JL v Protective Commissioner [2004] NSWADT 39 (24 February 2004)

Last Updated: 16 April 2004

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL GENERAL DIVISION

CITATION: JL v Protective Commissioner [2004] NSWADT 39


PARTIES: APPLICANT
JL
RESPONDENT
Protective Commissioner



FILE NUMBERS: 033357

HEARING DATES: 23/12/2003

SUBMISSIONS CLOSED: 23/12/2003



DECISION DATE: 24/02/2004

BEFORE: Higgins S - Judicial Member





LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Protected Estates Act 1983

CASES CITED:

APPLICATION: Stay of proceedings

MATTER FOR DECISION: Principal matter


APPLICANT REPRESENTATIVE: APPLICANT
In person

RESPONDENT REPRESENTATIVE: RESPONDENT
C Phang, solicitor

ORDERS: Orders made: 23 December 2003
1.JL’s application for an urgent stay is refused as the Commissioner has made no decision in respect of his wife’s property.
2.JL’s application for a review of the Protective Commissioner’s decision to sell or lease his wife’s property is dismissed under s.73(5)(h) of the Administrative Decisions Tribunal Act 1997 as the application is misconceived.


Reasons for Decision:

1 On 19 December 2003, JL lodged an application with the Tribunal seeking review of a decision by the Protective Commissioner to sell or lease property registered in the name of his wife. JL’s wife is the subject of a guardianship order and the Protective Commissioner has been appointed the manager of her estate. The estate of JL’s wife includes a house ("the property"), which adjoins the house lived in and owned by JL. This adjoining house is also where JL and his wife lived for many years, prior to JL’s wife being placed into a nursing home.

2 On 19 December 2003, JL, also lodged an application for an urgent stay of the decision of the Protective Commissioner.

3 JL’s application for a stay was heard on 23 December 2003. JL was assisted by an interpreter throughout the proceedings on this day.

4 At the hearing, the Tribunal had before it a letter, addressed to JL, from the Protective Commissioner, dated 14 November 2003. This letter was the basis on which JL had made his applications. The Tribunal was also provided with a copy of the order and reasons of decision of the Guardianship Tribunal, dated 31 October 2003 concerning JL’s wife. The reasons for decision made reference to the financial management orders that had previously been made by the Guardianship Tribunal in respect of the estate of JL’s wife.

5 After hearing submissions from Ms Phang, who appeared on behalf of the Protective Commissioner, and submissions from JL the Tribunal ordered that JL’s application for a stay be refused.

6 On an application by Ms Phang, the Tribunal also dismissed JL’s application for review under s.73(5)(h) of the Administrative Decisions Tribunal Act, 1997 on the grounds that the application was misconceived. The basis for both decisions was the Tribunal’s finding that JL’s application was premature as the Protective Commissioner had in fact not made a decision to sell or lease the property of JL’s wife.

7 Subsequently, a request was made for written reasons for decision pursuant to s.89 of the Administrative Decisions Tribunal Act, 1997. These are the Tribunal’s written reasons for decision.

8 As mentioned above, JL’s applications were based on a letter he received from the Protective Commissioner, dated 14 November 2003. That letter, so far as is relevant, states the following:

"I refer to our two meetings yesterday, regarding your wife,....

As discussed yesterday, our office has been appointed to manage [name] estate and affairs, following a management order made on 31/10/03.

As you are aware, [name] has been resident of [name] hostel for approximately four years. A bond of $40,000 was requested when she first became a resident of that hostel. As [name] did not have the available funds, her former financial managers considered the sale of her home, to raise those funds. The sale of the property was later retracted, due to your marriage to [name] and by you placing a caveat on that property.

Should the Office of the Public Guardian be appointed with an accommodation function, then we will need to await a decision about [name] permanent accommodation, before we can consider the future of [name] property. Whilst we can appreciate your wish not to sell [name] property, funds will be required to meet [name] debts and ongoing financial obligations. We will advise you of these in due course, when we have a clearer understanding of them, ourselves.

In the meantime, and as advised yesterday, our Office will be proceeding with a sales/leasing report on your wife’s property. A local real estate agent has been appointed for this purpose. A property inspector from our office will also be attending during this inspection, so as to comment on any repair work required to the property and to conduct a general inspection of it. I have asked our property inspector to invite you to attend during this inspection. He will be in contact with you when a date is arranged. .....".

9 JL and his wife are very elderly. They were married for many years and have no children. At some time they were divorced but re-married in October 2001.

10 On 10 February 2000, the Guardianship Tribunal made both a guardianship and financial management order in relation to JL’s wife. The financial management order was a final order in that the management of JL’s wife’s estate was committed to the Protective Commissioner. However, the Protective Commissioner was given a supervisory role over private managers that were appointed by the Tribunal. Those private managers were relatives of JL’s wife.

11 After JL and his wife remarried in October 2001, the relatives of JL’s wife commenced proceedings in the Family Court seeking to have the marriage annulled. At about the same time JL made various applications to the Guardianship Tribunal seeking review of the then existing guardian and also the removal of the Protective Commissioner as the financial manager of his wife’s estate. It would appear that this application was subsequently abandoned and a new application was made seeking an order that he be substituted as private manager instead of his wife’s relatives.

12 On 31 October 2003, the Guardianship Tribunal ruled out the applications of LJ and the relatives of JL’s wife as private managers of the estate of JL’s wife. The Guardianship Tribunal ruled that the Protective Commissioner was to become the sole manager of her estate pursuant to the orders that had been made previously and that no private managers were to be appointed.

13 Section 24(2) of the Protected Estates Act, 1983 sets out the functions of the Protective Commissioner in respect of the estate of a protected person, the management of which is committed to the Protective Commissioner. These functions include the granting of a lease and the sale of real and personal property.

14 Section 28A of the Protected Estates Act, 1983 provides that specified persons, including the spouse of the protected person, may make an application to this Tribunal for a review of a decision of the Protective Commissioner that is made in connection with the exercise of the Commissioner’s functions under Division 3 of Part 3 of that Act and is of a class of decisions prescribed by the regulations for the purposes of the section. Clause 8A of the Protected Estates Regulation, 1995 provides that a decision made by the Protective Commissioner in connection with the exercise of his functions under Division 3 of Part 3 of the Act are prescribed for the purposes of s.28A of the Act. Section 24 of the Protected Estates Act, 1983 comes within Division 3 of Part 3 of the Act.

15 Accordingly, a decision by the Protective Commissioner to sell or lease the property of JL’s wife is a decision which is reviewable by the Tribunal on an application of JL (see also s.38(1) of the Administrative Decisions Tribunal Act, 1997). A decision to obtain a sales/lease report is arguably a decision that is related to such a decision. However, in the opinion of the Tribunal, on the proper construction of s. 28A of the Protected Estates Act, 1983, that section does not include decisions of this type. That is, the decision which is "connected" with the exercise of the functions the Protective Commissioner under s. 24 of the Act is limited to those matters specified in that section: e.g. a decision to sell or lease the property of a protected person.

16 For the reasons stated above, the issue in JL’s applications was whether the Protective Commissioner had in fact made a decision to sell or lease the property of JL’s wife.

17 Ms Phang informed the Tribunal that the Protective Commissioner had not made any decision in respect of the sale or lease of the property of JL’s wife. She explained that following the orders of the Guardianship Tribunal on 31 October 2003, the Protective Commissioner had several meetings with JL during which he sought to explain to JL the financial commitments of his wife and how they may need to be met out of property owned by his wife. It was in this context that the lease and sale of his wife’s property was discussed. As part of those discussions the Protective Commissioner advised JL that he would seeking a sales/leasing report on his wife’s property from a local real estate agent.

18 Ms Phang went on to state that the Commissioner’s letter of 14 November 2003, was a letter confirming the discussions that the Protective Commissioner had had with JL and that it was not a decision by the Protective Commissioner to lease or sell his wife’s property. Such a decision had not yet been made and would only be made after the sales/leasing report was obtained and also following further consultation with JL. Furthermore, JL would be advised in writing if such a decision was ultimately made. Accordingly, Ms Phang submitted that JL’s application for review was premature. Furthermore, she submitted that there was no reviewable decision that could be stayed by the Tribunal.

19 On the material before the Tribunal and having regard to the terms of the Protective Commissioner’s letter of 14 November 2003, the Tribunal finds that as a matter of fact the Protective Commissioner has made no decision to sell or lease the property of JL’s wife. The Tribunal understands how JL may have misconceived the contents of the letter and it notes the undertaking of the Protective Commissioner, through Ms Phang, to keep JL informed of his decision making process in this regard and advise him in writing of any decision that is ultimately made.

20 For the reasons stated above the Tribunal orders:

1. JL’s application for an urgent stay is refused as the Commissioner has made no decision in respect of his wife’s property.

2. JL’s application for a review of the Protective Commissioner’s decision to sell or lease his wife’s property is dismissed under s.73(5)(h) of the Administrative Decisions Tribunal Act as the application is misconceived.