FT v Office of the Protective Commissioner [2008] NSWADT 229

CITATION: FT v Office of the Protective Commissioner [2008] NSWADT 229

DIVISION: General Division

APPLICANT FT PARTIES: RESPONDENT Office of the Protective Commissioner

FILE NUMBER: 083115

HEARING DATES: 10 June 2008

SUBMISSIONS CLOSED: 10 June 2008

DATE OF DECISION: 18 August 2008

BEFORE: Hennessy N - Magistrate (Deputy President)

MATTER FOR DECISION: Preliminary matter

LEGISLATION CITED : Protected Estates Act 1983

APPLICANT No appearance REPRESENTATION: RESPONDENT No appearance

ORDERS: The application is dismissed for want of jurisdiction.

REASONS FOR DECISION 1 Mr FT applied to the Tribunal for a review of a decision made by the Protective Commissioner. The decision was not to reimburse Mr FT and his sister the sum of $44,120.87 in legal expenses from their father's estate. The expenses were incurred on behalf of their father in relation to proceedings before the Victorian Civil and Administrative Tribunal. Those proceedings took place before the Guardianship Tribunal appointed the Protective Commissioner as financial manager of their father's estate. 2 After Mr FT had lodged his application for review the Tribunal received a letter from the Protective Commissioner dated 23 May 2008. That letter advised this Tribunal that on 16 May 2008 the Guardianship Tribunal had reviewed the order appointing the Protective Commissioner as manager of Mr FT's father's estate. The Protective Commissioner informed this Tribunal that the Guardianship Tribunal had varied the financial management order by revoking the appointment of the Protective Commissioner and appointing two other people as joint private managers of the father's estate. 3 As the Protective Commissioner was no longer the financial manager of the father's estate, and there was no point in the Tribunal reviewing a decision which the Protective Commissioner could not change, the application was listed for dismissal. The Tribunal told Mr FT that the matter would be listed for dismissal on 10 June 2008. Neither party appeared on that date and the matter was dismissed. The Tribunal told Mr FT that he could request written reasons for the decision within 28 days. Mr FT did not request written reasons but has since telephoned the Tribunal saying that, in his view, the Tribunal still has jurisdiction to review the Protective Commissioner's decision. Even though Mr FT did not request written reasons for the dismissal, I have decided to provide them in an attempt to explain the situation to him. 4 The Tribunal only has power to review certain kinds of decisions made by the Protective Commissioner: Protected Estates Act 1983, s 28A. When Mr FT applied to the Tribunal the Protective Commissioner had made a decision which the Tribunal had power to review. That decision was not to pay Mr FT the money for legal fees he had incurred on behalf of his father, out of his father's estate. While the Tribunal could have reviewed that decision at the time there was no point reviewing it after the private managers were appointed because the Protective Commissioner was no longer responsible for making those kinds of decision. Even if the Tribunal had heard Mr FT's application and decided that the Protective Commissioner's decision was incorrect, the Protective Commissioner would not have been able to pay Mr FT any money because he was no longer had the power to do so. 5 The Guardianship Tribunal appointed two other people to be the private managers of the father's estate. Those people can only do the kinds of things that the Protective Commissioner authorises them to do: Protected Estates Act 1983, s 30(3). The Protective Commissioner has told the Tribunal that he has made the standard Directions and Authorities giving the private managers authority to do certain things. The Protective Commissioner has also told the two private managers that if they want to reimburse Mr FT for his father's legal fees they should submit a report and a recommendation to the Protective Commissioner for consideration. The Protective Commissioner has told the Tribunal that so far, no report or recommendation has been received. 6 The application is dismissed

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