Civil and Administrative Tribunal New South Wales Medium Neutral Citation: New South Wales Trustee and Guardian v Clark [2019] NSWCATAP 257 Hearing dates: 30 August 2019 Date of orders: 14 October 2019 Decision date: 14 October 2019 Jurisdiction: Appeal Panel Before: Cole DCJ, Deputy President L Pearson, Principal Member Decision: (1) The appeal is allowed. (2) The decision of the Tribunal dated 30 April 2019 in this matter is set aside. (3) Mr Clark's application for the release to him under the Government Information (Public Access) Act 2009 (NSW) of documents prepared by the NSW Trustee and Guardian for the purpose of obtaining letters of administration with respect to the estate of Ms Reiner from 1 May 2015 to 10 December 2015, being an application for excluded information under the Act, is not a valid application, and is refused. Catchwords: APPEAL – access to information – whether information sought "excluded information" Legislation Cited: Administrative Decisions Review Act 1997 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Government Information (Public Access) Act 2009 (NSW) Interpretation Act 1987 (NSW) New South Wales Trustee and Guardian Act 2009 (NSW) Probate and Administration Act 1898 (NSW) Category: Principal judgment Parties: NSW Trustee and Guardian (Appellant) Bradley Roy Clark (Respondent) Representation: Counsel: S Chapple (written submissions Appellant) H Morrison (hearing 30 August 2019 Appellant) Respondent (self-represented) File Number(s): AP 19/22601 Publication restriction: Unrestricted Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Administrative and Equal Opportunity Division Citation: [2019] NSWCATAD 73 Date of Decision: 30 April 2019 Before: J McAteer, Senior Member File Number(s): 2018/00119958 REASONS FOR DECISION 1. This is an appeal from a decision of the Tribunal at first instance which was delivered on 30 April 2019. 2. The decision at first instance arose from an application by Mr Clark for administrative review of the decision of the NSW Trustee and Guardian ('the NSWTG') in relation to a request by Mr Clark under the Government Information (Public Access) Act 2009 (NSW) ('the GIPA Act') for documents in relation to the management of his aunt's financial affairs. 3. The issues for determination by the Tribunal at first instance were identified by the NSWTG as being the adequacy of searches undertaken to locate information relating to the period 25 February 2009 to 21 October 2011, and the decision that the access application was invalid in so far as it related to the period 1 May 2015 to 9 December 2015. The Tribunal at first instance concluded that the NSWTG had discharged its onus on the adequacy of search issue, and determined that the information held relating to the period 1 May 2015 to 9 December 2015 was not excluded information. The Tribunal at first instance set aside the decision of the NSWTG in relation to Mr Clark's application and remitted the matter to the NSWTG under s 65(1) of the Administrative Decisions Review Act 1997 (NSW) for a fresh decision to be made. 4. The NSWTG has appealed to this Appeal Panel from the decision of the Tribunal at first instance. A stay of the operation of the order remitting the matter to the NSWTG was granted, pending further order of the Tribunal. History 1. The history of the matter is set out accurately and succinctly in the written submissions of the Trustee: BACKGROUND 1. These proceedings arise in relation to the estate of the late Ms Gladys Ivy Reiner, who died on 21 October 2011. Prior to her death, Ms Reiner was subject to a financial management order. On 26 February 2009, the NSW Guardianship Tribunal appointed Ms Sondra Pieters as the private manager of the deceased pursuant to its power under s. 25M(1)(a) of the Guardianship Act 1987. In such a case, the NSW Trustee and Guardian ("NSWTG") has a supervisory role in respect of the manager: Division 2 of Part 4.5 of the NSW Trustee & Guardian Act 2009 (the "NSWTG Act"). 2. Ms Reiner died on 21 October 2011. As a consequence of her death, the private management order ceased to have effect: s. 93 of the NSWTG Act. 3. Ms Reiner died without a will. After her death, a solicitor (Ms Michelle Johnson) was engaged to act for various purported beneficiaries. Ms Johnson approached NSWTG on or about 1 May 2015 and requested that NSWTG apply for letters of administration in respect of Ms Reiner's estate. Letters of administration were granted to NSWTG on 10 December 2015. 4. On 31 July 2017, NSWTG received a request from Mr Bradley Clark (the respondent) for access to various documents pursuant to the Government Information (Public Access) Act 2009 (the "GIPA Act"). Mr Clark is a beneficiary of Ms Reiner's estate. His request was as follows: All files, correspondence, file notes and other documents relating to the estate of the late Gladys Ivy Reiner from the Trustee and Guardian and in particular: (a) A review of all transactions undertaken during the management of Mrs Reiner's affairs by Ms Sandra Pieters under the Financial Management Order between 2009 and her death on 21 October 2011;and (b) A review of any invoices issued by Ms Michelle Johnson reviewed by TAG and paid from the estate. 5. The requested documents fall into four time periods: a) Documents held by NSWTG in respect of the period to 21 October 2011 – the period during which Ms Reiner was subject to a financial management order; b) Documents held by NSWTG in respect of the period between 21 October 2011 and 1 May 2015 - the period after the death of Ms Reiner and prior to NSWTG being approached to apply for letters of administration; c) Documents held by NSWTG in respect of the period between 1 May 2015 and 10 December 2015 - the period after NSWTG was approached to apply for letters of administration and before the grant issued; and d) Documents held by NSWTG after 10 December 2015 - the period after the grant of letters of administration issued. 6. Mr Clark's application was considered by NSWTG on various occasions, including on 12 December 2017 and again on 7 February 2018.1 Ultimately, NSWTG determined to provide the "accounts documents" held by NSWTG in relation to the private management of Ms Reiner on the basis that they predated Ms Reiner's death, but declined to provide documents received after 22 October 2011 on the basis that those documents related to Ms Reiner's estate and were therefore "excluded information" for the purpose of s. 43 and Schedule 2 of the GIPA Act. 7. Mr Clark filed an application for administrative review of NSWTG's decision of 7 February 2018. Following the filing of that application, NSWTG accepted that it was required to make available: a) documents held by NSWTG during the period 26 February 2009 to 21 October 2011 (i.e. during the period in which Ms Reiner was subject to a financial management order); and b) documents held by NSWTG during the period from 22 October 2011 to 30 April 2015 (i.e. the period after the death of Ms Reiner and prior to NSWTG being approached to apply for letters of administration). 8. Those additional concessions left the Tribunal with only two questions to determine: a) the adequacy of the searches of NSWTG to locate the information relating to the period 25 February 2009 until 21 October 2011; and b) whether the access application was invalid so far as it relates to the period 1 May 2015 to 9 December 2015.2 9. The application was heard on 20 November 2018, with additional submissions provided after the date of the hearing. Senior Member McAteer delivered a decision on 30 April 2019. 10. The Senior Member held that NSWTG had discharged its onus in demonstrating that its search efforts were reasonable in the circumstances of the case.3 However, the Senior Member held that information created in the period 1 May 2015 to 9 December 2015 was not 'excluded information' on the basis that at that time letters of administration had not yet been granted to NSWTG.4 11. It is this second finding, that information created in the period 1 May 2015 to 9 December 2015 is not 'excluded information', that is the subject of the present appeal. 1 See paragraphs [4] - [10] 2 Paragraph [19] of Clark v NSW Trustee and Guardian [2019] NSWCATAD 73 3 Paragraphs [51] and [56] of Clark v NSW Trustee and Guardian [2019] NSWCATAD 73 4 Paragraphs [70] - [72] of Clark v NSW Trustee and Guardian [2019] NSWCATAD 73 Grounds of appeal 1. The NSWTG's grounds of appeal were as follows: 1. The Member erred in finding that, on a proper construction of s 43 and Clause 4 of Schedule 2 of the Government Information (Public Access) Act 2009 ("the Act"), that information created by NSW Trustee & Guardian (NSWTG") between 1 May 2015 and 10 December 2015 for the purpose of applying for letters of administration in respect of the estate of the late Ms G Reiner was not 'excluded information' within the meaning of s 43 and Clause 4 of Schedule 2 of the Act because such information was created prior to the grant of letters of administration to NSWTG on 10 December 2015. 2. The Member should have found that, on a proper construction of s 43 and Clause 4 of Schedule 2 of the Act, all information created by NSWTG in performing its functions under Chapter 3 of the NSW Trustee and Guardian Act 2009 is 'excluded information', including information created between 1 May 2015 and 10 December 2015 prior to the appointment of NSWTG as administrator of the estate of the late Ms G Reiner. 3. In the alternative, the Member should have found that, on a proper construction of s 43 and Clause 4 of Schedule 2 of the Act, information created between 1 May 2015 and 10 December 2015 for the purpose of applying for letters of administration in respect of the estate of the late Ms G Reiner relates to 'NSWTG's function as executor, administrator or trustee and is therefore 'excluded information'. Nature of the Appeal 1. This is an appeal as of right on a question of law (s 80(2)(b) Civil and Administrative Tribunal Act 2013 (NSW)). No application for leave to appeal on grounds other than on a question of law is made. 2. In his Reply to Appeal Mr Clark stated that in his view the Tribunal's legal interpretation of the matter was correct and he supports the orders made by the Tribunal. He stated that he is seeking proper accounts and disclosure relating to the management and distribution of his aunt's estate, and that there has been misconduct and he cannot be assured that the distribution of the proceeds of the estate was in compliance with the law. Legislation 1. The GIPA Act provides for a regulatory system to facilitate the provision of access to government information by the public (s 3). The GIPA Act provides for a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure (s 5). The GIPA Act provides, in s 9(1): (1) A person who makes an access application for government information has a legally enforceable right to be provided with access to the information in accordance with Part 4 (Access applications) unless there is an overriding public interest against disclosure of the information. 1. The GIPA Act further provides, in s 43: 43 Access application cannot be made for excluded information (1) An access application cannot be made to an agency for access to excluded information of the agency. Note. Information is excluded information of an agency if it relates to any function specified in Schedule 2 in relation to the agency. (2) An application for government information is not a valid access application to the extent that the application is made in contravention of this section. 1. Schedule 2 of the GIPA Act is headed "Excluded information of particular agencies", and begins with the following note: Note. Information that relates to a function specified in this Schedule in relation to an agency specified in this Schedule is excluded information of the agency. Under Schedule 1 it is to be conclusively presumed that there is an overriding public interest against disclosure of excluded information of an agency (unless the agency consents to disclosure). Section 43 prevents an access application from being made to an agency for excluded information of the agency. 1. The "excluded information" specified in Schedule 2 of the Act includes, in clause 4, under the heading 'Other information': The NSW Trustee and Guardian—functions exercised in the NSW Trustee and Guardian's capacity as executor, administrator or trustee. 1. The Interpretation Act 1987 (NSW) provides, in s 35(4): (4) A heading to a provision of an Act or instrument (not being a heading referred to in subsection (1)), or a marginal note, footnote or endnote in an Act or instrument, shall be taken to be part of the Act or instrument if: (a) it is referred to expressly, otherwise than by means of matter within some other provision of the Act or instrument (being matter in parentheses that merely sets out a heading to or describes the effect of the firstmentioned provision) or by means of a symbol, in some other part of the Act or instrument, or (b) not being so referred to, it is a heading, marginal note, footnote or endnote to a table or form in the Act or instrument. 1. We accept the NSWTG's submission that the note in Schedule 2 is a marginal note to the table in Schedule 2, and forms part of the Act. 2. The effect of s 43(1) and (2) and Schedule 2, clause 4 of the GIPA Act is that information held by the NSWTG which is related to functions exercised by the NSWTG in its capacity as executor, administrator or trustee is excluded information of the NSWTG, and an application for such information is not a valid access application. Is the information created by NSWTG between 1 May 2015 and 10 December 2015 excluded information? The NSW Trustee and Guardian Act 1. The appeal was argued on the basis that the information held by NSWTG in relation to Ms Reiner, and generated between 1 May 2015 and 10 December 2015, was generated in the course of the preparation of an application for letters of administration, following the request made by Ms Johnson (see [5] above). 2. The NSWTG is constituted by the NSW Trustee and Guardian Act 2009 (NSW). 3. The NSW Trustee and Guardian Act 2009 provides, in s 10 and s 11: 10 Functions generally (1) The NSW Trustee has such functions as are conferred or imposed on it by or under this or any other Act. (2) The NSW Trustee may do all such supplemental, incidental or consequential acts as may be necessary or expedient for the exercise of its functions. (3) Persons may be employed in the Public Service under the Government Sector Employment Act 2013 to enable the NSW Trustee to exercise its functions. Note. Section 59 of the Government Sector Employment Act 2013 provides that the persons so employed (or whose services the NSW Trustee makes use of) may be referred to as officers or employees, or members of staff, of the NSW Trustee. Section 47A of the Constitution Act 1902 precludes the NSW Trustee from employing staff. 11 General trustee and other functions (cf PT Act, ss 12 and 13) (1) The NSW Trustee may be appointed to and act in any of the following capacities: (a) trustee, (b) executor or administrator, (c) collector of estates under an order to collect, (d) agent or attorney, (e) guardian or receiver of the estate of a minor, (f) receiver of any other property. (2) The NSW Trustee may be appointed to and act in the capacity of a financial manager of the estate of a managed person. (3) The NSW Trustee may prepare wills and carry out professional services in connection with wills, probate and administration. … 1. The NSW Trustee and Guardian Act 2009 provides, in ss 22 and 23: 22 Grant of probate or administration to NSW Trustee (cf PT Act, s 18 (1)) (1) The Supreme Court may grant: (a) probate of a will, or (b) administration of any estate (whether for general, limited or special purposes), to the NSW Trustee. (2) This section does not limit the generality of the powers or other functions of the Supreme Court or the NSW Trustee. Note. Under section 61 of the Probate and Administration Act 1898, a deceased person's estate vests in the NSW Trustee until probate, administration or an order to collect is granted. 23 Intestacy where no letters of administration (cf PT Act, s 18 (1A)) (1) The NSW Trustee is, on application, entitled as of right to a grant of administration of the estate of a person who died intestate leaving property in New South Wales if: (a) letters of administration of the deceased person's estate have not been granted, or (b) letters of administration of the estate granted to a person other than the NSW Trustee are revoked, or (c) a person granted letters of administration of the estate dies without completing administration of the estate. (2) The NSW Trustee is not required to provide, and the Supreme Court may not require the provision of, any citation or consent before administration of the estate of the deceased person is granted. (3) However, if the NSW Trustee and any other person severally apply for the administration of the deceased person's estate, the Supreme Court may grant administration of the estate to the NSW Trustee or other person, as the Court thinks fit. Probate and Administration Act 1898 (NSW) 1. The Probate and Administration Act 1898 provides, in s 61: 61 Property of deceased to vest in NSW Trustee From and after the decease of any person dying testate or intestate, and until probate, or administration, or an order to collect is granted in respect of the deceased person's estate, the real and personal estate of such deceased person shall be deemed to be vested in the NSW Trustee in the same manner and to the same extent as aforetime the personal estate and effects vested in the Ordinary in England. 1. The Probate and Administration Act 1898 provides, in s 44: 44 Real and personal estate to vest in executor or administrator (1) Upon the grant of probate of the will or administration of the estate of any person dying after the passing of this Act, all real and personal estate which any such person dies seised or possessed of or entitled to in New South Wales, shall as from the death of such person pass to and become vested in the executor to whom probate has been granted or administrator for all the person's estate and interest therein in the manner following, that is to say: (a) On testacy in the executor or administrator with the will annexed. (b) On intestacy in the administrator. (c) On partial intestacy in the executor or administrator with the will annexed. (2) Upon the grant, to the NSW Trustee or a trustee company, of probate of the will or administration of the estate of a person dying after the commencement of the Wills, Probate and Administration (Trustee Companies) Amendment Act 1985, the NSW Trustee or the trustee company, as the case may be, shall be: (a) the executor, by representation, of any will of which the person had been granted probate, and (b) the administrator, by representation, of any estate of which the person had been granted administration. 1. 'NSW Trustee' is defined in s 3 of the Probate and Administration Act 1898 to mean the NSWTG. The Effect of the NSW Trustee and Guardian Act 2009 and the Probate and Administration Act 1898 in the context of this matter. 1. Ms Reiner died on 21 October 2011. She died intestate. From her death until the grant of letters of administration, her real and personal estate was vested in the NSWTG under s 61 of the Probate and Administration Act 1898. In other words, the NSWTG held Ms Reiner's real and personal property as trustee from her death until the grant of letters of administration on 10 December 2015. 2. Ms Reiner died intestate, leaving property in New South Wales. No one other than the NSWTG applied for letters of administration. Under s 23 of the NSW Trustee and Guardian Act 2009, in these circumstances, the NSWTG was entitled to a grant of letters of administration in relation to Ms Reiner's estate as of right. 3. The letters of administration were granted by the Supreme Court to the NSWTG on 10 December 2015. The effect of that grant, together with s 44 of the Probate and Administration Act 1898, was that the NSWTG became the administrator of the estate. Section 44(1) duplicates the effect of s 61 in these circumstances, providing that the deceased's real and personal property is taken to have vested in the administrator from the death of the deceased. The Decision at first instance 1. Schedule 2 of the GIPA Act lists the excluded information of particular agencies. In clause 4, as noted above at [12], the following is included in that list: The NSW Trustee and Guardian – functions exercised in the NSW Trustee and Guardian's capacity as executor, administrator or trustee. 1. The note to Schedule 2, which forms part of the Schedule and therefore part of the Act, says: Information that relates to a function specified in this Schedule in relation to an agency specified in this Schedule is excluded information of the agency. 1. In the decision at first instance, the member at [43] posed the central question to be deciding what function (if any) the NSWTG was engaged in before the grant of letters of administration of the Estate by the Supreme Court on 10 December 2015. The member said, at [64]–[68] (referring to the NSWTG as 'the TAG', and noting that Mr Clark was the applicant): 64. In the current matter the test is much narrower than being connected with functions or particular functions generally. In the current matter the applicant's position is that the TAG was not the administrator at the relevant time and therefore could not hold those functions. The TAG was seeking to be 'appointed' as administrator of the Estate. Until such time as it was appointed by the Supreme Court (by a grant of letters of administration) it is difficult to see how it was engaged in the exercising of functions as Administrator. 65. In deciding how the excluded information issue should be interpreted I note that the words in the schedule are as follows: functions exercised in the NSW Trustee and Guardian's capacity as executor, administrator or trustee. (Emphasis added) 66. There is no evidence to suggest that the TAG had any capacity as administrator at the relevant time. The issue was that it was seeking to have that capacity granted to it in a legal sense. Whilst the enabling legislation provides the TAG with various roles, responsibilities, powers and functions, only the Supreme Court can provide a 'grant' or order creating that legal capacity. 67. In the absence of any submissions on the meaning of the term capacity and without embarking on a formal legal analysis of the meaning of the term in this context, capacity would usually be considered as equating to ones duty, role or position. 68. In my view the submission that: functions exercised in its capacity as an administrator, includes all the "professional and administrative tasks connected with the application for administration" including the process of determining whether to apply to be appointed as the administrator and the process of preparing an application for Letters of Administration' is misconceived. (Respondent's subs 22/10/2018 at [48] referring to DF at [25]). Discussion and conclusion 1. The NSWTG argued that Schedule 2 of the GIPA Act should not be construed narrowly, but should be understood as a reference to the functions exercised by the NSWTG under Chapter 3 of the New South Wales Trustee and Guardian Act 2009. 2. Mr Clark argued that the NSWTG had not acted properly in relation to its dealings with the estate, and that it could therefore not be properly characterised as a 'trustee' because that term implied trustworthiness. 3. We reject this argument. The question of whether an entity is a trustee is a question of law, separate from any analysis of the degree of competence or propriety with which the role is performed. In saying that, we make no findings with respect to issues of competence or propriety. 4. Mr Clark had complaints about the conduct of the NSWTG which do not affect the outcome of this matter, which relates only to Mr Clark's application for the disclosure of information under the GIPA Act. We make no findings or determinations with respect to those matters, which are not relevant to the issues before us. Our jurisdiction is confined to the decision with respect to the GIPA application made by Mr Clark. 5. From the death of Ms Reiner, the NSWTG was the trustee of her real and personal property under ss 44 and 61 of the Probate and Administration Act 1898 and also had a right to be appointed her administrator under s 23 of the NSW Trustee and Guardian Act 2009. 6. In our opinion, the functions being exercised by the NSWTG between 1 May 2015, when the NSWTG was asked to apply for letters of administration, and 10 December 2015, when the letters of administration were granted to the NSWTG, were exercised in the NSWTG's capacity as trustee and administrator. 7. The application for letters of administration was prepared to advance the interests of the beneficiaries by progressing the distribution of the real and personal property held on trust by the NSWTG. For that reason, the documents were generated by the NSWTG in its capacity as a trustee. 8. The application for letters of administration was prepared by the NSWTG in circumstances where it was entitled as of right under s 23 of the NSW Trustee and Guardian Act 2009 to a grant of administration, which it then obtained on 10 December 2015. We consider that the documents generated in the process of applying for the letters of administration were generated in the exercise of a function as the administrator of Ms Reiner's estate. 9. The determination of the member at first instance that the NSWTG had no capacity as administrator before the grant of letters of administration is an error. An entity may perform tasks in the capacity of a function it is about to assume, particularly where it has an absolute right to assume that function which is conferred by legislation. The note to Schedule 2 of the GIPA Act says that information that relates to a function specified in the Schedule in relation to an agency specified in the Schedule is excluded information. On that basis, the information prepared for the application for letters of administration is excluded information as it clearly relates to the function of administrator. 10. As a consequence, Mr Clark's application for the disclosure to him of documents created by NSWTG after 1 May 2015 and prior to 10 December 2015 is an application for 'excluded documents', and, to that extent, is not a valid application under the GIPA Act. 11. We understand that Mr Clark has been provided with all of the documents he sought except for the documents in contention in this appeal. Orders 1. The Tribunal orders: 1. The appeal is allowed. 2. The decision of the Tribunal dated 30 April 2019 in this matter is set aside. 3. Mr Clark's application for the release to him under the Government Information (Public Access) Act 2009 (NSW) of documents prepared by the NSW Trustee and Guardian for the purpose of obtaining letters of administration with respect to the estate of Ms Reiner from 1 May 2015 to 10 December 2015, being an application for excluded information under the Act, is not a valid application, and is refused. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar Amendments 23 October 2019 - typographical error coversheet 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. Decision last updated: 23 October 2019