WK v NSW Trustee and Guardian (GD)

[2011] NSWADTAP 24

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:	WK v NSW Trustee and Guardian (GD) [2011] NSWADTAP 24
Hearing dates:	11 May 2011
Decision date:	31 May 2011
Jurisdiction:	Appeal Panel - Internal
Before:	Appeal Panel comprising: Judge K P O'Connor, President J Millar, Judicial Member B Field, Non-judicial Member
Decision:	Appeal dismissed
Catchwords:	JURISDICTION - Investment decision relating to management of estate of infant - Appeal dismissed
Legislation Cited:	Damages (Infants and Persons of Unsound Mind) Act 1929 Guardianship Act 1987 NSW Trustee and Guardian Act 2009 Protected Estates Act 1983
Category:	Principal judgment
Parties:	WK (Appellant) NSW Trustee and Guardian (Respondent)
Representation:	In person (Appellant) I Rugless, Clinch Long Letherbarrow (Respondent)
File Number(s):	119004
Decision under appeal	Citation: WK v NSW Trustee and Guardian [2011] NSWADT 2 Before: General Division File Number(s): 103262

REASONS FOR DECISION

1. APPEAL PANEL (K O'CONNOR, DCJ (PRESIDENT), J MILLAR (JUDICIAL MEMBER), B FIELD (NON-JUDICIAL MEMBER)): The appellant was a child, 10 years old, in March 2003 when a Supreme Court order awarding damages was made in his favour. The Supreme Court appointed the Public Trustee to administer the fund on his behalf pursuant to the (now repealed) Damages (Infants and Persons of Unsound Mind) Act 1929 .

1. The statutory office of Public Trustee has been abolished and its functions are now exercised by the new statutory office of 'NSW Trustee and Guardian': NSW Trustee and Guardian Act 2009 (the Act) commencing 1 July 2009. The statutory office of Protective Commissioner has also been abolished and its functions are now exercised by the new office. The statutory office of Public Guardian continues but the Public Guardian's staff belong administratively to the new office.

1. When the appellant reached the age of 18 years in 2010, the fund was distributed to him.

1. The appellant, represented by his father as his agent, has applied to the Tribunal for review of an investment decision made in 2008 by the Public Trustee while his damages fund was still under the Trustee's administration. The respondent has opposed the application on the ground that it is beyond the jurisdiction of the Tribunal. At first instance the Tribunal upheld the objection. The appellant now appeals.

1. The question raised by the case is whether the Tribunal is entitled to review a decision of the NSW Trustee and Guardian in exercise of the functions and responsibilities that were previously vested in the Public Trustee, at least in relation to decisions made following appointment by court order as trustee of an award made to an infant.

1. In 2003 the Tribunal acquired jurisdiction to review decisions made by, one, the Protective Commissioner in relation to the administration of the financial affairs of protected persons and, two, the Public Guardian in relation to the health, accommodation and other care needs of protected persons: as to Public Guardian, see now Guardianship Act 1987 , s 80A; as to the functions performed by the Protective Commissioner, see prior to 1 July 2009, the Protected Estates Act 1983 , s 28A and since then the Act, s 62.

1. The Tribunal below considered the effect of the combination of the three statutory offices (Public Trustee, Protective Commissioner and Public Guardian) into a single agency (with the statutory office of Public Guardian continuing). It held that the combination did not result in the functions and decisions historically those of the Public Trustee falling subject to the review jurisdiction of the Tribunal.

1. We agree with that conclusion for the reasons given by the Tribunal, and add the following.

1. Here the challenge is to a financial management decision in respect of an estate under administration. The key provision is:

62 Review by ADT of decisions by NSW Trustee under this Division

(cf PE Act, s 28A)

(1) An application may be made to the ADT for a review of a decision of the NSW Trustee that:

(a) is made in connection with the exercise of the NSW Trustee's functions under this Division, and

(b) is of a class of decision prescribed by the regulations for the purposes of this section.

(2) Subsection (1) does not apply if the decision of the NSW Trustee was made in accordance with a direction given by the Supreme Court to the NSW Trustee.

(3) An application under this section may be made by:

(a) a managed person in respect of whose estate the decision was made, or

(b) the spouse of a managed person in respect of whose estate the decision was made, or

(c) any other person whose interests are, in the opinion of the ADT, adversely affected by the decision.

1. There is no regulation made under s 62(1)(b) that is relevant. The functions vested in the respondent by sub-section (1)(a) relate to those given under 'this Division', which is Division 1 of Part 4.5 of the Act (ss 55-62). The heading of Division 1 is 'Management of Estates by NSW Trustee'. The breadth of language of the heading might have encouraged the appellant to take the view that the decision of which he complains is covered by the Division. His was an estate being managed by the office, using 'managed' in its ordinary meaning.

1. Section 56 states:

56 General management functions

(cf PE Act, s 24)

The NSW Trustee has, and may exercise, in respect of the estate of a managed person, the following functions:

(a) all functions necessary and incidental to its management and care,

(b) such other functions as the Supreme Court or the Guardianship Tribunal (in the case of a person under guardianship) may direct or authorise the NSW Trustee to have or exercise.

1. So it is apparent from s 56 read in conjunction with s 62, especially sub-section (1) and sub-section (3)(a) and (3)(b), that this part of the Act is concerned with the affairs of 'managed persons'.

1. The difficulty for the appellant's case is that 'managed persons' has a defined meaning.

1. The Division under notice appears in Part 4 of the Act. At the beginning of Part 4 the following definition of 'managed person' is given (s 38):

managed person means a protected person, managed missing person or patient whose estate is subject to management under this Act.

1. The appellant falls into none of these categories. Accordingly the Tribunal has no jurisdiction.

1. Having reached that conclusion, we think it anomalous that a trust decision of the kind put in issue in this case can be the subject of an application for review where the NSW Trustee is administering the fund of a protected person pursuant to an order of the Supreme Court or the Guardianship Tribunal, but a different position applies where the NSW Trustee is administering the fund of an infant pursuant to an order of the Supreme Court. The net effect is that an infant can only have the matter re-examined upon application to the Supreme Court.

1. Finally, we note that the written submissions of the appellant accompanying the notice of appeal appeared to challenge the Tribunal's costs decision. However, at hearing after questions from the Appeal Panel, the appellant's father, on his behalf, indicated that, if his appeal on jurisdiction was unsuccessful (as it has been) he did not challenge that order.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Administrative Decisions Tribunal.

Registrar/Associate

Decision last updated: 06 June 2011