TY v Protective Commissioner

[2005] NSWADT 292

CITATION:	TY v Protective Commissioner [2005] NSWADT 292
DIVISION:	General Division
PARTIES:	APPLICANT TY RESPONDENT Protective Commissioner
FILE NUMBER:	053404
HEARING DATES:	30/11/2005
SUBMISSIONS CLOSED:	12/02/2005
DATE OF DECISION:	12/07/2005
BEFORE:	Hennessy N - Magistrate (Deputy President)
APPLICATION:	Protective Commissioner - disposition of money - Protected Estates Act - Protective Commissioner - disposition of money
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Guardianship Act 1987 Protected Estates Act 1983
CASES CITED:	MB v Protective Commissioner [2000] NSWSC 717 Re R [2000] NSWSC 886 The Protective Commissioner v "D" & Ors [2004] NSWCA 216
REPRESENTATION:	APPLICANT In person RESPONDENT C Phang, solicitor
ORDERS:	The decision of the Protective Commissioner is affirmed

Section 126 of the Administrative Decisions Tribunal Act 1997 applies to this decision.
Section 126 provides
(1A) This section applies only to the following:

(a) proceedings in the Community Services Division of the Tribunal,

(b) appeals to an Appeal Panel from a decision made by the Tribunal in the Community Services Division,

(b1) proceedings in relation to an external appeal made under section 67A of the Guardianship Act 1987 or section 21A of the Protected Estates Act 1983,

(b2) proceedings in relation to a reviewable decision made under the Guardianship Act 1987 or the Protected Estates Act 1983

(c) such other proceedings (or class or classes of proceedings) as may be prescribed by the regulations for the purposes of this section.


(1) A person must not, except with the consent of the Tribunal, publish or broadcast the name of any person:

(a) who appears as a witness before the Tribunal in any proceedings, or

(b) to whom any proceedings before the Tribunal relate, or

(c) who is mentioned or otherwise involved in any proceedings before the Tribunal,


whether before or after the proceedings are disposed of.
Maximum penalty: 10 penalty units or imprisonment for 12 months, or both.
(2) This section does not prohibit the publication or broadcasting of an official report of the proceedings that includes the name of any person the publication or broadcasting of which would otherwise be prohibited by this section.
(3) For the purposes of this section, a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

REASONS FOR DECISION

Introduction

1 When TY was 11 years old he was injured in a car accident. He received damages by way of compensation for those injuries in a confidential settlement with the defendant. I do not have any medical reports, either from that time or more recently, which would give me an indication of the nature and extent of any disability or incapacity TY now has. TY’s financial affairs have been managed by the Protective Commissioner since soon after the award of damages was made. I assume that that is because the Supreme Court was satisfied that he was incapable of managing his affairs. TY is a Fijian and his mother and some other relatives still live in Fiji. Recently TY asked the Protective Commissioner to give him $10,000 so that he could have a holiday with his wife and two children in Fiji. He is booked to leave on 16 December 2005, but has not paid any money towards the holiday as yet. The Protective Commissioner refused his request.

2 There was no dispute that the Protective Commissioner has power to pay for TY and his family to have a holiday in Fiji: s 28(1) of the Protected Estates Act 1983. TY has applied to the Tribunal for a review of the Protective Commissioner’s decision. The Tribunal’s role is to determine whether the Protective Commissioner’s decision is the “correct and preferable” decision on the basis of all the relevant factual material and the applicable law: s 63 Administrative Decisions Tribunal Act 1997.

On what basis should the Protective Commissioner make his decision?

3 In order to determine whether the Protective Commissioner has made the correct and preferable decision in refusing TY’s request, I need to identify the legislative or other basis on which such decisions should be made. There is nothing in the Protected Estates Act 1983 which gives any guidance on that question. Section 28(a) of that Act merely gives the Protective Commissioner “all functions necessary and incidental” to the “management and care” of the estate. An indication as to the principles that should apply can be obtained from Supreme Court decisions dealing with associated issues and from the Protective Commissioner’s own guidelines and submissions.

4 In The Protective Commissioner v "D" & Ors [2004] NSWCA 216 the Court of Appeal decided that the Protective Commissioner has power under the Protected Estates Act 1983 to make payment for past gratuitous care out of the estate of the protected person. In the course of the reasons McColl JA (Mason P and Giles JA agreeing) said at [173] that:

The manager stands in the shoes of a person who is unable to manage his/her affairs by virtue of circumstances beyond his/her control. The manager exercises a protective and benevolent function, protective in the sense that the manager’s task is to ensure the estate is managed in a manner to secure the protected person’s estate for that person’s continued maintenance. In this respect the 1983 Act and its predecessors reflected the “parental and protective” jurisdiction historically exercised by the Crown both in exercise of its prerogative and pursuant to the Prerogative Statutes.
5 The Protective Commissioner referred the Tribunal to a decision of Young J in Re R [2000] NSWSC 886 (17 August 2000). That case was an appeal from a decision of the Guardianship Tribunal making a financial management order in respect of a person and committing the management of the person’s estate to the Protective Commissioner. Under s 25G of the Guardianship Act 1987, the Guardianship Tribunal may make a financial management order only if it is satisfied, among other things, that it is in the person’s best interests that the order be made. Young J deals briefly with the meaning of “best interests” in Re R . However this case is not authority for the proposition that the principle to be applied when the Protective Commissioner makes decisions in relation to a person’s estate is a simple “best interests” test.

6 Similarly, the Supreme Court sometimes examines decisions of the Protective Commissioner in the context of an application to remove him as the manager of a protected person’s estate. That happened in MB v Protective Commissioner [2000] NSWSC 717 when Hodgson CJ decided to remove the Protective Commissioner as the protected person’s financial manager. Hodgson CJ characterised the issue as whether it was in the protected person’s interests to remove the Protective Commissioner as manager and to substitute the Perpetual Trustee Co Ltd. Again, this case is not authority for the proposition that the principle to be applied when the Protective Commissioner makes decisions in relation to a person’s estate is a simple “best interests” test.

7 When making decisions about a person’s estate, the Protective Commissioner must endeavour to fulfil the protected person’s needs and wants to the extent that he is reasonably able to do so given the financial resources available. The tension between the person’s needs and wants and the available resources was expressed by the Court of Appeal in The Protective Commissioner v "D" & Ors [2004] NSWCA 216 as “securing the protected person’s estate for that person’s continued maintenance.” But factors other than the protected person’s needs and wants are also relevant. The entitlement of carers to payment for past gratuitous care is one example. Another is the needs and wants of people who are dependent on the protected person.

8 The Protective Commissioner submitted that the relevant considerations when making a decision include:

a) the client's own views

b) the client's immediate and long term needs

c) the financial resources available

d) requests, plans and objectives of any Guardian of the person

e) the client's previous, current and hoped-for lifestyle

f) the client's family commitments or obligations

g) arrangements made by the client when they were able to manage their affairs themselves

h) views of the client and their family, and rights and views of probable beneficiaries after the person's death.

9 As I did not have the benefit of detailed legal submissions, I do not intend to decide whether these factors are all relevant, or whether there are other factors which should be taken into account. In any event, factors (d), (g) and (h) are not relevant in these proceedings. The factors listed in (a), (b), (e) and (f) enable the Protective Commissioner to assess TY’s wants and needs and those of his dependents. The Protective Commissioner’s role is to manage TY’s estate in such a way as to allow those wants and needs to be met to the greatest extent that is reasonably possible. The Protective Commissioner also submitted that in making decisions, he is guided by the principles in the Guardianship Act 1987. Although those principles are admirable, they apply only to persons exercising functions under the Guardianship Act 1987.

Application of principles to the facts of this case

10 Needs and wants of TY and his views. It is clear that TY would like to go on a holiday with his family to Fiji. We have evidence that the holiday will cost approximately $10,000. What is missing is any evidence of TY’s need for ongoing financial support. For example, I do not have any evidence about the nature or extent of TY’s disability following the car accident nearly 20 years ago. I gave TY the opportunity to give the Tribunal recent medical reports that were obtained by his solicitors. He decided not to do so. Consequently, I do not know what his earning capacity is or what his future financial needs are likely to be.

11 Financial resources. The assets that remain from the award of damages are a house in Queensland, which returns rental income of $5,700 per year, and approximately $48,000 which is being held in trust by the Protective Commissioner. On 1 November 2004, the balance in TY’s account with the Protective Commissioner was $75,340.72. Twelve months later that balance has dropped to close to $48,000.00. The expenditure during those 12 months included repayment of some personal debts and legal expenses and disbursements associated with TY obtaining legal advice about how to go about removing the Protective Commissioner as his financial manager. The expenditure also included a trip to Fiji. The Protective Commissioner said that when he gave TY the money to go to Fiji last year, TY promised that he would not ask for more money for another holiday for another five years. Even if TY did make that promise, it does not prevent the Protective Commissioner from allocating more money for another holiday this year.

12 TY’s income from salary and wages. TY works as a car cleaner. His annual income is approximately $31,200.00. He also says that he has weekend work driving hire cars. The evidence does not allow me to calculate exactly how much TY earns from that job. In any case, there is a real question as to whether TY is lawfully entitled to drive at the moment. Although TY provided a copy of his driver’s licence, that licence expired on 25 November 2005 and he has not applied to have it renewed. In addition, his licence was suspended on 28 October 2005 for non-payment of fines. Recent inquiries by an officer of the Protective Commissioner revealed that the suspension is still current. TY said that he is going to pay off his fines, but that he has not yet paid the full amount. Given the doubt about whether he is currently entitled to drive, I have not taken into account any income he may earn from driving hire cars.

13 Budget. The Protective Commissioner came to an arrangement with TY in November 2004 that he would make available to TY a “discretionary budget” of $5295 a year. That amount represented some of the income from his rental property and the interest received on his trust account. Since July 2005, TY has spent $3,570.72 from that discretionary budget and currently has a balance of $1724.28. The Protective Commissioner submitted that TY’s recent expenditure is in excess of what his current income can support.

Conclusion

14 I have no medical or other evidence of TY’s alibility to continue working so that he can provide for himself and his family. If I had that evidence, and I was satisfied that TY was able to continue to provide for himself and his family in the future, I may have considered setting aside the Protective Commissioner’s decision and allowing TY to spend $10,000 on a holiday in Fiji. Because I do not know how employable TY will be in the future, I agree with the Protective Commissioner that his existing financial resources should not be depleted on another expensive holiday to Fiji. For the financial year 2005/06, the Protective Commissioner has allowed TY to expend most of his rental and interest income at his own discretion. If TY is given a further amount of $10,000 this financial year, his balance will be depleted and the interest on his money will drop. Rather than expend nearly 20% of his remaining balance on another holiday this financial year, it is reasonable for the Protective Commissioner to limit his discretionary expenditure in the manner that he has. For those reasons, the decision is affirmed.

Order

The decision of the Protective Commissioner is affirmed.