NU v Protective Commissioner

[2008] NSWADTAP 64

Appeal Panel - Internal

CITATION:	NU v Protective Commissioner [2008] NSWADTAP 64
PARTIES:	APPLICANT NU RESPONDENT Protective Commissioner
FILE NUMBER:	089061
HEARING DATES:	1 October 2008
SUBMISSIONS CLOSED:	1 October 2008
DATE OF DECISION:	9 October 2008
BEFORE:	Hennessy N - Magistrate (Deputy President)
CATCHWORDS:	Application for appeal and interlocutory order misconceived
DECISION UNDER APPEAL:	NU v Protective Commissioner [2008] NSWADT 201
FILE NUMBER UNDER APPEAL:	073382
DATE OF DECISION UNDER APPEAL:	04/22/2008
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Protected Estates Act 1989
REPRESENTATION:	APPLICANT NU RESPONDENT Protective Commissioner
ORDERS:	1. The appeal is dismissed 2. The application for urgent interlocutory order is dismissed.

Introduction

1 The appellant, who I refer to in these reasons as NU, has appealed against a decision of the Tribunal made on 22 July 2008. NU also applied for an urgent interlocutory order in relation to the Tribunal’s decision. Below I give brief reasons for dismissing both the appeal and the application for an interlocutory order.

2 NU is a woman in her late fifties who has lived in a nursing home for about 10 years. She has been the subject of guardianship and financial management orders since the mid 1990s. Her estate is subject to management by the Protective Commissioner. In a decision of the Guardianship Tribunal she is described as suffering from ‘epilepsy and from organic brain syndrome, cerebral atrophy and a personality disorder’. Despite these disabilities, NU is able to write and express herself orally even though her speech is slow and, at times, slurred.

3 The background to these proceedings is that in July 2007 NU asked the Protective Commissioner to increase her fortnightly allowance of $150 and to pay it directly to her and not through the nursing home. NU also requested that the Protective Commissioner implement a recommendation of the Guardianship Tribunal that she be permitted to manage her income and expenditure on a trial basis. The Protective Commissioner decided not to vary the allowance or implement the Guardianship Tribunal’s recommendation. The Tribunal varied the Protective Commissioner’s decision ordering that the allowance be doubled to $150 a week and that at least half of that allowance be paid into a bank account nominated by NU.

4 NU appealed against the Tribunal’s decision. In her Notice of Appeal she expressed the question of law as follows:

Why has the law been breached by gov personal ect and only in question If such is proved. I ask for various compensation, interest (all living persona) plus compensation to be legally will to my two (2) living children.

5 NU’s reasons for applying for an interlocutory order were expressed as follows:

Expenses are all sought, which were taken under a fraud act by Lin. N.H. (the nursing home) and Protective Estates Act 1983. Commissioner not abiding by 1983 Act, s 30A from 1996 to Dec. 2008-2009 Lin. N.H (the nursing home) false claims made by D. Halla tax forms eg, escort, podiatry, wheelchairs, comforts, walking frame, hearing aid, hair colour. Tax evasion, no concessions. 2005 – house sold illegally settled Feb 2006. (Words in brackets added)

6 As it was difficult to understand the grounds of NU’s appeal I set the matters down on 1 October 2008 to determine whether the applications should proceed or be summarily dismissed. As summary dismissal is an interlocutory function the Appeal Panel was constituted by myself as the single presidential judicial member: Administrative Decisions Tribunal Act 1997, section 24A. NU attended in person on that day and Mr Tunbridge, representing the Protective Commissioner, attended by phone.

Appeals against Tribunal decisions

7 Section 113(1) of the Administrative Decisions Tribunal Act 1997 sets out the basis on which a party may appeal to the Appeal Panel against a decision of the Tribunal:

(1) A party to proceedings in which an appealable decision of the Tribunal is made may appeal to the Tribunal constituted by an Appeal Panel.

(2) An appeal under this Part:

(a) may be made on any question of law, and

(b) with the leave of the Appeal Panel, may extend to a review of the merits of the appealable decision.

8 Under section 73(5)(h) of the Tribunal Act, the Tribunal (including the Appeal Panel) “may dismiss at any stage any proceedings before it if it considers the proceedings to be frivolous or vexatious or otherwise misconceived or lacking in substance.”

Reasons

9 At the hearing I questioned NU about the grounds of her appeal. She responded by saying that the Protective Commissioner had not abided by the Tribunal’s orders. Mr Tunbridge conceded that the amount of $125 per week had not been paid into NU’s bank account on a regular basis and undertook to remedy that matter.

10 Despite being given several opportunities, NU was not able to identify any grounds of appeal against the Tribunal’s decision, nor did she say why she had applied for the Tribunal’s order to be stayed. Rather, she focused on other grievances she has with the Protective Commissioner and the nursing home which were unrelated to the Tribunal’s decision. The Appeal Panel is not able to address these grievances in the context of an appeal against the Tribunal’s decision. Consequently NU’s appeal and application for an interlocutory order are misconceived and should be dismissed.

11 Orders

1. The appeal is dismissed.

2. The application for urgent interlocutory order is dismissed.