RW v Protective Commissioner

[2005] NSWADT 209

CITATION:	RW v Protective Commissioner [2005] NSWADT 209
DIVISION:	General Division
PARTIES:	APPLICANT RW RESPONDENT Protective Commissioner
FILE NUMBER:	053297
HEARING DATES:	1/09/2005
SUBMISSIONS CLOSED:	09/05/2005
DATE OF DECISION:	09/09/2005
BEFORE:	Hennessy N - Magistrate (Deputy President)
APPLICATION:	Protected Estates Act - Protective Commissioner - powers as to property - Protective Commissioner - powers as to property
MATTER FOR DECISION:	Preliminary matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Interpretation Act 1987 Protected Estates Act 1983 Protected Estates Regulation 2003
CASES CITED:	APLA Ltd v Legal Services Commissioner (NSW) [2005] HCA 44 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Birmingham University v FCT (1938) 60 CLR 572 JX v Protective Commissioner [2004] NSWADT 20 Port MacDonnell Professional Fishermen’s Association Inc v South Australia (1989) 168 CLR 340 Ramsey & Ors v Vogler & Anor (1999) 44 IPR 153
REPRESENTATION:	APPLICANT In person RESPONDENT T Tunbridge, solicitor
ORDERS:	The Tribunal has jurisdiction to review the decision of the Protective Commissioner to sell RW’s mother’s property in New Zealand.

Introduction

1 RW has applied to the Tribunal for a review of a decision by the Protective Commissioner to sell property in New Zealand owned by her mother. RW’s mother is an elderly woman who lives in a nursing home in country New South Wales. On 8 October 2004 the Guardianship Tribunal ordered that her financial affairs be managed by the Protective Commissioner. The Protective Commissioner has decided to sell the property and will rely on reciprocal arrangements with New Zealand to implement that decision. RW requested an internal review of the decision. The decision was affirmed. RW then applied to the Tribunal for a review of the decision and for the decision to be stayed pending the Tribunal’s determination. Although the Protective Commissioner conducted an internal review and advised RW that she could apply to this Tribunal for an external review of the decision, he now says that the Tribunal does not have jurisdiction to conduct an external review because the decision relates to property outside New South Wales.

2 RW’s daughter, who is legally qualified, acted as her mother’s agent in these proceedings. As she was not aware that the Protective Commissioner would be making a submission about jurisdiction at the hearing of the stay application, I made directions for her to file and serve written submissions in reply to the Protective Commissioner’s submission. The parties agreed to the jurisdiction question being determined on the papers under s 76 of the Administrative Decisions Tribunal Act 1997 (ADT Act).

Source of jurisdiction

3 The Tribunal’s jurisdiction to conduct a merits review of decisions made by the Protective Commissioner comes from Section 38(1) of the ADT Act and s 28A of the Protected Estates Act 1983. Section 38 of the ADT Act confers jurisdiction on the Tribunal to review “a decision” made by an administrator in the exercise of a function conferred or imposed by an Act or statutory rule if the Act or statutory rule grants the Tribunal jurisdiction to do so. Section 28A(1) of the Protected Estates Act 1983 provides that an application may be made to the Tribunal for review of “a decision” by the Protective Commissioner that “is made in connection with the exercise of the Commissioner’s functions” under Part 3, Division 3 of that Act, if that decision is declared by the regulations to fall within the class of decisions that may be reviewed. The regulation does not limit the class of decisions that may be reviewed. Clause 9 of the Protected Estates Regulation2003 provides that all decisions made by the Protective Commissioner “in connection with the exercise of the Protective Commissioner’s functions under Division 3 of Part 3 of the Act” may be reviewed pursuant to s 28A.

4 Division 3 of Part 3 of the Protected Estates Act 1983, which comprises sections 24 to 28A, is headed ‘Management of estates by Protective Commissioner’. Section 24(1) gives the Protective Commissioner “all functions necessary and incidental” to manage and care for the estate of “a protected person”. Without limiting the generality of s 24(1), s 24(2) gives the Protective Commissioner certain functions in respect of the estate of a protected person. One of those functions is to “sell, realise, charge and mortgage real and personal property.” Mr Tunbridge submitted that the Protective Commissioner’s powers under Division 3 Part 3 of the Act are limited to property in New South Wales. He comes to that conclusion on the basis of s 12 of the Interpretation Act1987 which states that “ a reference to a locality, jurisdiction or other matter or thing is a reference to such a locality, jurisdiction or other matter or thing in and of New South Wales.”

5 Mr Tunbridge submitted that the powers of the Protective Commissioner as to property in New Zealand owned by protected persons in New South Wales is conferred by s 67 which is in Part 6 of the Act. Under s 67, if a protected person owns real estate or personal property outside New South Wales, the Protective Commissioner can authorise an officer in that country, state or territory to sell the property as if the person was resident in that location. As decisions under Part 6 of the Act are not reviewable, the Protective Commissioner says that this Tribunal does not have jurisdiction either to review that decision or to grant a stay. Alternatively, the Protective Commissioner submitted that decisions made as to the sale of New Zealand property prior to a request being made under s 67, are not final and operative decisions and are therefore not reviewable: Australian Broadcasting Tribunal v Bond 1990 170 CLR 321 and JX v Protective Commissioner [2004] NSWADT 20.

Tribunal’s reasoning and conclusion

6 The Protective Commissioner’s submission is not correct because RW has applied for a review of the decision to sell the property in New Zealand, not for a review of any decision to authorise an officer in New Zealand to sell the property. Section 67 merely gives the Commissioner the option of authorising an officer in New Zealand to implement the decision to sell; it does not give the Protective Commissioner, or the officer in New Zealand, a discrete power to sell property which is located outside New South Wales. The only source of power to sell property located outside New South Wales is in s 24. If that provision does not confer power on the Commissioner to sell property outside New South Wales, then the Commissioner’s decision is beyond his power to make it. Even if that is the case, the Tribunal has jurisdiction to review a decision which is ultra vires: s 6(3) of the Administrative Decisions Tribunal Act 1997.

7 In general, New South Wales legislation should not be interpreted so as to give it an extra-territorial effect. Nevertheless, the state legislature has power to make laws with extraterritorial applications: APLA Ltd v Legal Services Commissioner (NSW) [2005] HCA 44 at [40], Ramsey & Ors v Vogler & Anor (1999) 44 IPR 153 at 157, Port MacDonnell Professional Fishermen’s Association Inc v South Australia (1989) 168 CLR 340 at 372.) Mr Tunbridge correctly pointed out that s 12 of the Interpretation Act provides that a reference to a matter or thing, such as the reference to real and personal property in s 24(2)(f), is a reference to that matter or thing “in and of New South Wales”. However, the operation of s 12 may be displaced by a contrary intention: Birmingham University v FCT (1938) 60 CLR 572.

8 A contrary intention is apparent in this case. Although the term “estate” in s 24(2) is not defined in the Protected Estates Act 1983, the power to manage RW’s mothers’ estate is conferred under the Guardianship Act 1987. Section 3 of that Act defines the estate of a person to mean “the property and affairs of the person”. The ordinary meaning of these words are that all the property and affairs of the person are included, even those located outside New South Wales. We agree with RW’s submission that the alternative – that all orders made by the Guardianship Tribunal in respect of a person’s estate apply only to property and affairs within New South Wales, is untenable.

9 Section 24(1) of the Protected Estates Act 1983 is a broad provision giving the Protective Commissioner “all functions necessary and incidental” to the management and care of a protected person’s estate. The list of functions in s 24(2) does not limit the generality of the power in s 24(1). The wide powers in s 24 and the unrestricted definition of estate in the Guardianship Act 1987 establish that parliament intended the Protected Estates Act 1983 to have extraterritorial effect in relation to estates located outside New South Wales. The consequences of interpreting the provisions as being confined to New South Wales also support this conclusion. If s 24 does not include property outside New South Wales, then the Protective Commissioner would have no power whatsoever over properties in other states, territories or in other countries.

10 It is also clear from the provisions in Part 6, which relate to reciprocal arrangements with other countries, states and territories, that parliament intended the Protective Commissioner to exercise his functions in relation to real and personal property outside New South Wales. Section 67 expressly deals with a situation where a protected person owns real or personal property in a “reciprocating” State, such as New Zealand. In those circumstances, the Protective Commissioner “may authorise an officer charged by the laws of the reciprocating state with the care, recovery, collection, preservation and administration of the property of incapable persons.” The authority may allow the officer to collect, recover, manage, sell or otherwise dispose of and administer the property or to make inquiry respecting the property.” The key element of this provision is that the officer in the reciprocating state must be authorised by the Protective Commissioner before he or she can deal with the property. A decision to sell a property in New Zealand must be made by the Protective Commissioner, not by the officer in New Zealand.

11 Mr Tunbridge’s alternative submission was that decisions made as to the sale of New Zealand property prior to a request being made under s 67, are not final and operative decisions and are therefore not reviewable. However, it appears from material provided by RW, that the Protective Commissioner has already instructed officers in New Zealand to sell the property. Even if that has not happened, subject to any appeal rights, the decision is final. It cannot be characterised as “merely a step taken in the course of reasoning on the way to the making of the ultimate decision.” (Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 per Mason CJ at 336.) It is also an operative decision in the sense that nothing remains to be done before it can be implemented.

Conclusion

Section 24 of the Protected Estates Act 1983 gives the Protective Commissioner power to sell the property of a protected person where that property is located outside New South Wales. A decision to sell the property of a protected person which is located outside New South Wales is a decision that the Tribunal has jurisdiction to review.

1. The Tribunal has jurisdiction to review the decision of the Protective Commissioner to sell RW’s mother’s property in New Zealand.

2. Application for stay listed for hearing on 20 September 2005 at 2p.m.