020 she contacted Nadine by phone who again told her she did not wish to keep any of the contents and consented to their clearing by the PTG team.[14] She made a file note of this conversation (attachment A of her statement) and recorded there “I rang Nadine today to let her know that [Sarah] had advised this office that she did not own any of the contents but did not want them removed or the property handed back”. I am satisfied this was an inaccurate statement. However, it may be Ms Milligan had not had the opportunity to raise this with the applicant in her 30 June 2020 phone conversation. This statement was repeated in the letter dated 7 July 2020 which was dropped into the applicant’s letterbox (attachment B of her statement). Ms Milligan had signed the letter under the hand of Ms Duggan.
[14] Witness statement of Robyn Milligan dated 13 September 2021 at [8]
The evidence of Ms Peta Duggan is that the conversation she had with the applicant on 30 June 2020 when the call was transferred to her was very long, more than half an hour, perhaps 40 minutes. She says her recollection is that she asked the applicant at least twice whether any items of furniture in the premises belonged to her or her family and was told no. However, the applicant was insistent the items could not be disposed of because Nadine would need them to move back into the property which is what she (the applicant) wanted. At this time Ms Duggan was only aware of some generic property remaining in the premises, she did not know the specific items. Her evidence was that given 30 June was an exceptionally busy end-of-financial-year day for her she did not make a file note of the conversation that day. She transcribed her handwritten notes later on 3 July 2020 and recorded there “The furniture and other items in [Nadine’s] old Housing ACT property do not belong to her or any of her family members”.[15] I accept her evidence that at this time she believed “the items did not belong to [Sarah] in any way”. I also accept the telephone conversation had been a lengthy one.
[15] Witness statement of Peta Duggan dated 14 September 2021, attachment B
Ms Duggan’s evidence was that on 16 July 2020 she was forwarded the Legal Aid ACT email. As the author asked, that email triggered a phone call by Ms Duggan to the applicant on that day. The call was not answered and she was unable to leave a message.[16] On the following day she replied to the Legal Aid ACT email.[17] She says in part in her reply “If [Sarah] can advise the PTG what items are hers in the property we can arrange access to the property to remove the said items” .[18] Given this, I find that as and from the time of receipt of the Legal Aid ACT email Ms Duggan became alert to the possibility that some of the items of furniture were in fact the applicant’s contrary to her previous understanding.
[16] Witness statement of Peta Duggan dated 14 September 2021 at [11]
[17] Witness statement of Peta Duggan dated 14 September 2021 at [12]
[18] Witness statement of Peta Duggan dated 14 September 2021, attachment D
The subsequent reply she received from Legal Aid ACT was to the effect that the office was not acting on behalf of the applicant, and the PTG was asked “if you could please correspond directly with [Sarah] in regards to the furniture, that would be appreciated”.[19] I find this further contact did not happen.
[19] Witness statement of Peta Duggan dated 14 September 2021, attachment D
Her further evidence was that the PTG Property Unit attended the premises on 20 July 2020, inspected it and took a series of photographs of its contents.[20] She did not personally inspect the property and it was not inspected again by the Property Unit. The unit then confirmed that it was not financially feasible to sell the furniture items.[21]
[20] Witness statement of Peta Duggan dated 14 September 2021, attachment E
[21] Witness statement of Peta Duggan dated 14 September 2021 at [15]
Ms Duggan’s evidence was that given the application for guardianship the applicant filed on 21 July 2020, she considered it inappropriate to contact her further concerning the items of furniture. As such no contact was made until after the tribunal dismissed that application on 15 September 2020. The next contact was an unanswered phone call by her to the applicant on 25 September 2020.[22] Ms Duggan’s evidence was that at the time the PTG received an email from Nadine sent 29 September 2020 she was satisfied that Nadine was “100% settled on the new property” and she was content to relinquish the old premises and its contents. On 13 October 2020 the PTG formally surrendered the premises and provided an authority to dispose of its contents.[23] I am satisfied from a phone call received by Ms Duggan from the applicant on 24 December 2020 that the applicant was unaware of this and was still attempting to locate and recover the now destroyed furniture items.[24]
[22] Witness statement of Peta Duggan dated 14 September 2021 at [19]
[23] Witness statement of Peta Duggan dated 14 September 2021, attachment I
[24] Witness statement of Peta Duggan dated 14 September 2021 at [22]
It is important to note that the basis of this claim has already been the subject of complaint to the ACT Ombudsman. The Ombudsman commenced an investigation of a complaint on 3 December 2020. The respondent provided answers to a series of questions from the Ombudsman on 22 December 2020. On 20 May 2021 the Ombudsman concluded no further investigation was warranted.
The Tribunal must decide a series of interrelated questions of fact in order to reach its decision.
Is the applicant’s ownership of the furniture items established; when was that ownership known to the respondent and; did the applicant clearly communicate to the respondent that she wished to retrieve those items?
I find the applicant’s ownership is not in contention. Her sister Nadine made this clear to the respondent as early as June 2020. However, the applicant’s strong focus on the retention of the premises so her sister could return to live close by to her may somewhat have muddied the waters as to her ownership of the items of furniture. Whether the premises were retained or relinquished was not her decision to make, and as the tribunal found in dismissing her application for guardianship on 15 September 2020 it was not a decision she was entitled to have any part in. As indicated, I have found that Nadine has not wished to have any contact whatsoever with the applicant for some time and does not wish to have her involved in any of her decisions. This is a bitter pill for the applicant to swallow, but that is the fact.

The evidence supports my conclusion that the respondent certainly become aware that the applicant wanted to recover the items of furniture from mid-July. The photographs taken by its Property Unit on 20 July 2020 show the fridge, the bed ensemble and the outdoor table and chairs in situ. I find these are the only items of any real value. I also find it was reasonable in the circumstances for the respondent to refrain from communicating with the applicant in the period from mid-July to mid-September 2020 when her application for guardianship was afoot.
Did the respondent provide the applicant with reasonable opportunity to retrieve the furniture items before surrendering the property?
As indicated above, I find this question only relates to the time period after 15 September and until 13 October 2020 when the respondent surrendered the keys to ACT Housing. The respondent had been aware during that period of the applicant’s ownership of the furniture items. Ms Duggan’s oral evidence was that she made multiple attempts to contact the applicant about the items but I can find evidence of only two in that period – 22 September 2020 when a call from the applicant was returned by its Guardianship Advice line; and a call by Ms Duggan on 25 September 2020 which went unanswered and for which no message could be left. I do not consider this level of contact reasonable opportunity in the circumstances.
Does the respondent owe the applicant a duty/ an obligation to consider her interests?
The Tribunal was not addressed in any detail on the applicable law. It is clear the PTG’s primary duty under the statutory framework of the Guardianship and Management of Property Act 1991 is to the protected person whose property it manages. The decision-making principles that the PTG must follow is to give effect to her wishes and to promote her interests. There is a duty to consult with carers of the protected person but the applicant does not fit the statutory definition of a carer.
There remains however the general duty of care and diligence required to be exercised by a director of a corporation within which the PTG sits. The PTG is established as a corporation under the Public Trustee and Guardian Act 1985 section 8:
8 Public trustee and guardian a corporation sole
(1) The public trustee and guardian—
(a)is a corporation sole by the name of the Public Trustee and Guardian for the Australian Capital Territory; and
(b)has perpetual succession; and
(c)shall have an official seal; and
(d)is capable, in the corporate name of the public trustee and guardian, of acquiring, holding and disposing of real and personal property and of suing and being sued.
A corporation has a duty to exercise care and diligence under the Corporations Act 2001 (Cth) section 180:
180 Care and diligence—civil obligation only
Care and diligence—directors and other officers
(1) A director or other officer of a corporation must exercise their powers and discharge their duties with the degree of care and diligence that a reasonable person would exercise if they:
(a)were a director or officer of a corporation in the corporation’s circumstances; and
(b)occupied the office held by, and had the same responsibilities within the corporation as, the director or officer.
Additionally, the PTG as a corporate entity has liability for any consequent loss or damage under the Public Trustee and Guardian Act 1985 section 12:
12     Liability of public trustee and guardian
Where, by an act or omission of the public trustee and guardian or another person acting or purporting to act in good faith for the public trustee and guardian, a person sustains a loss or injury that would have entitled that person to a remedy in respect of the loss or injury if the act or omission were an act or omission of an individual—
(a)     the person sustaining the loss or injury is entitled to the same remedy against the public trustee and guardian in the corporate capacity of the public trustee and guardian as the person would have been entitled to against an individual; and
(b)     the liability of the public trustee and guardian must be discharged by the Territory.
Given this, I find the respondent owed the applicant a duty to consider her interests on 9 October 2020 when it authorised Housing ACT to dispose of the items of furniture in the premises. I find it did not give those interests adequate attention. I find in doing so the PTG breached its corporate obligation to the applicant in that it failed to exercise the requisite care and diligence. I should say as a balance that the respondent and its witnesses showed the applicant nothing but respect and courtesy during the hearing.
Any award that the Tribunal may make in the applicant’s favour has to consider the issue of quantum of damages. As indicated, I find that only the fridge, the bed ensemble and the outdoor table and chairs are of compensable value. The applicant gives estimate values of these (the fridge $1749, the bed/bed coverings/linen/doona $500, the dining setting $349) totalling $2,598. However, this estimate bears no clear relation to any loss she has suffered. She says the items were purchased jointly by her and Nadine, and her 70% contribution to their cost is therefore $1,818.60. Given she has had no contact with her sister since at least May 2019 the items were purchased at least three years ago, if not more. Their value has declined significantly. I find her loss is at most 30% of her contribution, namely $545.58. Rounding this, I order the respondent to pay to her the sum of $545 within 28 days of the date of the order.
The Tribunal orders the respondent pay to the applicant the sum of $545 within 28 days in compensation for the items of furniture surrendered to Housing ACT in October 2020.
………………………………..

Senior Member Prof T Foley

Date(s) of hearing	24 September 2021
Applicant:	In person
Solicitors for the Respondent:	Ms G Belcher, ACT Government Solicitor