WK v NSW Trustee and Guardian [2011] NSWADT 2 (10 January 2011)

Last Updated: 20 June 2011

Administrative Decisions Tribunal New South Wales

Case Title:	WK v NSW Trustee and Guardian
Medium Neutral Citation:	[2011] NSWADT 2
Hearing Date(s):	On the papers, submissions closed 14 December 2010
Decision Date:	10 January 2011
Jurisdiction:
Before:	Magistrate N Hennessy, Deputy President
Decision:	1. The applicant's application is dismissed. 2. The applicant is to pay the respondent's costs as agreed or if not agreed, as assessed in accordance with the Legal Profession Act 2004.
Catchwords:	Reviewable decision - jurisdiction - costs
Legislation Cited:	Administrative Decisions Tribunal Act 1997 Damages (Infants and Persons of Unsound Mind) Act 1929 NSW Trustee and Guardian Act 2009
Cases Cited:
Texts Cited:
Category:	Principal judgment
Parties:	WK (Applicant)
Representation
- Counsel:	Greg Laughton SC (Applicant)
- Solicitors:	Ferrys Law Firm (Applicant) Clinch Long Letherbarrow (Respondent)
File number(s):	103262
Publication Restriction:

Reasons for Decision

1 On 6 March 2003 the Supreme Court entered judgment for $1,375,000 in favour of WK, who was then 10 years old. WK had lost his sight as a result of a rare tumour which was allegedly overlooked by his doctors. Following settlement of the medical negligence proceedings, the Supreme Court ordered that the amount be paid into Court pursuant to the now repealed Damages (Infants and Persons of Unsound Mind) Act 1929 and that the balance, after deducting costs and medical expenses, be paid to the Public Trustee. The issue in these proceedings is whether the Tribunal has jurisdiction to review certain decisions made by the Public Trustee (now the New South Wales Trustee and Guardian) in the course of managing WK's funds. The issue has been determined "on the papers" following receipt of submissions from each party: Administrative Decisions Tribunal Act 1997 (ADT Act), s 76. I have concluded that the Tribunal does not have jurisdiction.

2 The Tribunal has power to review a decision if an "enactment" provides that applications may be made to it for a review of any such decision: ADT Act, s 38. Mr Laughton, on behalf of WK, accepted that the only "enactment" which could provide the Tribunal with jurisdiction is s 62(1) of the NSW Trustee and Guardian Act 2009 (NSWTG Act). That provisions states that:

(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.

3 In accordance with s 62(1), to be a reviewable decision, a decision of the NSW Trustee must be made in connection with the exercise of its functions under "this Division", that is, Division 1 of Part 4.5. Division 1 applies in respect of the estate of a "managed person that is committed to the management of the NSW Trustee: s 55. A "managed person" means a "protected person, managed missing person or patient whose estate is subject to management under" the NSWTG Act: NSWTG Act, s 38. A "protected person" means a person in respect of whom an order is in force under Part 4.2 or 4.3 or the Guardianship Act 1987 that the whole or any part of the person's estate be subject to management under this Act: NSWTG Act, s 38. No such order is in force. WK is not a managed missing person or a patient whose estate has been subject to management under the NSWTG Act, nor is he a "protected person".

4 The basis for the NSW Trustee managing WK's funds was that he was a minor when the Supreme Court entered judgment in his favour under the Damages (Infants and Persons of Unsound Mind) Act 1929. The fact that WK's is legally blind, and therefore under a "significant disability", is irrelevant to the issue for determination in these proceedings.

5 As a consequence of the NSWTG Act, the former Public Trustee and Protective Commissioner effectively merged on 1 July 2009 and the NSW Trustee and Guardian was created. Notwithstanding that merger, the new Act continues to distinguish between the functions formerly undertaken by the two entities. Section 62 applies to decisions formerly made by the Protective Commissioner when administering the estate of a "managed person". It now applies to the same decisions made by the NSW Trustee and Guardian.

6 The NSW Public Trustee and Guardian wrote to WK's representative on 1 November 2010 and again on 17 November 2010 advising that the Tribunal had no jurisdiction and that an application for costs would be made if the application was not withdrawn. The costs application is now pressed. In support of that application the NSW Public Trustee and Guardian submitted that:

a) WK has failed to identify any enactment empowering the Tribunal to hear the application and as a consequence the application has no tenable basis in fact or law;

b) in an attempt to minimise costs, two letters were written requesting that the application be withdrawn because of lack of jurisdiction;

c) WK is aware that the respondent has now distributed funds (apart from a small reserve for taxation purposes) to the applicant and a consequence the respondent does not have recourse to trust funds from which its costs could otherwise be met; and

d) although the NSW Trustee and Guardian was ready to have the jurisdictional argument heard on 30 November 2010, WK's representative sought an adjournment for the purpose of preparing written submissions which has occasioned further costs.

7 In response, WK's representative submitted that the Tribunal's jurisdiction is ambiguous and does not confine any application to managed estates which are the subject of management orders. With respect, the Tribunal's jurisdiction is confined to the estate of a "managed person" that is committed to the management of the NSW Trustee. WK is not and has never been, a "managed person" within the meaning of that term.

8 The general rule is that each party pays their own costs. The Tribunal may award costs but only if satisfied that it is fair to do so having regard to certain matters such as the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law: ADT Act, s 88(1A)(c). I have concluded that the Tribunal has no jurisdiction. While interpreting statutory provisions of this kind is undoubtedly difficult for non-lawyers, once lawyers became involved and they were put on notice of the respondent's view, it should have been patently obvious that the Tribunal had no jurisdiction. Pursuing the application when it had no tenable basis in law makes it fair to award costs.

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