JX v Protective Commissioner [2004] NSWADT 20 (30 January 2004)

Last Updated: 11 October 2004

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL GENERAL DIVISION

CITATION: JX v Protective Commissioner [2004] NSWADT 20


PARTIES: APPLICANT
JX
RESPONDENT
Protective Commissioner



FILE NUMBERS: 033364

HEARING DATES: 7/01/2004

SUBMISSIONS CLOSED: 07/01/2004



DECISION DATE: 30/01/2004

BEFORE: Rees N - Judicial Member





LEGISLATION CITED: Administrative Appeals Tribunal Act 1975 (Cth)
Administrative Decisions (Judicial Review) Act 1977 (Cth)
Administrative Decisions Tribunal Act 1997
District Court Rules 1973
Protected Estates Act 1983

CASES CITED: Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321
IN v Office of the Protective Commissioner [2003] NSWADT 236
IN v Protective Commissioner (No 2) [2003] NSWADT 238
P v R [2003] NSWSC 819
R v P [2001] NSWCA 473; (2001) 53 NSWLR 664

APPLICATION: Jurisdiction

MATTER FOR DECISION: Preliminary matter


APPLICANT REPRESENTATIVE: APPLICANT
In person

RESPONDENT REPRESENTATIVE: RESPONDENT
C Phang, legal officer

ORDERS: The Tribunal does not have jurisdiction to review or stay the actions of the Protective Commissioner under challenge.


Reasons for Decision:

Introduction

1 In this case the applicant, JX, has sought to review what she claims was a decision made by the Protective Commissioner to settle personal injuries litigation in the District Court of NSW in which she was the plaintiff. The proceedings were conducted by the Protective Commissioner as her tutor. JX has also sought a stay of the purported decision of the Protective Commissioner pending determination of her application for review.

Background

2 In order to deal with this application it is necessary to describe the context in which it has arisen. This summary of background events is drawn from the judgment of Barrett J in a case involving JX (P v R [2003] NSWCS 819) and from earlier decisions of this Tribunal concerning JX (IN v Office of the Protective Commissioner [2003] NSWADT 236 and IN v Protective Commissioner (No 2) [2003] NSWADT 238). These decisions are discussed below at [7] to [9].

3 JX was injured in a motor vehicle collision in 1979. She commenced proceedings, without a tutor, in the District Court in 1986. In 1990, following a hearing, judgment was entered in JX’s favour on the question of liability. Assessment of damages was adjourned in order to deal with evidence that had arisen unexpectedly at trial that JX had a pre-existing psychiatric condition that had been aggravated by the motor vehicle collision. For a variety of reasons, which included the fact that JX did not agree with the opinion of various psychiatrists that she had a pre-existing psychiatric condition which had been aggravated by the collision, the matter had not returned to the District Court for assessment of damages by 2000 when WH Parsons & Associates became the fifth firm of solicitors to accept instructions to act for JX.

4 As those solicitors found it impossible to conduct the proceedings on the basis of the instructions provided by JX, an application was made to the Supreme Court for an order pursuant to the Protected Estates Act 1983 that JX’s estate be subject to management by the Protective Commissioner. On 6 August 2001 Windeyer J made an interim order in which the Protective Commissioner was appointed as receiver and manager of JX’s estate until further order. Under that interim order the Protective Commissioner’s authority was limited to conducting the District Court personal injuries proceedings and it was subject to the condition that two psychiatric reports obtained by JX’s solicitors, but offensive to JX herself, not be served on the defendant. JX’s appeal to the Court of Appeal against the order made by Windeyer J was dismissed (see R v P [2001] NSWCA 473; (2001) 53 NSWLR 664).

5 The effect of the order made by Windeyer J was to make JX a "protected person" under the Protected Estates Act 1983 which thereby permitted the Protective Commissioner to accept appointment as JX’s tutor in the District Court proceedings pursuant to an order made in accordance with the provisions of Part 45 of the District Court Rules 1973. One of the many functions of the Protective Commissioner is to conduct legal proceedings on behalf of protected persons (see s 24(2)(o) Protected Estates Act 1983). At some later date, which is not apparent from the documents before the Tribunal, the Protective Commissioner became JX’s tutor in the District Court proceedings by virtue of the provisions of Part 45 rule 5 of the District Court Rules 1973.

6 As the order made by Windeyer J was an interim order, the Protected Estates Act application returned to the Supreme Court in 2003. On 9 September 2003, after a lengthy hearing, Barrett J made a declaration that JX was incapable of managing her affairs (P v R [2003] NSWSC 819). His Honour made orders that JX’s estate be subject to management under the Protected Estates Act and that "the Protective Commissioner be appointed without security manager of the estate of the defendant to act in relation thereto under the order and direction of the Court"(at [83]).

7 In the course of his judgment Barrett J referred to the District Court proceedings involving the motor vehicle collision which occurred in 1979:

[28] Put simply, the defendant is in a position, in relation to the District Court proceedings, where the solicitor acting for her advises (and is supported by both senior and junior counsel) that she has very good prospects of recovery of substantial damages on the basis that the 1979 accident caused psychiatric injury in the form of personality disorder, with evidence in support of that case being available from the several medical witnesses referred to; and if the case is not run on that basis, she will recover much more modest damages for physical injuries only. The defendant, for her part, is implacably opposed to the District Court case being run in the way her lawyers advise...

8 Four psychiatrists gave evidence in the proceedings before Barrett J. After summarising the evidence given by those witnesses, His Honour stated:

[55] There are, of course, differences in the medical opinions to the extent that, while Dr Bell considers the defendant psychotic, Dr Lewin’s diagnosis emphasized a long-standing personality disorder, Dr Clark referred in the witness box to the defendant’s obsessiveness and abnormal pre-occupations by which she was harming herself and Dr Russell expressed lack of confidence in the defendant’s ability to run her case because of her ongoing difficulties in trusting people and co-operating, collaborating and compromising. It is nevertheless clear from the course of the questioning of all four psychiatrists by the defendant in court that all consider her to be very significantly impaired in her social functioning and in her ability to look after herself.

[56] On the whole, the medical evidence leads me to a conclusion that the defendant is suffering from a clinical condition that affects adversely her ability to make rational decisions about where her own best interests lie. She is preoccupied with the various grievances to such an extent that they occupy centre stage in her life and absorb virtually all her energies.

9 Since the orders were made by Barrett J on 9 September 2003, JX has sought to review actions of the Protective Commissioner concerning the District Court proceedings in this Tribunal. Those actions were the refusal by the Protective Commissioner to comply with her request that the solicitors WH Parsons and Associates cease to act for her in the District Court proceedings, and the refusal by the Protective Commissioner to comply with JX’s request that the solicitors be instructed not to serve certain medical reports in those proceedings. On 28 October 2003 the Tribunal refused JX’s application for a stay of the Protective Commissioner’s actions, but directed that there be an expedited hearing of her application for review (IN v Office of the Protective Commissioner [2003] NSWADT 236). That review was heard on 30 October 2003. On 4 November 2003 the Tribunal affirmed the decisions of the Protective Commissioner (IN v Protective Commissioner (No 2) [2003] NSWADT 238).

The application to review

10 In this case JX seeks to review the decision to settle the District Court litigation arising out of the motor vehicle collision which occurred in 1979. In her written Application, under the heading ‘Reasons for application’, JX wrote:

To obtain urgent stay on the "Terms of Settlement" the OPC consented to which was listed in the District Court on 25.11.03 instead of proceeding to hearing and approved by Garling J on 28.11.03 as its not in my best interest and without any opportunity to even read the above document until after I’d given evidence or opportunity to obtain legal advice on the content which I did not understand.

11 From this and other entries on her written Application to the Tribunal, from a document which JX handed to the Tribunal, and from statements made by JX during the hearing of this matter, the Tribunal has proceeded on the understanding that JX’s primary concern is to seek to review the Protective Commissioner’s "decision" to settle the District Court litigation. JX also sought a stay of that "decision" because she believed that the settlement monies were to be paid to the Protective Commissioner in early January 2004.

12 In her written Application JX also expressed a wish, in general terms, to review other actions taken by the Protective Commissioner in other unidentified legal proceedings. She wrote:

The on going refusal to communicate with [JX] re other court proceedings before decisions are made with other parties in various proceedings before the courts with OPC representation without my knowledge and access not given to documents on OPC file without on going argument and refusal to photocopy documents/correspondence – and not replied to.

13 In her handwritten document, which was handed to the Tribunal in the course of the hearing, JX elaborated on her concerns about the settlement of the District Court litigation and the Protective Commissioner’s activities in relation to other court proceedings in which she is a party.

The Tribunal’s jurisdiction

14 Section 38(1) of the Administrative Decisions Tribunal Act 1997 (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 relevant regulation does not limit in any way the class of decisions that may be reviewed. Clause 9 of the Protected Estates Regulation 2003 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. A number of people, including "the protected person in respect of whose estate the decision was made", may seek review of the Protected Commissioner’s decisions in the Tribunal (s 28A(3)).

15 The office of Protective Commissioner is established by s 5 of the Protected Estates Act 1983. Division 3 of Part 3 of that Act, which comprises sections 24 to 28A, is headed ‘Management of estates by Protective Commissioner’. Section 24(1) vests the Protective Commissioner with all functions necessary and incidental to manage and care for the estate of "a protected person" when the management of that estate is committed to the Protective Commissioner. The Supreme Court, the Guardianship Tribunal, the Mental Health Review Tribunal and Magistrates may order, in various circumstances, that a person become "a protected person" and that the person’s estate be managed by the Protective Commissioner. Section 24(2) of the Protected Estates Act, which is expressed to operate without limiting the generality of the functions given to the Protective Commissioner by s 24(1), directs that the Protective Commissioner have a number of specific functions. One of those functions is to "bring and defend actions, suits and other proceedings, on behalf of the protected person" (s 24(2)(o)).

16 Chapter 5 of the ADT Act, which is headed ‘Process for review of reviewable decisions’, sets out procedures for applicants and administrators to follow when this Tribunal has jurisdiction to review a decision of an administrator. Section 48(1) of the ADT Act requires an "administrator" who makes a "reviewable decision" to take reasonable steps to provide an "interested person" with written notice of the "decision" and of the person’s right to have the decision reviewed. There are various exceptions to the obligation to provide notice which are set out in s 48(2). A "reviewable decision" is defined in s 8 of the ADT Act to be "a decision of an administrator that the Tribunal has jurisdiction under an enactment to review". "Interested person" is defined in s 4 of the ADT Act to mean "a person who is entitled under an enactment to make an application to the Tribunal for...a review of a reviewable decision...". In this case JX, as a "protected person" under the Protected Estates Act, is an "interested person" for the purposes of s 4 of the ADT Act (see s 28A(3) Protected Estates Act). The Protective Commissioner is clearly an "administrator" within the meaning of that term in s 9 of the ADT Act. The key issue for determination in this case is whether the action by the Protective Commissioner which JX seeks to review is a "reviewable decision".

17 The word "decision" is defined in s 6(1) of the ADT Act in a non-exhaustive fashion:

A decision includes any of the following:

(a) making, suspending, revoking or refusing to make an order or determination,

(b) giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or permission,

(c) issuing, suspending, revoking or refusing to issue a licence, authority or other instrument,

(d) imposing a condition or restriction,

(e) making a declaration, demand or requirement,

(f) retaining, or refusing to deliver up, an article,

(g) doing or refusing to do any other act or thing.

18 Section 49 of the ADT Act imposes a duty on an administrator who makes a reviewable decision to provide an interested person, on request, with written reasons for that decision. Section 50 of the ADT Act permits an administrator to decline to give reasons in certain circumstances. This Tribunal is empowered by sections 51 and 52 of the ADT Act to determine that an administrator must provide written reasons for a reviewable decision when that administrator has declined to do so.

19 The ADT Act creates the presumption that an interested person should first seek internal review of a reviewable decision that the person seeks to challenge before the Tribunal may review the decision. The process of internal review is set out in s 53 of the ADT Act. Section 55(1) of the ADT Act grants an interested person the right to apply to the Tribunal for review of a reviewable decision if a number of pre-conditions are met. One of those pre-conditions is that the interested person has sought an internal review of the decision in question. Section 55(2) of the ADT Act sets out three circumstances in which this Tribunal may permit an interested person to review a decision of an administrator in the Tribunal even thought the internal review process has not been invoked. Those circumstances are: (a) the person was not entitled to apply for an internal review, (b) the request for an internal review was late and it was rejected unreasonably by the administrator and (c) "it is necessary for the Tribunal to deal with the application in order to protect the person’s interests" and the application was made to the Tribunal within a reasonable time.

20 In this case JX has not invoked the internal review process in s 53 of the ADT Act. If the Tribunal is to proceed to determine her application for review it will be necessary for the Tribunal to depart from the presumption that the interested person first seek internal review of the decision under challenge by finding, in accordance with s 55(2)(c), that it is necessary to deal with the application in order to protect JX’s interests and that she applied to the Tribunal for review within a reasonable time of the Protective Commissioner’s challenged decision having been made. When an application for review of a reviewable decision is pending, the Tribunal has the power, in certain circumstances, to stay the operation of that decision pending determination of the review (s 60(2) and (3) ADT Act).

21 Before considering whether to invoke s 55(2)(c) of the ADT Act, and the Tribunal’s power to order a stay, it is necessary to resolve the jurisdictional issue identified at paragraph [16]. That jurisdictional issue is whether the foregoing statutory scheme vests the Tribunal with jurisdiction to review actions taken by the Protective Commissioner in the course of JX’s District Court litigation being settled. Did those actions constitute a "reviewable decision" under the ADT Act? A second jurisdictional issue is whether the Tribunal has jurisdiction to review steps taken by the Protective Commissioner in other unidentified litigation which the Protective Commissioner conducts on her behalf.

The evidence

22 The Tribunal was informed by Ms Phang that she was present in the District Court on 28 November 2003 when His Honour Judge Garling delivered a decision in which he approved of the settlement of JX’s litigation and recorded a verdict and entered judgment in her favour. Judgment was entered for the plaintiff (JX by her tutor the Protective Commissioner) in the sum of $444,000 plus costs.

23 Ms Phang advised the Tribunal that the transcript of Judge Garling’s remarks was not yet available. She provided the Tribunal with a copy of the Terms of Settlement which had been signed by counsel for both parties and with a copy of her own file note in which she had recorded the remarks made by Judge Garling. In view of the provisions of s 73(2) of the ADT Act, which declares that the Tribunal is not bound by the rules of evidence, the Tribunal accepted Ms Phang’s file note as evidence of the events which took place in the District Court on 28 November 2003.

24 Ms Phang’s file note attributes the following statements to Judge Garling:

Both [senior and junior counsel for the plaintiff] recommend these settlements.

[JX] appeared at the hearing of the approval of settlement and in accordance with an undertaking given to Mr Justice Handley of the Court of Appeal she was allowed to put forward her views as to why the settlement should not proceed.

[JX] elected to give evidence in the witness box on oath...[JX] thought this settlement not sufficient, she expressed [the view] that the economic loss alone is a million dollars...

I fully heard what she had to say and reserved my decision so that I also can independently look at the matter to see if the settlement is appropriate.

The plaintiff is sixty-eight years of age, she has had excellent advice and if the matter had proceeded to hearing the plaintiff would have been a poor witness. She was not attending medical examinations...

I carefully looked at the evidence. I have been presented with numerous medical reports and other documentation...

Having looked at it carefully I came to the conclusion that the offer is within the range and in fact it is well in the upper end of the range.

Conclusion

25 The threshold issue to determine is whether the Protective Commissioner has made a "decision" which the Tribunal has jurisdiction to review, on JX’s application, pursuant to s 55 of the ADT Act.

26 The settlement of litigation in the District Court, when a tutor has been appointed for the plaintiff, is governed by Part 45 rule 11 of the District Court Rules 1973. That rule stipulates that any settlement agreed to by the tutor must be approved by the Court before it is of any effect. In this case Judge Garling approved the Terms of Settlement signed by counsel for both parties and then formally entered verdict and judgment for the plaintiff. It was the Judge’s decision to approve the Terms of Settlement and enter verdict and judgment for the plaintiff which terminated the litigation. Quite clearly this Tribunal does not have jurisdiction to review any decisions by a District Court judge and JX has not sought to do so.

27 Cairns describes at some length the principles upon which court rules, such as Part 45 rule 11 of the District Court Rules, which require judicial approval of compromises of litigation involving infants and disabled people are based (see B Cairns, Australian Civil Procedure, 5th ed., Sydney: Law Book Co, 2002). He states (at pp 356-357):

To be binding in law a compromise of a proceeding by an infant or legally disabled person must be sanctioned by the court. The court has a special responsibility for the welfare of infants and other persons under a legal disability. Since these parties lack full legal capacity, they cannot give a full discharge to the defendant under an agreement for the compromise of a proceeding...

In deciding whether to sanction a compromise, the court considers only the benefit of the infant or disabled person. The same applies in approving a settlement before a proceeding is instituted. A compromise cannot be approved unless the disabled person and the next friend or guardian ad litem have carefully considered the compromise, and that the next friend or guardian ad litem is satisfied that the settlement is beneficial. The court has to be satisfied that those acting for the infant or disabled person have considered everything relevant to the settlement. However, the opinion of the court, not the next friend or guardian, is decisive. [emphasis added]

28 The action taken by the Protective Commissioner that was preparatory to Judge Garling’s approval of the Terms of Settlement and entry of verdict and judgment for the plaintiff was not "a decision" within the meaning of s 6(1) of the ADT Act. The most significant step taken by the Protective Commissioner was instructing counsel to sign the Terms of Settlement. That action by the Protective Commissioner was a key step in the process of resolving the litigation, but it is not a decision which may be reviewed by this Tribunal.

29 The Protective Commissioner’s action does not fall within paragraphs (a) to (f) of the definition of "a decision" for all of those various activities refer to an action which is final and which determines a person’s rights or interests. For the reasons given in paragraph [26], it was Judge Garling’s decision, rather than any action by the Protective Commissioner, which was final and determinative of JX’s rights and interests as a plaintiff in litigation.

30 Paragraph (g) of the definition of "a decision" in s 6(1) of the ADT Act requires separate consideration for it is expressed at a high level of generality. That paragraph includes within the statutory definition of "a decision": "doing or refusing to do any other act or thing". Construed literally it could encompass determinations by the Protective Commissioner to refuse to give a "protected person" a set of keys to his building or original documents held in the Commissioner’s files. That cannot have been the intention of the legislature.

31 The words of that paragraph must take their meaning from the context in which they are found and from an attempt to discern the intention of the legislature. When both are considered I am of the opinion that the actions of the Protective Commissioner which JX seeks to review do not fall within paragraph (g) of the definition of "a decision" in s 6(1) of the ADT Act. Even though s 6(1)(g) is expressed in very broad terms, and there is no reason to interpret the paragraph other than expansively, it must have limits. In this case the actions of the Protective Commissioner which JX seeks to review fall beyond those limits.

32 Whilst it is no longer appropriate to interpret a statute by slavish application of rules of construction usually identified with a Latin maxim, sometimes those rules of construction may be of considerable use when seeking to resolve doubt about the meaning of particular words. The ejusdem generis rule may be usefully employed in this instance. It means that general matters are constrained by reference to specific matters. Pearce and Geddes describe the ejusdem generis rule in the following terms:

A drafter may well not wish to spell out at length all the kinds of things or types of conduct to which an Act may apply. He or she may rest on the assumption that, having indicated the main specific matters or conduct within a broad category to which it is to apply, any general words will be read down to embrace only things or conduct falling within that category. So in specifying the animals that may be carried on a ferry, the drafter may refer to ‘horses, cows, sheep and other animals’. It would be regarded as an improper reading of the Act if it were suggested that a tiger fell within the words ‘other animals’. This is the classic example of the ejusdem generis rule – the general words are limited to apply only to animals of the same kind as those specifically mentioned. It is another way of saying that words derive their meaning from the context in which they appear. [D Pearce and R Geddes, Statutory Interpretation in Australia, 5th ed., Butterworths, Sydney, 2001 at pp 103-104]

33 In this instance paragraphs (a) to (f) of the statutory definition of "a decision" refer to decisions which may be classified as final and as determinative of a person’s rights or interests. An application of the ejusdem generis rule would result in the words "doing or refusing to do any other action or thing" in paragraph (g) being limited to final decisions which are determinative of a person’s rights or interests. Because the courts warn that the ejusdem generis rule should be employed with great caution (see the discussion of relevant cases in Pearce and Geddes at pp 107-108), its application in this case is of assistance, but not determinative, when seeking to discern the meaning of the words used in paragraph (g) of s 6(1) of the ADT Act.

34 The meaning of the word "decision" has been of considerable importance in Commonwealth administrative law for the Administrative Decisions (Judicial Review) Act 1977 (the ADJR Act) grants judicial review rights to a person aggrieved by a decision to which the Act applies (s 5 ADJR Act), and s 25 of the Administrative Appeals Tribunal Act 1975 (the AAT Act) grants jurisdiction to the Administrative Appeals Tribunal to review various decisions made in the exercise of powers conferred by Commonwealth laws. The definitions of "decision" in s 3(2) of the ADJR Act and s 3(3) of the AAT Act employ the same language as that used in s 6(1) of the ADT Act. The large amount of case law generated by this issue in Commonwealth administrative law must have been within the contemplation of the drafter when the New South Wales ADT Act was prepared for the ADT Act definition was clearly drawn from the two Commonwealth statutes.

35 The leading authority concerning the meaning of the word "decision" in Commonwealth administrative law is widely regarded as being the judgment of Mason CJ in Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321. In that case, when considering the meaning of the word "decision" in the ADJR Act, Mason CJ stated at pp 335-337:

The fact that the ADJR Act is a remedial statute providing for a review of administrative action rather than some form of appeal from final decisions disposing of issues between parties indicates that no narrow view should be taken of the word "decision"...

Nonetheless other considerations point to the word having a relatively limited field of operation. First, the reference in the definition in s 3(1) to "a decision of an administrative character...made under an enactment" indicates that a reviewable decision is a decision which a statute requires or authorizes rather than merely a step taken in the course of reasoning on the way to the making of the ultimate decision. Secondly, the examples of decision listed in the extended definition contained in s 3(2) are also indicative of a decision having the character or quality of finality, an outcome reflecting something in the nature of a determination of an application, inquiry or dispute or, in the words of Deane J, "a determination effectively resolving an actual substantive issue"...

The policy arguments do not, in my opinion, call for an answer different from that dictated by the textual and contextual considerations. That answer is that a reviewable "decision" is one for which provision is made by or under the statute. That will generally, but not always, entail a decision which is final or operative and determinative, at least in a practical sense, of the issue of fact falling for consideration. A conclusion reached as a step along the way in a course of reasoning leading to an ultimate decision would not ordinarily amount to a reviewable decision, unless the statute provided for the making of a finding or ruling on that point so that the decision, though an intermediate decision, might accurately be described as a decision under an enactment.

Another essential quality of a reviewable decision is that it be a substantive determination...

36 Enright has provided a useful summary of the many cases dealing with the meaning of the word "decision" in the ADJR Act (C Enright, Federal Administrative Law, Sydney: Federation Press, 2001 at pp 286-300). He states that a "decision" must involve the exercise of discretion and it must have effect. Enright describes the latter proposition in the following terms (at p 287):

Reason alone is enough to argue that a decision must have some effect. If it does not have effect, nothing has been "decided", so if nothing has been decided there is no decision. In having effect a decision is an "adjudication", or a "dispositive order"; it is operative or determinative; it decides or settles a question; it "effectively dispose[s] of the matter in hand; it makes "a finding or ruling on [a] point", or it chooses between two or more courses of action, outcomes or ways of proceeding. [footnotes omitted]

37 The AAT, and courts reviewing its jurisdiction, have taken a broad meaning of the word "decision" in the AAT Act. After reviewing the many cases dealing with this issue Pearce observes that: "The AAT should not become bogged down in technical arguments but should exercise its powers wherever there is a worthwhile controversy to be settled..." (D Pearce, Administrative Appeals Tribunal, Sydney: LexisNexis Butterworths, 2003 at p 24).

38 The steps taken by the Protective Commissioner in the process of settling the District Court litigation which JX seeks to review did not have, to use the words of Mason CJ, "the character or quality of finality" and they did not, in the words of Deane J, involve "a determination effectively resolving a substantive issue". In the words of Enright, those actions did not have "some effect". It was the decision of Judge Garling which was final and which effectively resolved the substantive issue, which was JX’s rights as a litigant. There is, in the words of Pearce, no "worthwhile controversy to be settled" for Judge Garling’s decision effectively finalised JX’s District Court litigation.

39 For these reasons I am of the opinion that the Tribunal does not have the jurisdiction to review the Protective Commissioner’s actions in the process which lead to the determination of the District Court litigation, by way of judicial approval of the settlement, for those actions of the Protective Commissioner did not constitute a "decision" within the meaning of that term in s 6(1) of the ADT Act. It follows that the Tribunal does not have jurisdiction to stay any actions taken by the Protective Commissioner.

40 There is one final matter which must be resolved. At paragraph [12] I referred to JX’s wish to review also actions taken by the Protective Commissioner in other unidentified legal proceedings in which he acts as her tutor. JX claimed that various steps had been taken in these proceedings without her approval.

41 There are two reasons for concluding that the Tribunal has no jurisdiction to review any actions taken by the Protective Commissioner in other legal proceedings involving JX. First, it is necessary to identify a "decision" with some precision before the Tribunal may conduct a review pursuant to s 55 of the ADT Act. JX has not done so and it has not been possible on the basis of the material before me for the Tribunal to assist her to identify "a reviewable decision". Secondly, for the reasons I gave in reaching the conclusion that the Tribunal does not have jurisdiction to review the actions of the Protective Commissioner prior to the resolution of the District Court litigation, it is difficult to envisage what actions the Protective Commissioner may take in conducting litigation on behalf of a "protected person" which may constitute "a reviewable decision" under the ADT Act.

42 Lest it be thought that JX is being denied the opportunity to review actions taken by the Protective Commissioner on the basis of some legal technicality I have set out the background to this case at considerable length in paragraphs [3] to [9] and [22] to [24]. This information reveals that JX was made a "protected person" under the Protected Estates Act after a lengthy hearing in the Supreme Court in which she gave evidence and in which Barrett J heard expert evidence from four psychiatrists. Judge Garling approved the Terms of Settlement, which had been recommended by both senior and junior counsel who had acted for JX, after hearing evidence from JX in opposition to the settlement and after retiring to read various medical reports and consider his decision. After comprehensively reviewing material placed before them by JX, senior judicial officers have determined that she was not fit to conduct her own litigation and that the proposed settlement of the District Court litigation was to her benefit. Indeed, Judge Garling described the settlement sum as being "in the upper end of the range". On any objective assessment JX has had "a fair go".

Decision

43 The decision of the Tribunal is that it does not have jurisdiction to review or stay the actions of the Protective Commissioner under challenge.