CITATION: U v Protective Commissioner [2007] NSWADT 238 DIVISION: General Division APPLICANT PARTIES: U RESPONDENT Protective Commissioner FILE NUMBER: 073109 HEARING DATES: 15 June 2007 SUBMISSIONS CLOSED: 17 August 2007 DATE OF DECISION: 5 October 2007 BEFORE: Leal S - Judicial Member CATCHWORDS: Protected Estates Act - Protective Commissioner - power to employ agents - Protective Commissioner - power to employ agents MATTER FOR DECISION: Principal matter Administrative Decisions Tribunal Act 1997 LEGISLATION CITED : Protected Estates Act 1983 Protected Estates Regulation 2003 APPLICANT In person REPRESENTATION: RESPONDENT C Phang, solicitor ORDERS: The decision that attempts be made to secure more localised, appropriate and skilled family law representation for U as an alternative to the use of either Moss Krouk & Associates or Mark Flynn & Associates Pty Ltd is affirmed. 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 Background 1 U is a 54 year old woman who was diagnosed with Huntington's disease in July 2001. In 2005, the Guardianship Tribunal appointed a private manager to manage U's estate. In 2006, the private manager advised the Protective Commissioner that she wished to resign as private financial manager and on 26 September 2006, the Guardianship Tribunal revoked the appointment of the private manager and instead committed U's estate to the Protective Commissioner. 2 U is involved in a family law property settlement matter with her ex-husband. Mark Flynn & Associates has represented U in relation to the family law proceedings since September 2006. On 2 February 2007, the Protective Commissioner made a decision to engage Mr Krouk of Moss Krouk & Associates to represent U in the family law matter rather than retain Mr Mark Flynn of Mark Flynn & Associates. The decision was made to engage Mr Krouk on the basis that, unlike Mr Flynn, he is a family law specialist lawyer who is included on the Legal Services Panel of the Office of the Protective Commissioner. 3 In requesting an internal review of this decision, U expressed her concern that as Mr Krouk is based in Sydney, she would not be able to see him personally but would instead have to rely on telephone contact. She said that she would prefer to have a locally based solicitor. 4 The internal review of this decision was finalised on 19 March 2006. In making his decision, the internal reviewer took into account U's request for a locally based solicitor. He also took into account the fact that the Office of the Protective Commissioner had instigated proceedings against Mr Flynn in relation to alleged professional negligence or misconduct with respect to another client's estate and that the matter had been settled, with the settlement terms remaining confidential. 5 The internal reviewer set aside the original decision of the Office of the Protective Commissioner, replacing it instead with the decision that attempts be made to secure more localised, appropriate and skilled family law representation for U as an alternative to the use of either Moss Krouk & Associates or Mark Flynn & Associates Pty Ltd. Review decision 6 U applied to this Tribunal for review of the above decision under s 28A of the Protected Estates Act 1983. Under s 28A(3)(a), an application for a review of such a decision by the Protective Commissioner can be made to the Tribunal by a protected person in respect of whose estate the decision was made. Accordingly, U is entitled to bring this application for review. Jurisdiction 7 Section 28A of the Protected Estates Act 1983 gives the Administrative Decisions Tribunal ("the Tribunal") the power to review a decision of the Protective Commissioner that is made in connection with the exercise of the Protective Commissioner's functions and is a class of decision prescribed by the regulations for the purposes of this section. 8 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. 9 Consequently the Tribunal has power to review any decision of the Protective Commissioner made "in connection with" any function exercised under Division 3 of Part 3 of the Act. 10 Section 25 of the Act is headed 'power to employ agents' and states that The Protective Commissioner may, instead of acting personally in the management of the estate of a protected person or protected missing person, employ and pay an agent, whether being a bank, solicitor, stockbrocker 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. 11 Accordingly, the Protective Commissioner has the power to deal with the retention of solicitors in the management of the estate of a protected person. Issue 12 The only issue in this matter is whether the decision of the internal reviewer of the Office of the Protective Commissioner that 'attempts be made to secure more localised, appropriate and skilled family law representation for U as an alternative to the use of either Moss Krouk & Associates or Mark Flynn & Associates Pty Ltd' was the 'correct and preferable decision' within the meaning of s63 of the Administrative Decisions Tribunal Act 1997. The Tribunal is to make this assessment on the basis of any relevant factual material and any applicable written or unwritten law. Evidence 13 A hearing was held before this Tribunal on 15 June 2007 and on 20 July 2007. Ms Phang appeared on behalf of the Office of the Protective Commissioner. U, who was present at the hearing by telephone, represented herself. She was assisted by her friend, Mr K Smith. 14 Ms Phang submitted that it was the correct and preferable decision to seek alternative representative to that of Mark Flynn for the following reasons: Mr Flynn is not included on the Legal Services Panel of the Office of the Protective Commissioner; Mr Flynn is not an accredited specialist in family law; Given that Mr Flynn was the subject of an action in professional negligence commenced by the Office of the Protective Commissioner, the Protective Commissioner is not confident in Mr Flynn's ability to conduct U's matter; Mr Flynn's charge-out rate is higher than that of other solicitors considered. 15 U submitted that it would be appropriate for the Office of the Protective Commissioner to continue to retain Mr Flynn as she has seen him on numerous occasions and he 'knows all about her.' He would be able to deal with all her matters – not only her family law matter but also her probate matter. According to U and Mr Smith, Mr Flynn has a very strong reputation and is an effective lawyer who has a high rate of success in his matters. 16 In relation to the negligence matter, U noted that no details had been given as to its outcome and that Mr Flynn remains a practising lawyer who, according to Mr Smith, continues to be recommended by the Law Society of NSW. 17 At the Tribunal hearing on 20 July 2007, Mr Flynn gave evidence by telephone. He stated that he remains happy to continue to act for U. He confirmed that he is an accredited specialist in personal injury and that he continues to receive referrals from the Law Society of NSW. 18 Mr Flynn confirmed that U had discussed the possibility of seeking a revocation of the financial management order made against her by the Guardianship Tribunal but that he had been unable to pursue this matter given that the Office of the Protective Commissioner had refused to continue to retain him. He also confirmed that he had been undertaking probate work and family law work on U's behalf prior to the termination of his retainer by the Office of the Protective Commissioner. He confirmed that whilst he is not an accredited specialist in family law, he receives numerous referrals for this type of work. In relation to his charge-out rate, Mr Flynn told the Tribunal that he had never been asked to review his rates and would have been happy to discuss his fees. 19 Mr Flynn told the Tribunal that a finding of professional misconduct had been confirmed against him on 16 July 2007 and that he had received a fine of $4000. 20 Mr Bleasdale, Assistant Director of Liaison and Co-ordination at the Office of the Protective Commissioner, gave evidence to the Tribunal. He advised that the Office of the Protective Commissioner has moved from a system of Estate Managers to one of a Client Liaison and Specialist branch. This means that a client is allocated to a team rather than to an individual person. 21 In relation to the financial management order that is in place against U, Mr Bleasdale confirmed that the Office of the Protective Commissioner would send all details to U in relation to her rights to apply for a review or revocation of the order. Mr Bleasdale also confirmed that a financial plan for U would be undertaken by the Office of the Protective Commissioner and that U would be consulted in relation to this plan. Mr Bleasdale told the Tribunal that he would make inquiries at the Office of the Protective Commissioner in relation to requests made by U to be allocated money to buy a computer for her son and to undertake repairs to her house. Findings and reasons 22 The Tribunal is satisfied that Mr Flynn of Mark Flynn & Associates has U's confidence as a lawyer and would be able to handle all U's legal matters. He gave open and forthright evidence to the Tribunal and was clearly apprised of all U's legal matters. 23 It is important that any legal representative retained to deal with U's affairs be able to deal with all her legal matters. This would include advising on any application to revoke or review the financial management order made by the Guardianship Tribunal in relation to U. On the basis of the evidence given to the Tribunal, it would appear that the restructure of the Office of the Protective Commissioner means that each of U's legal matters would now be allocated to a different part of the Office. I am of the view that it would be desirable to have U's matters centralised in one area, namely with a lawyer retained to deal with her matters. 24 In light of the fact that a finding of professional misconduct has been confirmed against Mr Flynn in relation to work done for another client of the Office of the Protective Commissioner, I agree that it would be inappropriate for the Office of the Protective Commissioner to retain him. The Office of the Protective Commissioner needs to have confidence in those agents employed to assist in the management of a client's estate. I agree that the recent finding against Mr Flynn might further diminish any confidence that the Office of the Protective Commissioner has in Mr Flynn. 25 Given that Mr Krouk practises in Sydney and that U would therefore not be able to have face-to-face appointments with him, I agree with both U and with the internal reviewer that he would not be an appropriate solicitor to retain and that a locally based solicitor would be more appropriate. 26 For these reasons, I agree with the decision made by the internal reviewer that attempts be made to secure more localised, appropriate and skilled family law representation for U as an alternative to the use of either Moss Krouk & Associates or Mark Flynn & Associates Pty Ltd. It is, in my view, the correct and preferable decision. 27 I would suggest that in choosing such alternative representation, consideration be given to U's views and to choosing a solicitor who would not only be able to deal with U's family law matters but also her probate matters and any matters that may arise in relation to the financial management order that is currently in place against her. Order The decision that attempts be made to secure more localised, appropriate and skilled family law representation for U as an alternative to the use of either Moss Krouk & Associates or Mark Flynn & Associates Pty Ltd is affirmed. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.