CITATION: LZ v Protective Commissioner [2006] NSWADT 248 DIVISION: General Division APPLICANT PARTIES: LZ RESPONDENT Protective Commissioner FILE NUMBER: 063185 HEARING DATES: 28/06/2006 SUBMISSIONS CLOSED: 06/28/2006 EXTEMPORE DECISION DATE: 06/28/2006 DATE OF DECISION: 08/17/2006 BEFORE: O'Connor K - DCJ (President) CATCHWORDS: Late application to the Tribunal MATTER FOR DECISION: Principal matter Administrative Decisions Tribunal (General) Regulation 1998 LEGISLATION CITED : Administrative Decisions Tribunal (Interim) Rules 1998 Administrative Decisions Tribunal Act 1997 APPLICANT In person REPRESENTATION: RESPONDENT C Phang, solicitor ORDERS: 1. Application for review out of time; 2. Leave to proceed is not granted REASONS FOR DECISION – ORAL (REVISED) 1 The Tribunal has before it an application for review of a decision of the Protective Commissioner. The decision is dated 5 January 2006 and the decision dealt with two matters: · The refusal of an application by the protected person, LZ, for $55,000 to be released to her for her to use for religious purposes and · The dismissal of an objection by LZ to the building of security fence around her property. 2 The Protective Commissioner objected to the Tribunal dealing with the present application for review on the basis that it had been filed out of time. Relevant Provisions 3 The Administrative Decisions Tribunal Act 1997, s 55(1)(d) provides: ' 55 When can an application for a review be made? (1) A person may apply to the Tribunal for a review of a reviewable decision only if: … (d) the application is made within such period as may be prescribed by the rules of the Tribunal following the date on which the internal review is taken to have been finalised under section 53 (9).' 4 Rule 15(3), Administrative Decisions Tribunal (Interim) Rules 1998 under Administrative Decisions Tribunal Regulation 1998 prescribe 28 days for filing 'from the day on which an internal review is taken to have been finalised under section 53 (9) of the Act'. 5 Section 53 deals with internal review. Section 53(6) and s 53(9) provide: ' (6) Notice of result of review and appeal rights As soon as practicable (or in any event within 21 days) after the completion of an internal review of a decision, the administrator must notify the applicant in writing of: (a) the outcome of the internal review, and (b) the reasons for the decision in the internal review, and (c) the right of the person to have the decision reviewed by the Tribunal. … (9) When an internal review is finalised An internal review is taken to be finalised if: (a) the applicant is notified of the outcome of the review under subsection (6), or (b) the applicant is not notified of the outcome of the review within 21 days after the application for the review is lodged (or such other period as the administrator and person agree on).' 6 Section 57 of the Act provides: ' 57 Late applications to Tribunal (1) Despite section 55 (1) (d), the Tribunal may, on application in writing by an interested person seeking to make a late application to the Tribunal, extend the time for the making by that person of an application if the Tribunal is of the opinion that the person has provided a reasonable explanation for the delay in making the application. (2) The time for making an application for a review of a reviewable decision may be extended under subsection (1) although that time has expired. (3) In this section, late application means an application not made within the time prescribed by the rules of the Tribunal (or prescribed by or under the enactment under which the application is made).' Consideration of Respondent's Objection 7 The Commissioner says its records show that the decision was dispatched on 6 January 2006 and in the ordinary course of the mail would have been received by LZ a few days later. 8 LZ says she did not receive the decision until 3 April 2006 and filed in time on 1 May 2006. So, if LZ's account is correct she has filed in time. If the Protective Commissioner's account is correct she has filed out of time. 9 So the first matter I have got to make a decision on, is, simply what the facts are in relation to that issue. 10 Mr Gulline (the officer in the Office of the Protective Commissioner responsible for managing LZ's estate), attended today, at my request, this dispute having first been raised on 30 May 2006. He referred the Tribunal to a file note of a telephone conversation with LZ that he had made, he says on 17 January 2006. It documented various issues that exist between LZ and the Office about the management of her estate. In particular, there is a paragraph in that file note that she questioned the decision to deny her the $55,000 and recording that he referred her to her review rights. This is put forward as an indication from which the Tribunal can draw an inference that LZ had received the letter of decision dated 6 January 2006, and was aware of the decision. Therefore, at this point, her time to apply for review was running. Possibly, it also enables an inference to be drawn that she was actively discussing questions of review of the decision. 11 LZ denies that she had received the letter. She does not deny the possibility of the occurrence of a conversation on 17 January 2006 with Mr Gulline. But her version of the matter is that these were ongoing issues between her and the Office. She says that she would have simply been discussing what she understood to be their denial of her claim in a context where she was not aware that a formal decision had been reached. 12 So, I am really asked to form a view as to whether or not she was notified. One of the points that LZ makes is that the agency has no independent record in the way, for instance, of some sort of book registering outgoing mail, which records that it sent the mail or with some evidence of receipt from the post office. 13 What I do have is the file copy letter dated 6 January 2006, together with an electronic file note recording the fact of the decision of 6 January 2006 and the fact that it passed through the Office of the Protective Commissioner himself (Mr K Gabb), who takes responsibility for signing out all internal review decisions. I have also received evidence from Mr Gulline of the usual business practices of the Office as to the recording of its activities. He explained, in particular, that the date field that appears in these electronic file note records is an unalterable date field. It can only record the date of the day on which the input activity creating the note took place. I accept that evidence. It settles, beyond doubt, that the relevant electronic note was, in fact, entered in the system on 6 January 2006 and similarly the file note that he made was entered into the system on 17 January and is absolutely contemporaneous. 14 What is notable from the questions that LZ asked Mr Gulline today about the relationship between her and Mr Gulline is that it is a highly interactive relationship. 15 I accept that you, LZ, have been confined now by the Office to making your communications on a Tuesday. It is, I think, clear that in the period 2004 and 2005, you were frequently in contact with the Office on these issues. 16 That seems to me to point towards, rather than away from, the likelihood that you would have been keeping track, closely, of decisions that were being taken in relation to your application for internal review. You yourself have gone, in your questions today, through various inquiries that were made in and around November of the Office. You have referred to your desire, obviously, to be able to obtain this money and expend it in the way you wished. 17 So, it seems to me that you were well aware that a formal decision was to be taken at some point. This dispute was at the internal review stage. It seems to me highly likely that the conversation on 17 January did occur on the back of a formal communication to you of an internal review decision. Now – and it may be that you cannot recall all of the details precisely – it seems to me that the inference that the Tribunal should draw is that you were notified in the usual way of a decision. 18 On the other hand, I certainly think that it would be preferable if the Office did communicate any formal decisions to LZ by a means in future that does not give rise to disputes of this sort. It would be better if the communication of the decision were the subject of some sort of corroborative records of an independent kind, rather than having us to engage in proceedings of this kind. They have involved the difficult situation of Mr Gulline having to give evidence and LZ having to give evidence. 19 My finding is that the decision was communicated in the ordinary course and received by LZ. Therefore the present application is out of time. 20 I note that Mr Gulline did confirm that you, LZ, did ask him for a copy of the decision at a later time. He confirms that he sent it out and you confirm, basically, that it was received on or about 29 March 2006 at the post office and that you picked it up on 3 April 2006. 21 The next issue is the question of whether leave to apply for review out of time should be granted. I have asked the Protective Commissioner to advise me what the prejudice may be that would flow from nevertheless allowing this matter to proceed. I have also given some consideration to what the likelihood is of success of your application if it does proceed and I have also given consideration to the contents of the internal review decision as it relates to the protection of your interests. It seems to me that they are the factors that one should take into account on a leave application of this kind. 22 I think also, when dealing with protected persons in particular, some acknowledgement has to be made of the possibility that these persons may have conditions which may themselves, at times, contribute to these persons not being timely in their response to decisions. I am not saying you were not timely, LZ, but I am just saying, for the future, if these matters come before the Tribunal that some understanding has to be shown, I think, of the situation that often protected persons have some limitations on their ordinary capacity – as reflected, to some extent, in the fact that protective orders have been made restricting their ability to manage their own affairs. So, I do not want to be seen as taking a mechanical view of the question of whether or not someone is coming here out of time. 23 One of the concerns I have, LZ, is that it seems to me that there is little likelihood that the decision in relation to the $55,000 would be reversed. 24 The reason I say that is that the present state of your capital fund, as I understand it, is approximately $126,000. I think it is not at all likely that the Tribunal could agree to disperse $55,000 in the way you desire thus leaving the fund with only $70,000, when one of the statements that is made in the internal review decision is that the repairs and maintenance required to your property may cost $150,000. Then there is evidence in the internal review decision of year-to-year costs that are not insubstantial. It is very unlikely that there would be a reversal of that decision. 25 The security fence decision was driven, as I understand it, by concerns about giving you a level of personal safety; and by concerns to do with the possibility of securing the site for the purpose of building works. All I want to say in regard to that is, that seems to me to be possibly a more arguable aspect of the decision that you are putting in issue. 26 Now, the next, the matter of prejudice is a difficult one to address. What the Protective Commissioner, I think, at the end of the day is really saying is that it is of the view that it should not be held up any longer in having the capacity to proceed to do some building works and building repairs. 27 It seems to me in this case, balancing the factors of prejudice, the arguability of the case and the need to have regard to what is in the best interest of the protected person, I should not give leave for this matter to proceed. 28 I just want to make some additional comments for the Office's consideration. The first one is the one I have already made. I think mail communications involving formal decisions, i.e. primary decision or internal review decisions, in the case of LZ, are best done by a method of mail that gives rise to independent records of receipt. The second matter I wish to mention is the question of the security fence. It seems to me that the Office should give some consideration to what its intentions are with respect to the permanency or otherwise of this fence. I just want to say, Ms Phang, that when you look the picture (photograph forming part of the evidence), it is aesthetically most unattractive. That kind of fence would, I think, normally only be erected in a building context. There may also be neighbourhood amenity issues. 29 While I am not giving leave for the matter to proceed, on the other hand, I think some thought should be given by the Office to what the real purpose is of this security fence and whether there is some building initiative in prospect. If there is not, the Office should look at the question of whether there is any inexpensive alternative. Orders 1. Application for review out of time. 2. Leave to proceed is not granted. 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