IN v Office of the Protective Commissioner [2003] NSWADT 236

CITATION: IN v Office of the Protective Commissioner [2003] NSWADT 236 DIVISION: General Division APPLICANT PARTIES: IN RESPONDENT Office of the Protective Commissioner FILE NUMBER: 033301 HEARING DATES: 27/10/03 SUBMISSIONS CLOSED: 10/27/2003 DATE OF DECISION: 10/28/2003

BEFORE: Hennessy N - Magistrate (Acting President) APPLICATION: Jurisdiction - Stay of proceedings MATTER FOR DECISION: Preliminary matter Administrative Decisions Tribunal Act 1997 LEGISLATION CITED : District Court Rules 1973 Protected Estates Act 1983 Protected Estates Regulation 2003 Crockett & Anor v Roberts & Anor [2000] TASSC 148 CASES CITED: Knatchbull v Fowle (1876) 1 Ch D 604 P v R [2003] NSWSC 819 Rhodes v Swithenbank (1889) 22 QBD 577 APPLICANT REPRESENTATION: In person RESPONDENT C Phang, legal officer ORDERS: 1 The application for a stay is dismissed; 2 The matter is to be listed for an expedited hearing

Introduction 1 On 23 October 2003, the applicant (who I will refer to in these reasons as IN) filed an application for review of two decisions made by the Protective Commissioner in his capacity as her tutor in District Court proceedings. The decisions are to refuse her request that WH Parsons & Associates, solicitors cease to act in that matter and secondly to refuse her request that certain medical reports not be served on the defendant. IN seeks a stay in relation to both decisions. The initial question is whether the Tribunal has jurisdiction to review the decisions. Background 2 WH Parsons & Associates have been acting for IN in personal injury proceedings in the District Court since early 2000. On 6 August 2001 the Supreme Court appointed the Protective Commissioner as Receiver and Manager of IN's estate for the purposes of conducting the District Court proceedings. In 2003, that firm applied to the Supreme Court for further orders because they believed that IN was incapable of giving them informed and rational instructions in her interests. On 9 September 2003, the Supreme Court found that IN was incapable of managing her affairs, and ordered that the Protective Commissioner be appointed to manage her estate under the Protected Estates Act 1983: see P v R [2003] NSWSC 819. 3 The District Court Rules 1973 (the Rules) state that by virtue of the Supreme Court having made that order, the Protective Commissioner becomes IN's "curator". (Part 1 rule 4 of the District Court Rules.) As curator, the Protective Commissioner has authority under the Protected Estates Act 1983 to bring or defend proceedings on behalf of IN. (Pt 45 r 5(1).) In accordance with Pt 45 r 5(4) of the Rules once the curator has filed the necessary documentation with the District Court he becomes the person's tutor. 4 The District Court proceedings are listed for hearing on 17 November 2003. Consequently there is some urgency in relation to this application. Legislative basis for review 5 Section 28A of the Protected Estates Act 1983 gives the Tribunal jurisdiction to review a broad range of decisions made by the Protective Commissioner. It states that: (1) An application may be made to the ADT for a review of a decision of the Protective Commissioner that: (a) is made in connection with the exercise of the Protective Commissioner'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 by the Protective Commissioner was made in accordance with a direction given by the Court to the Protective Commissioner. (3) An application under this section may be made by: (a) the protected person in respect of whose estate the decision was made, or (b) the spouse of the protected person, or (c) any other person whose interests are, in the opinion of the ADT, adversely affected by the decision. 6 The class of decisions prescribed by the Protected Estates Regulation 2003 does not limit the range of decisions which would otherwise be reviewable. Clause 9 states 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 are prescribed for the purposes of section 28A of the Act. 7 Consequently the Tribunal has power to review any decision of the Protective Commissioner made "in connection with" any function exercised under Division 3 Part 3. The relevant parts of that Division in relation to these proceedings are s 24 and s 25. So far as is relevant, those sections state: 24. Powers as to property (1) In respect of the estate of a protected person the management of which is committed to the Protective Commissioner, the Protective Commissioner shall have, and may exercise: (a) all functions necessary and incidental to its management and care, and (b) such other functions as the Court may direct or authorise the Protective Commissioner to have or exercise. (2) Without limiting the generality of subsection (1) but subject to subsection (3), the Protective Commissioner shall have, and may exercise, the following functions in respect of the estate of a protected person the management of which is committed to the Protective Commissioner, that is to say, the Protective Commissioner may: (a) … (o) bring and defend actions, suits and other proceedings, on behalf of the protected person, 25. Power to employ agents (1) The Protective Commissioner may, instead of acting personally in the management of the estate of a protected person, employ and pay an agent, whether being a bank, solicitor, stockbroker or other person, to transact any business or do any act required to be transacted or done in the administration and management of the estate. (2) The Protective Commissioner shall not be responsible for the default of any agent employed as referred to in subsection (1). 8 Consequently, the Tribunal has power to review a decision of the Protective Commissioner made "in connection with" any function necessary and incidental to the management and care of the estate. Those functions include bringing and defending proceedings on behalf of the protected person and employing a solicitor to act as agent. Appointing solicitors and providing instructions to them on behalf of the protected person, are decisions made "in connection with" the Protective Commissioner's functions under Part 3 Division 3. 9 The conduct of proceedings by a tutor is governed by the District Court Rules 1973, (the Rules). Pt 45 rule 3 states that: (1) Subject to the rules, where a disable person is a party to any proceedings, anything which would, if he were not a disable person, be required or authorized by the rules to be done by him shall or may be done by his tutor. (2) a tutor must act by a solicitor. 10 With respect to the conduct of the proceedings, the tutor has full power and authority and may give any necessary consent. (See Knatchbull v Fowle (1876) 1 Ch D 604.) In addition, all that the tutor does must be done for the benefit of the person under disability. (See Rhodes v Swithenbank (1889) 22 QBD 577.) The rationale for the rule is that a person under disability cannot bind himself or herself for costs, nor does he or she have the capacity to appoint and instruct an agent. (Crockett & Anor v Roberts & Anor [2000] TASSC 148 (19 October 2000).) 11 With the enactment of s 28A of the Protected Estates Act 1983 the legislature has given the Tribunal power to review virtually any decision made by the Protective Commissioner in relation to the administration of the protected person's estate, whether in his capacity as tutor or otherwise. While that jurisdiction empowers the protected person and makes the Protective Commissioner more accountable, it may also unduly delay and complicate litigation conducted on behalf of a protected person. Nevertheless, parliament's intention is clear and I find that the Tribunal may review the decisions which are the subject of this application. Stay application 12 Given that the District Court proceedings are listed for hearing on 17 November 2003, IN applied for an urgent stay of the decisions. The Tribunal has power to stay a decision under s 60 of the Administrative Decisions Tribunal Act 1997 (ADT Act). That section states that: (1) Subject to this section, an application to the Tribunal for a review of a reviewable decision does not affect the operation of the decision under review or prevent the taking of action to implement that decision. (2) On the application of any party to proceedings for an application for a review of a reviewable decision, the Tribunal may make such orders staying or otherwise affecting the operation of the decision under review as it considers appropriate to secure the effectiveness of the determination of the application. (3) The Tribunal may make an order under this section only if it considers that it is desirable to do so after taking into account: (a) the interests of any persons who may be affected by the determination of the application, and (b) any submission made by or on behalf of the administrator who made the decision to which the application relates, and (c) the public interest. (4) While an order is in force under this section (including an order that has previously been varied on one or more occasions under this subsection), the Tribunal may, on application by a party to the proceedings, vary or revoke the order by another order. 13 The two decisions under review are to refuse to terminate WH Parsons & Associates as the solicitors with the conduct of IN's District Court proceedings and to serve two medical reports on the defendant in those proceedings. The purpose of a stay is generally to preserve the status quo pending a final decision so that no irreparable harm is caused to the applicant prior to the Tribunal hearing. The decision to refuse to terminate WH Parsons & Associates maintains the status quo. It is not a decision which can be postponed until the Tribunal decides whether the decision is the "correct and preferable" decision. (See s 63 of the ADT Act.) Consequently it is not possible or appropriate to grant a stay of that decision. 14 At the hearing on 27 October 2003, IN informed the Tribunal that the medical reports which she did not want the solicitors to serve on the defendant, have now been served. If the Tribunal ultimately finds that the decision to serve those reports is not the correct decision, then they can be withdrawn and no irreparable harm will have been done to the applicant's case. Orders 1. The application for a stay is dismissed. 2. The matter is to be listed for an expedited hearing.