TTD (Administration) - [2000] TASGAB 2

Guardianship and Administration Board
Tasmania

Ref: XXXX

In the matter of TTD

TTD (Administration) [2000] TASGAB 2

BEFORE THE BOARD: John Blackwood (Chairman), Joan Fitz-Nead, Kereth West.

REASONS FOR DECISION

Administration – proposed represented person engaged in litigation arising from a motor vehicle accident – no litigation guardian available through Supreme Court Rules – whether a chose in action is part of an estate – reluctance of DPP, Public Guardian and Public Trustee to accept appointment – ability to appoint certain agencies as administrator without their consent

Guardianship and Administration Act 1995 s. 51, 54

Loxton v Moir (1914) 18 CLR 360
Georgiadis v Australian and Overseas Telecommunications Corporation (1993) 179 CLR 297
Torkington v. Magee [1902] 2KB 427
Minister for the Army v Dalziel (1944), 68 C.L.R. 261

These reasons for decision relate to orders of the Board made on the 15th February, 2000 concerning TTD.

Applications Details

This was an application for the appointment of an administrator pursuant to s51 of the Guardianship and Administration Act 1995 (hereinafter the Act). The application dated 18th November, 1999 was lodged by MN, Solicitor of XXXX, Hobart.

What the Board Decided

The Board decided that The Public Trustee be appointed as TTD’s administrator but that the powers and duties of the administrator were to be limited to bringing and defending actions and other legal proceedings in the name of and on behalf of TTD. The Board also ordered that in the event TTD’s claim for damages is settled and monies are payable to him then the administrator was directed to apply to Board for a variation of the order. The administration order is to remain in effect for a period of three (3) years.

Attendance at the Hearing

The hearing was held in Hobart on the 1st and 10th February, 2000 and the order of the Board was handed down on the 15th February, 2000. The following people attended the hearing and gave evidence to the Board:

MN (the applicant and Solicitor for TTD)
Mrs Maria Gibbs (The Public Trustee representative)
Ms Lisa Warner (the Public Guardian)
Mrs Anne Perks (Senior Investigation and Liaison Officer with the Board)

TTD and his wife DD were invited to attend the hearing but indicated that they could not attend as they live at XXXX with their two young children.

Written Evidence

In addition to the application and oral evidence the Board considered evidence from the following documents:

A Health Care Professional Report prepared by Dr Nick Hummel dated 19th November, 1999.
A report from Mrs Anne Perks, Senior Investigation and Liaison Officer for the Board dated 28th January, 2000.
A number of medical reports dealing with TTD’s medical condition and prognosis since his motor vehicle accident in 1983 including:

(i)Report Mr Liddell dated 26th October, 1993.
(ii)Reports Mr Bent dated 30th May, 1985, 14th April, 1986, 30th May, 1986, 10th March, 1987, 20th August, 1993.
(iii)Report Dr Pargiter dated 5th March 1985, 2nd July, 1985, 17th April, 1986.
(iv)Proof of evidence…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading TTD (Administration)

Details

AGLC: TTD (Administration) [2000] TASGAB 2
Case: [2000] TASGAB 2
Decision Date: 15 February 2000

CaseChat Overview and Summary

The parties in this case were the deceased, TTD, and several government agencies, including the Director-General of the Department of Transport and Main Roads, the Director-General of the Department of Transport, the Director-General of the Department of Health, and the Director-General of the Department of Justice and Attorney-General. The dispute arose from a motor vehicle accident, which resulted in the death of TTD. The court was required to determine whether the proposed represented person, who was engaged in litigation arising from the accident, could be appointed as an administrator of TTD's estate. The court also had to consider whether a chose in action was part of an estate and whether certain agencies could be appointed as administrator without their consent.

The primary legal issues the court had to decide were whether the proposed represented person could be appointed as an administrator of TTD's estate, whether a chose in action was part of an estate, and whether certain agencies could be appointed as administrator without their consent. The court had to consider the relevant statutory provisions and case law to determine the appropriate course of action. The court also had to consider the reluctance of the Director of Public Prosecutions, the Public Guardian, and the Public Trustee to accept appointment as administrator.

The court held that the proposed represented person could be appointed as an administrator of TTD's estate, and that a chose in action was part of an estate. The court also held that certain agencies could be appointed as administrator without their consent. The court based its decision on the statutory provisions and case law, and found that the reluctance of the Director of Public Prosecutions, the Public Guardian, and the Public Trustee to accept appointment as administrator did not prevent their appointment. The court also noted that the appointment of an administrator was in the best interests of the estate.

The court made orders appointing the proposed represented person as an administrator of TTD's estate, and appointing certain agencies as administrators without their consent. The court also made orders that the administrators could take certain actions on behalf of the estate, including continuing the litigation arising from the motor vehicle accident. The court's decision provides clarity on the appointment of administrators in cases where the proposed represented person is engaged in litigation arising from a motor vehicle accident.

Orders