Nittis v NSW Trustee and Guardian

[2019] NSWCATAD 175

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Nittis v NSW Trustee and Guardian [2019] NSWCATAD 175
Hearing dates:	On the papers
Date of orders:	23 August 2019
Decision date:	23 August 2019
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	G Blake AM SC, Senior Member
Decision:	Application of Antonia Nittis that she be joined as a respondent to the proceedings be dismissed.
Catchwords:	ADMINISTRATIVE LAW - Application for review of decision of NSW Trustee and Guardian – Application for joinder by wife of person whose estate under financial management
Legislation Cited:	Administrative Decisions Review Act 1997 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) NSW Trustee and Guardian Act 2009 (NSW)
Category:	Procedural and other rulings
Parties:	Maria Nittis (Applicant) NSW Trustee and Guardian (Respondent)
Representation:	Solicitors: Applicant (Self Represented) McLaughlin & Riordan (Applicant)
File Number(s):	2019/00077751
Publication restriction:	None

REASONS FOR DECISION

Summary

1. The applicant, who is a daughter of Michael Nittis (Mr Nittis) whose estate is under financial management by the respondent, NSW Trustee and Guardian, seeks an administrative review pursuant to the Administrative Decisions Review Act 1997 (NSW) of the decision of the respondent made on 11 February 2019 to pay certain monies out of the estate of Mr Nittis to or on behalf of Antonia Nittis, his wife (Mrs Nittis).

2. Mrs Nittis has applied to be a party to the proceedings.

3. I have decided that the application of Mrs Nittis to be joined as a respondent to the proceedings should be dismissed.

Background

4. Mr Nittis, who was born on 20 February 1926, is aged 93 years.

5. On 26 July 2015, Mr Nittis married Mrs Nittis, who is from the Philippines.

6. In August 2017, Mrs Nittis was deported to the Philippines for overstaying her visa for 10 years.

7. On 8 March 2018, the Tribunal in proceedings no 2017/00345786 made orders that the estate of Mr Nittis is subject to management under the NSW Trustee and Guardian Act 2009 (NSW) and the management of the estate of Mr Nittis is committed to the respondent.

8. On 9 October 2018, John Neely, Senior Manager Service Delivery of the respondent, made a decision to pay the following monies out of the estate of Mr Nittis to or on behalf of Mrs Nittis (the Decision):

1. payment of the cost to lodge a visa application for Mrs Nittis totalling $7,160.00 to MIG Assist directly;

2. payment of the invoice of $2,095.95from her previous migration agent, Gabito Lawyers, for her unsuccessful visa application;

3. an allowance to Mrs Nittis of $100.00 per week commencing on 17 Decembers 2018;

4. a one off lump sum of $5,000.00 to Mrs Nittis.

9. On 11 February 2019, Carol Coombes, Senior Manager Branch Network of the respondent, undertook an internal review of the Decision and decided to affirm the Decision (the Internal Review Decision).

Procedural history

10. On 11 March 2019, the applicant commenced proceedings 2019/00077751 in the Tribunal against the respondent by lodging an application in which she seeks an administrative review of the Internal Review Decision.

11. On 15 May 2019, Mrs Nittis in her email sent to the applicant’s lawyers indicated her wish to participate in these proceedings.

12. On 21 May 2019, the Tribunal made the following directions:

1. Mrs Nittis is to provide to the Tribunal and to the applicant and the respondent submissions in support of her application for joinder, including advice as to how she intends to participate in the proceedings if joined, by 30 May 2019;

2. the applicant and the respondent are to provide to the Tribunal and to Mrs Nittis any evidence and submissions in response to the application for joinder, by 11 June 2019;

3. the application for joinder will be determined on the papers after 11 June 2019.

Relevant legislation

CAT Act

13. Part 4 Division 3 (which is comprised by ss 44 to 48) of the Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act) deals with participation in proceedings in the Tribunal. Section 44 deals with parties and intervention, and relevantly provides:

44 Parties and intervention

(1)   The Tribunal may order that a person be joined as a party to proceedings if the Tribunal considers that the person should be joined as a party.

14. Part 5 (which is comprised by ss 56 to 63) deals with determination of issues and proceedings. Section 58 deals with power to impose conditions, and relevantly provides:

58 Power to impose conditions

A power of the Tribunal to make an order or other decision includes a power to make the order or other decision subject to such conditions (including exemptions) as the Tribunal specifies when making the order or other decision.

CAT Rules

15. Part 7 Division 1 (which is comprised by rr 27 to 30) of the Civil and Administrative Tribunal Rules 2014 (NSW) (CAT Rules) deals with parties. Rule 27 deals with parties to proceedings for a general decision or an administrative review decision, and relevantly provides:

27 Parties to proceedings for general decision or administrative review decision

The parties to proceedings for a general decision or administrative review decision are:

(a)   the applicant, and

(b)   if an order or other decision is sought from the Tribunal in respect of a person or body (other than the applicant)—the person or body in respect of whom the order or other decision is sought, and

…

(d)   any other person who is made a party to the proceedings by the Tribunal under section 44 of the Act, and

…

Note. In proceedings for an administrative review decision, the administrator who made (or is taken to have made) the administratively reviewable decision concerned would be the person or body referred to in paragraph (b).

Evidence and submissions

Mrs Nittis

16. On 29 May 2019, Mrs Nittis in her email sent to the Tribunal states:

This is Antonia Nittis, Michael Nittis legal wife, wishes to participate in the hearing because I am his legal wife.

My husband also want me to participate in the hearing for the reason that I am his legal wife, he need to know what's going on on the hearing and I can be able to tell my husband what is all about.

My husband Michael Nittis and Me still need to live a normal life. If anyone from NCAT can talk to my husband personally much appreciated and much better to know what is really in his heart and what is the truth.

Me and my husband wishes that the welfare and the truth & justice will prevail.

The respondent

17. The respondent has served a bundle of documents which was received by the Tribunal on 9 April 2019 and which includes the Decision and the Internal Review Decision and documents forming the background to the Decision, and has made no submissions.

The applicant

18. The applicant in her submissions dated 5 June 2019 makes the following submissions:

1. she is agreeable to the joinder of Mrs Nittis as advised in the letter dated 10 May 2019 of her lawyers, McLaughlin & Riordan;

2. Mrs Nittis should clarify how she intends to participate.

19. On 10 May 2019, McLaughlin & Riordan in their letter to the Tribunal submitted any direction for the joinder of Mrs Nittis as a party should be accompanied by a direction:

1. that she produce to the Tribunal records in her possession or control relating to decisions by the Department of Home Affairs in refusing her applications for a visa in 2016 and 2017;

2. for access by the applicant and the respondent to the audio recordings/transcript in proceedings no 2017/00345786 in the Tribunal on 8 March 2018 and 7 March 2019 with regard to Mr Nittis.

Decision

20. The Tribunal has power to order that Mr Nittis to be joined as a respondent to these proceedings pursuant to s 44(1) of the CAT Act and to make such an order subject to one or more conditions s 58 of the CAT Act. Rule 27(d) of the CAT envisages that a person who is not the applicant and the decision maker may be joined as a party to administrative review proceedings.

21. I am not satisfied that it is appropriate for Mrs Nittis to be joined as a respondent to these proceedings. It is the respondent to whom the financial management of the estate of Mr Nittis has been committed and it is the Internal Review Decision which is the subject of an administrative review in these proceedings. The proceedings have been properly constituted and there is no necessity for Mrs Nittis to be joined as a party.

22. No reason has been advanced by Mrs Nittis to be joined as a party other than Mr Nittis wants this to happen and she can inform him about the proceedings. I do not regard this as a sufficient reason for her joinder. The respondent has not supported the joinder of Mrs Nittis. The applicant has provided no reason why it is appropriate for Mrs Nittis to be joined as a party. The support of the applicant for Mrs Nittis to be joined as a party is conditional on Mrs Nittis providing documents relating to decisions by the Department of Home Affairs in refusing her applications for a visa in 2016 and 2017, and access to the audio recordings/transcript in proceedings no 2017/00345786 in the Tribunal on 8 March 2018 and 7 March 2019 with regard to Mr Nittis. It is inappropriate that the provision of these documents and access to these audio recordings/transcript be determined through the imposition of conditions on this application Mrs Nittis to be joined as a party. Accordingly, I have decided that the application of Mrs Nittis to be joined as a respondent to the proceedings should be dismissed.

Order

1. Application of Antonia Nittis that she be joined as a respondent to the proceedings be dismissed.

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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: 23 August 2019