AJZ v NSW Trustee and Guardian

[2012] NSWADT 147

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:	AJZ v NSW Trustee and Guardian [2012] NSWADT 147
Hearing dates:	23 July 2012
Decision date:	23 July 2012
Jurisdiction:	General Division
Before:	Magistrate N Hennessy, Deputy President
Decision:	The application for a review of the decision of the NSW Trustee and Guardian to sell AKR's property is dismissed.
Catchwords:	MERITS REVIEW - application for review of decision by NSW Trustee to sell house jointly owned with estranged wife - following decision Family Court made orders by consent for the sale of the house - whether any utility in reviewing previous decision of NSW Trustee and Guardian -
Legislation Cited:	Administrative Decisions Tribunal Act 1997 NSW Trustee and Guardian Act 2009
Cases Cited:	Calvin v Carr [1979] 1 NSWLR 1 Ombudsman v Laughton (2005) 64 NSWLR 114
Category:	Principal judgment
Parties:	AJZ (Applicant) AKR (Applicant) NSW Trustee and Guardian (Respondent)
Representation:	AJZ (Applicant in person) AKR (Applicant in person) Mr L Williams (NSW Trustee and Guardian)
File Number(s):	123141
Publication restriction:	S126 of the Administrative Decisions Tribunal Act applies

REASONS FOR DECISION

1. This is an application by NSW Trustee to dismiss an application to review a decision of the NSW Trustee to sell AKR's house. Since the NSW Trustee made that decision, the Family Court has made consent orders that the house be sold. The NSW Trustee says that in those circumstances, there is no utility in reviewing the decision. AKR wishes to pursue his application because he alleges that the NSW Trustee made factual errors in the decision and failed to consult him before making that decision.

1. The application for review was made by a friend of AKR's, AJZ. I am satisfied that he has standing: NSW Trustee and Guardian Act 2009, s 70(3). I joined AKR as an applicant to the proceedings and he participated by phone: Administrative Decisions Tribunal Act 1997 (ADT Act), s 67(4). Another friend, AKS, withdrew his application to represent AKR as his agent.

1. The background to these proceedings is that AKR is currently in Parklea Correctional Centre awaiting trial on criminal matter. The Guardianship Tribunal appointed the NSW Trustee to manage AKR's financial affairs. On 2 May 2012 the NSW Trustee decided to sell AKR's share in the matrimonial home. On 25 May 2012 AKR's estranged wife applied to Family Court for expedited interim orders that the property be sold. After obtaining independent legal advice, the NSW Trustee consented to those orders on behalf of AKR. The Family Court made orders that the property be sold on 7 June 2012. On the same day the NSW Trustee received notice of AJZ's application to this Tribunal for review of the earlier decision to sell the property.

1. AKR accepts that the Tribunal cannot overturn the orders of the Family Court. He foreshadowed that he would be applying for an injunction from that court to prevent the sale from taking place.

1. Nevertheless AKR says that he wishes to pursue his application for a review of the NSW Trustee's decision made on 2 May 2012 to sell the property. The Tribunal has jurisdiction to review that decision: NSW Trustee and Guardian Act 2009, s 70.

1. I agree with NSW Trustee's submission that the review application be dismissed. The application is misconceived for two reasons. Firstly, there is no utility in reviewing the decision given that the Family Court has now made orders that the property be sold. Secondly, even if the Tribunal did review the decision it could not make findings about whether the NSW Trustee relied on incorrect information or failed to afford AKR natural justice.

1. The Tribunal's role is to stand in the shoes of the NSW Trustee and to decide what the correct or preferable decision is as at the date of the hearing, not as at the date when the decision was made: Administrative Decisions Tribunal Act 1997, (ADT Act), s 63. The Tribunal reviews the merits of the decision, not the findings of the decision maker or the process by which the decision was made. The Tribunal would make its own findings and give a new decision based on the material presented at the hearing. If the NSW Trustee denied AKR procedural fairness, that is not a matter that the Tribunal could take into account in making a new decision: Calvin v Carr [1979] 1 NSWLR 1, pp 8 and 9, Ombudsman v Laughton (2005) 64 NSWLR 114, [47] (Basten JA).

1. The application for a review of the decision of the NSW Trustee and Guardian to sell AKR's property is dismissed because it is misconceived: ADT Act, s 73(5)(g)(ii).

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