RU v Protective Commissioner [2005] NSWADT 279

CITATION: RU v Protective Commissioner [2005] NSWADT 279 DIVISION: General Division APPLICANT PARTIES: RU RESPONDENT Protective Commissioner FILE NUMBER: 053278 HEARING DATES: 15/11/05 SUBMISSIONS CLOSED: 11/15/2005 DATE OF DECISION: 12/02/2005

BEFORE: Hennessy N - Magistrate (Deputy President) APPLICATION: Protected Estates Act - Protective Commissioner - powers as to property - Protective Commissioner - powers as to property MATTER FOR DECISION: Principal matter LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Protected Estates Act 1983 CASES CITED: REPRESENTATION: C Taylor, counsel T Tunbridge, solicitor ORDERS: The decision of the Protective Commissioner to sell RU's share of the property in which he resides 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 Introduction 1 RU is a 67 year old man with a development disability. He is receiving a government pension and cannot read or write, although he can sign his name. He lives in an old worker's cottage on the waterfront in Balmain. The property is in a very bad state of repair. Apart from some basic structural problems, the toilet does not flush and RU needs to shower at a neighbour's property or at the local club. RU has a close relationship with his mother who lives in a nursing home not far from Balmain. RU also has close ties with the Balmain community and his preference is to remain living in the area. The house originally belonged to his grandparents. When his grandmother died, she left a one-fifth share in the property to RU and another one-fifth share to RU's mother. The other three-fifths share is split between three of RU's uncles, or their estate. They have agreed to allow RU to continue to live in the house but it is now in such a bad state of repair that a decision needs to be made about the property and about RU's future accommodation. 2 Recently the Guardianship Tribunal appointed the Protective Commissioner to manage RU's financial affairs. The Protective Commissioner also manages RU's mother's estate. William Moss and his mother Joyce are life long friends of RU. RU calls Mrs Moss his "social worker". In June 2005, Mr Moss put forward a proposal to the Protective Commissioner to develop the property. The original idea was to build villas on the land together with a small studio or apartment in which RU could live. The Protective Commissioner's response to this proposal was that the OPC was not willing or able to become involved in speculative investment proposals or property development and was unable to advance funds on behalf of RU for such a proposal. The OPC concluded that the sale of the Balmain property to fund alternative accommodation was the better option. RU has applied to the Tribunal for a review of this decision. 3 Since RU's application, Mr Moss has offered to buy the property for $800,000. The OPC has rejected that offer. RU's solicitor has also taken some preliminary steps to determine whether it would be feasible to redevelop the property. He has consulted an architect and made inquiries of the relevant Council. However, the solicitor acting for the people who own the other three-fifths share in the property has advised, by letter of 11 November 2005, that his clients have instructed him that the property is to be sold by public auction. Issues 4 Several issues arose in the course of the proceedings. They were: Should Mr Moss be joined as a party? What is the decision that the Tribunal has been asked to review and does the Tribunal have jurisdiction to review it? Should the Tribunal review the decision in the absence of an internal review? What is the correct and preferable decision? Should Mr Moss be joined as a party? 5 Mr Moss applied to be joined as a party to these proceedings. Under s 67(4) of the Administrative Decisions Tribunal Act 1997 the Tribunal may join a party to proceedings if the Tribunal is satisfied that the interests of the person are likely to be affected by the decision. Apart from being a beneficiary under RU's will, Mr Moss told the Tribunal that he owned RU's share in the property. He produced what appeared to be an original document signed by RU stating: I, [RU] give my share of the sale of the property [address] to William Wayne Moss to use as he sees fit, to help rebuild my life and provide a place to live. 6 The document is dated 2 May 2005. The Guardianship Tribunal made its orders on 10 May 2005. It does not appear from the Guardianship Tribunal's decision that it was aware of this document when they made the order. The OPC denies that Mr Moss has any interest in the property. I have proceeded on the assumption that RU remains the owner of his interest in the property. If Mr Moss were the owner of that share, there would be no point him asking the Tribunal to review the Protective Commissioner's decision because he would be entitled to make decisions about his share of the property himself. Although Mr Moss's interests as a beneficiary under RU's will, may be affected by the Tribunal's decision I am not inclined to join him as a party to these proceedings because of the remoteness of that interest. Mr Moss gave evidence in support of RU's case. What is the decision that the Tribunal has been asked to review and does the Tribunal have jurisdiction to review it? 7 Ms Livesy is a senior estate manager with the OPC. She advised that the OPC has not made a formal decision to sell the property. The file note from an officer to the Protective Commissioner dated 28 June 2005 was merely a response to Mr Moss's initial proposal regarding the development of the property. The file note provides some background information about the decision: A proposal has been put forward by a friend of the client, William Moss, regarding developing the property. He wishes to develop the present site by building villas. [RU] would have one and the remainder would be sold to cover the remaining costs, including building and buying out the other owners. Unfortunately Mr Moss has been less that (sic) clear with his proposal. Initially he offered to buy the property for 1.5 million. He now has stated that he is unable to buy it but that the OPC could release funds, using the 2/5's equity of the client and mother. He was asked to present a detailed plan, however all we received was a 1 page fax on 22/6/05 which is unclear and presents figures highly questionable as to the sale prices that could be obtained from any villa development. Rather than take the matter any further and become involved in any more discussions with Mr Moss, I am referring this matter to you now in order to confirm the following: 1.That the OPC is not willing or able to become involved in speculative investment proposals or property developments, and 2.Is unable to advance funds on behalf of clients for such proposals. 8 The Protective Commissioner agreed with those recommendations and noted that, "The sale of the Balmain property to fund alternative accommodation options is the better option." The Protective Commissioner then wrote to Mr Moss on 19 July 2005 and advised that: 1. sale of the Balmain property is on hold until alternative accommodation is found for [RU] 2. A formal decision is still to be made on an agreed sale price 3. OPC has asked [the solicitor for the people with the remaining 3/5 share in the property] to provide details of all the part owners of the property. 9 The decision to reject Mr Moss's proposal and to sell the property to fund alternative accommodation was a decision of the Protective Commissioner made necessary and incidental to managing RU's estate:(s 28A(1) of the Protected Estates Act 1983). I am satisfied that even though the decision was not a formal one, the Tribunal has jurisdiction to review it. Should the Tribunal review the decision in the absence of an internal review? 10 At the hearing, I made a decision under s 55(2)(c) of the ADT Act that it was necessary to deal with the application in order to protect RU's interests even though there had been no internal review of the decision. The application was made within a reasonable time after the decision. What is the correct and preferable decision? 11 RU's submissions. RU submitted that the decision of the Protective Commissioner should be set aside and remitted for reconsideration by the Protective Commissioner in accordance with any directions and recommendations of the Tribunal. According to RU, the Protective Commissioner has taken a very narrow view of his role. The reasons RU gave for submitting that the Protective Commissioner had not made the "correct and preferable" decision were that the Protective Commissioner had: a) failed to give consideration to the express wishes of RU in relation to the development proposal; b) failed to consider other options that might be available to RU; c) failed to consult with or call for submissions for and on behalf of RU; and d) failed to comply with its obligations under the Guardianship Act. 12 Tribunal's reasoning and conclusion . The Protective Commissioner is the manager of RU's estate and the estate of RU's mother. Together, RU and his mother own 2/5 of the property. RU does not have the funds to repair the property or to develop it himself. The other owners of the property have instructed their solicitor, as recently as 11 November 2005, to sell the property at public auction. Setting aside the decision and remitting it for further consideration would not change the fact that the other owners, who are in the majority, want the property to be sold at public auction. Even if the Protective Commissioner has not given consideration to RU's wishes, taken into account other options, called for submissions or complied with its obligations under the Guardianship Act , doing so would make no difference to its decision. As long as the other owners continue to instruct their solicitor that the property should be sold there is no practical alternative but to agree to that course. For that reason I am satisfied that the Protective Commissioner has made the "correct and preferable" decision. Orders The decision of the Protective Commissioner to sell RU's share of the property in which he resides is affirmed.