VE v Protective Commissioner [2006] NSWADT 139 (16 March 2006)

Last Updated: 11 May 2006

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL GENERAL DIVISION

CITATION: VE v Protective Commissioner [2006] NSWADT 139


PARTIES: APPLICANT
VE
RESPONDENT
Protective Commissioner



FILE NUMBERS: 063008

HEARING DATES: 16/03/2006

SUBMISSIONS CLOSED: 16/03/2006



DECISION DATE: 11/05/2006
EX TEMPORE DATE: 16/03/2006

BEFORE: Hennessy N - Magistrate (Deputy President)





LEGISLATION CITED: Protected Estates Act 1983

CASES CITED:

APPLICATION: Protected Estates Act - Protective Commissioner - powers as to property
Protective Commissioner - powers as to property

MATTER FOR DECISION: Principal matter


APPLICANT REPRESENTATIVE: APPLICANT
J Shaw, solicitor

RESPONDENT REPRESENTATIVE: RESPONDENT
C Phang, solicitor

ORDERS: 1. Application for an adjournment refused
2. Conditional stay order made on 19 January 2006 revoked
3. Application for review of decision to sell the Surfers Paradise property dismissed


Reasons for Decision:

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 These reasons are issued following a request made by the applicant pursuant to s 89 of the Administrative Decisions Tribunal Act 1997 (ADT Act) in respect of an oral decision delivered on 16 March 2006. These reasons begin with the background to the applications and the submissions from the parties. I have then inserted the text of the oral decision.

2 VE is an elderly man who married in 1998. He and his partner lived for some time in an apartment VE owned on the Surfers Paradise. VE had a stroke in 2003 which required surgery to relieve pressure on the brain. There is medical evidence that indicates that he is now moderately cognitively impaired. He has separated from this partner and proceedings were commenced in the Family Court in relation to the distribution of property. On 12 February 2004, the Guardianship Tribunal appointed the Protective Commissioner as the manager of VE’s estate. That order enabled the Protective Commissioner to conduct the Family Court litigation on behalf of VE.

3 On 22 September 2005, the Protective Commissioner decided to sell the Surfers Paradise home unit. An internal review dated 9 December 2005 affirmed that decision. VE applied to the Tribunal for a stay of the Protective Commissioner’s decision and a review of the merits of that decision. Mr Shaw initially appeared for VE’s daughter, but when it was explained that she was not a party to the proceedings, Mr Shaw agreed to the Tribunal appointing him under s 71(4) of the ADT Act to represent VE in his best interests. That provision allows the Tribunal to appoint any person the Tribunal thinks fit to represent an "incapacitated person".

4 The matter was listed to hear the stay application on 16 January 2006. It was adjourned, part heard to 19 January. The stay was granted subject to the condition that the Protective Commissioner may take all steps necessary to sell the property apart from exchanging contracts for the sale. The matter was adjourned to 17 February 2006.

5 Meanwhile, on 25 January 2006, the Family Court of Australia at Brisbane made consent orders that VE sell the Surfers Paradise property and that the proceeds of sale be applied in a certain way. VE’s daughter and her brother applied to the Family Court to review those orders and for herself and her brother to be substituted as the case guardians for VE in place of the Protective Commissioner. In the alternative VE and her brother applied for leave to intervene in the proceedings for the purpose of opposing the orders proposed by the Protective Commissioner.

6 Given the Family Court orders, the Protective Commissioner applied to the Tribunal for a revocation of the stay and for an order that the substantive application be dismissed. That application was listed for hearing on 20 February 2006 when the Tribunal made the following directions:

1) application for revocation of stay and dismissal of application for a review adjourned to 16 March 2006 at 9.15;

2) [VE’s daughter] to advise whether Family Court matter has been dealt with by 16 March, if not set down for new date otherwise substantive issue can be dealt with on 16 March.

7 On 10 March 2006 the Family Court dismissed the application from VE’s daughter and her brother and ordered them to pay the costs of both parties. VE’s daughter did not advise the Tribunal that these orders had been made prior to 16 March 2006. On that date the Tribunal heard the adjourned application to revoke the stay and to dismiss the substantive application for review. Mr Shaw applied for a short adjournment of those proceedings. The grounds for the adjournment application were that "my clients are interstate, they’re not available, they’re just not here this morning to get instructions and secondly, I haven’t seen the primary documents, the orders of the Court, the grounds and reasons for the decision of the Court." Ms Phang opposed the adjournment noting that since Mr Shaw had been appointed as VE’s best interest representative there was no need for him to obtain instructions.

8 I gave the following reasons for rejecting the adjournment application:

HER HONOUR: I’m just going to deal firstly with the adjournment application. I’m going to refuse the application for an adjournment. The reason for that is that Mr Shaw has been on notice of this matter being listed today since the last time it was before the Tribunal, that is, 14 February 2006. He’s also on notice that an application by [VE’s daughter], who is not actually a party to these proceedings, for an adjournment was refused late yesterday. I also take into account your point, Ms Phang, that Mr Shaw has been appointed under s 71(4) of the Administrative Decisions Tribunal Act 1997, to act in [VE’s] best interests, not necessarily on his instructions, and that was because of his incapacity. In that regard Mr Shaw’s concern about not being able to obtain instructions is not well founded.

9 Mr Shaw then submitted that he had been denied procedural fairness by not being given a reasonable opportunity to see the decision of the Family Court. My response to that point was that if he has not had an opportunity to read the documents, I was willing to adjourn the matter briefly to give him that opportunity. Mr Shaw responded by saying that the judgment of the Family Court was not available. My conclusion was that the judgment was irrelevant given the orders that have been made by the Family Court.

10 Ms Phang’s submission was that the Family Court orders supersede any decision the Protective Commissioner has made in relation to the sale of the property. Ms Phang tendered a letter from Michael Lynch Solicitors setting out the outcome of the proceedings in the Family Court on 10 March 2006. She also tendered a sealed copy of the Family Court orders which she had received the day before and sent to Mr Shaw and the Tribunal. Ms Phang submitted that given those orders, the Tribunal no longer had jurisdiction to review the decision of the Protective Commissioner made on 9 December 2005 to sell the Surfers Paradise property.

11 Mr Shaw opposed the application on the basis that:

"Firstly, it is inadequately supported by proper documentation and that the Tribunal cannot be satisfied, as I cannot be satisfied without having an understanding of what actually has gone on in the Family Court. Secondly, I would dispute any suggestion that there is non-compliance with the Family Court orders because as I recall them they required steps to be taken to sell the property. Now, the orders made by this Tribunal allow such steps up to a certain point and there is no evidence and there is no assertion that the point has been reached whereby a sale is imminent or an exchange of contracts is imminent. Thirdly, without going on at tedious and unnecessary length, can I just reiterate my application for an adjournment, which I acknowledge has been rejected? But I ask rhetorically, what harm can a day or so do to give people a chance to get some advice? I don’t accept, as a lawyer, that being appointed by this Tribunal under s 71(4) means that you don’t need to get instructions, you don’t need to consider medical or legal or other matters. What is a legal representative to do if appointed under that section, just make it up or just adopt some idiosyncratic view as to what I personally might think is appropriate? That’s got nothing to do with it. I need advice."

12 Ms Phang responded by saying that on the previous auction agency agreement which the Protective Commissioner signed on 23 January 2006, during the course of the conditional stay, the auction was actually going to have taken place today. Because on the last occasion the stay was continued she said the Protective Commissioner had to pull back and abandon that in order not to incur unnecessary costs on behalf of VE.

13 The following is a (slightly revised) record of the oral reasons given on 16 September 2005, dismissing the applications.

Decision

14 The first order is to refuse Mr Shaw’s application for an adjournment. The second order is to revoke the stay made on 19 January 2006 and in particular the stay order which was to the following effect:

"The decision of the Protective Commissioner to sell the Surfers Paradise property belonging to VE be stayed subject to the condition that the Protective Commissioner may take all steps necessary to sell the property apart from exchanging contracts for the sale of the property."

15 The third order I make is to dismiss the application for a review of the Protective Commissioner’s decision to sell the property.

16 The brief history of this matter is that the Protective Commissioner made a decision by internal review on 9 December 2005 to sell the Surfers Paradise property of VE. VE applied to this Tribunal for a review of that decision and for an urgent stay of the decision. Mr Shaw was appointed as representative of VE pursuant to s 71 of the Administrative Decisions Tribunal Act 1997. The role of the representative was set out in the notice of appointment dated 16 January 2006, namely, "The role of the representative is to act in the ‘best interest’ of the person he or she is representing."

17 The property of VE is also the subject of Family Court proceedings in the Brisbane registry of the Family Court and the Protective Commissioner acts for VE in those proceedings. On 25 January 2006 the Family Court made certain orders by consent including an order,

1) "That the husband" - I interpose to say that that’s VE - "forthwith do all acts and things and sign all documents necessary to sell the property (address deleted) Queensland (the Surfers Paradise unit).

2) That the husband instructs the real estate agent and his solicitor to keep the wife and her solicitors informed of the progress and marketing and sale of the Surfers Paradise unit.

3) That on settlement of the sale of the Surfers Paradise unit the husband to apply the proceeds of sale in the following order and priority:

a) to pay all costs, commissions and expenses of the sale;

b) to pay all council and water rates and maintenance and body corporate fees and levies outstanding in respect of the Surfers Paradise unit;

c) to pay the wife 15 per cent of the balance then remaining; and

d) to pay the balance to the husband."

18 I won’t read onto the record the remainder of the orders that were made by consent on that day, which number six in all. Those orders were made on 25 January 2006. Subsequently VE’s daughter applied to the Family Court to intervene in the proceedings and for some other orders. Meanwhile, the Office of the Protective Commissioner applied to this Tribunal to revoke the stay that it had made previously. That matter was adjourned pending the outcome of VE’s application to the Family Court. On 10 March 2006 the matter came before His Honour Justice Barry in the Family Court and the following orders were made:

"1) That the application in a case filed by the applicant on 1 February 2006 is dismissed,

2) the applicant is to pay the costs of the legal representatives for the respondent husband and the respondent wife, such costs to be as agreed between the parties or if not agreed as assessed by a registrar of the Family Court of Australia."

19 As I said, the applicants in that case were VE’s daughter and her brother. The other parties were VE and his ex-wife [name deleted]. The submission from Ms Phang in relation to the revocation of this order is essentially that the Family Court order made on 25 January 2006 supersedes any discrete decision that the Protective Commissioner himself had made previously to sell the Surfers Paradise property. I agree with that submission. The jurisdiction that the Administrative Decisions Tribunal has to review decisions of the Protective Commissioner, allows a person subject to a financial management order to apply directly to this Tribunal without the need for a tutor or for the Office of the Protective Commissioner to represent that person in the proceedings. That is the basis on which VE brought these proceedings in the Tribunal and the basis on which this Tribunal appointed Mr Shaw to represent him.

20 Nevertheless, in the Family Court proceedings, VE is not able to commence or defend proceedings in his own name and the Office of the Protective Commissioner as his financial manager assumes that role. The Tribunal has before it evidence of an order made by the Family Court in January this year and an order dismissing VE’s daughter’s application to intervene in those proceedings. Consequently, in my view, the Family Court order has superseded the decision that the Office of the Protective Commissioner originally made to sell the Surfers Paradise property so that the stay decision that was made pending further consideration of the substantive matter, is now redundant and the substantive application is also redundant for the same reason.

21 Mr Shaw has pressed today for an adjournment of this application, however, that application for an adjournment has been refused. The reasons which I gave briefly at the time are that Mr Shaw and his client have been on notice that this matter was listed for an adjourned application today since 14 February 2006, that despite VE’s apparent unavailability to give instructions to Mr Shaw today, Mr Shaw is acting as a representative of VE in his best interests and despite Mr Shaw’s submission that he can not inject his personal opinion into these proceedings, his role is not to do that but to act in what he perceives as VE’s best interests. The best interests of VE are not served by prolonging this matter or by contesting a decision that has now been overtaken by Family Court orders. There is no suggestion of an order of the Family Court overriding anything that the Administrative Decisions Tribunal has done, it is merely the case that another decision has been made to sell the Surfers Paradise property, making the Protective Commissioner’s decision redundant.

22 I also reject Mr Shaw’s argument that there’s been any breach of procedural fairness in this case. He asks rhetorically what difference a few days would make? The answer to that is that this matter has already been adjourned from the last occasion, that is, 14 February. The initial stay order was made on 19 January 2006, so two months have already passed in which there has been uncertainty surrounding the sale of the Surfers Paradise property and during which the Protective Commissioner is keen to proceed in accordance with the Family Court orders. There is no necessity in my view for Mr Shaw to have obtained specific instructions from VE and in any case he had an adequate opportunity to do that between 14 February and 16 March 2006. VE’s apparent unavailability today is not in my view a sufficient reason to further delay these proceedings.

23 In summary my orders are that the application for an adjournment is refused, the stay order made on 19 January 2006 is revoked and the substantive application to review the decision of the Protective Commissioner is dismissed.