AEW v BW

FACTUAL MATRIX AND CONTEXT: A Claim under the Motor Accidents Compensation Act and the operation of the Claims Assessment Guidelines issued under that Act

1. As explained in QBE Insurance (Australia) Ltd v Mordue [2015] NSWCA 380 at [10]-[22] and [39], the Motor Accidents Compensation Act 1999 establishes a statutory scheme for the provision of compensation, by way of administrative assessment, for injuries sustained as a consequence of a motor vehicle accident. It preserves the availability of a curial determination of claims in specified circumstances.
2. A curial determination of a claim for compensation can occur either: 1. pursuant to section 92(1)(a) of the Motor Accidents Compensation Act, prior to an assessment by the Claims Assessment and Resolution Service ("CARS") if the claim is of a kind that is exempt under the Claims Assessment Guidelines (a form of delegated legislation issued by the State Insurance Regulatory Authority, formerly the Motor Accidents Authority, under section 69(1) of the Motor Accidents Compensation Act) or regulations; 2. pursuant to section 92(1)(b), after a preliminary assessment that the claim is "not suitable" for assessment under Part 4.4 (sections 88-106) of the Act; or 3. pursuant to sections 94, 95 and 108, following a CARS assessment.
3. Section 108 provides that a claimant is not entitled to commence court proceedings against another person in respect of a claim unless the Principal Claims Assessor has issued a certificate under section 92 that the claim is exempt from assessment under Part 4.4 or a claims assessor has issued an assessment certificate under section 94. Section 95 prescribes the circumstances in which the parties to an assessment are bound by the assessment.
4. Section 89(2) of the Motor Accidents Compensation Act expressly records that nothing in Part 4.4 (entitled "Claims Assessment and Resolution") prevents a claim under the Act from being settled at any time.
5. Nothing in the Motor Accidents Compensation Act stands in the way of an application under section 75(2) of the Civil Procedure Act 2005 NSW ("CPA") for approval of an agreement for settlement of a claim made, or able to be made, under the Motor Accidents Compensation Act by or on behalf of a person under legal incapacity. Specifically: 1. section 89(2) of the Motor Accidents Compensation Act operates to preserve procedures for settlement of a claim; 2. an application for approval of a settlement agreement on behalf of a person under legal incapacity falls within both CPA section 75(1) and CPA section 75(2) because it is a claim for enforcement of the agreement and, as such, it is a claim "enforceable by proceedings" in a court to which the CPA applies; and 3. an application under CPA section 75(2) is, in substance, an application, upon an exercise of a statutory form of protective jurisdiction, for leave to enforce a settlement agreement, not a claim for compensation made "against another person in respect of a claim" within the meaning of section 108 of the Motor Accidents Compensation Act.
6. If and when a settlement agreement is approved under CPA section 75, money recovered by the incapacitated person under the settlement agreement will be governed by CPA section 77, which enables a court to order that that money be paid into court pending the making of orders for the appointment of a protected estate manager under the NSW Trustee and Guardian Act.
7. CPA sections 75 and 77 are in the following terms (with emphasis added): "75 Settlement of claim made on behalf of, or against, person under legal incapacity (1) This section applies to any claim, enforceable by proceedings in the court, that is made by or on behalf of, or against, a person under legal incapacity. (2) If, before proceedings are commenced with respect to any such claim, an agreement for the compromise or settlement of the claim is made by or on behalf of the person under legal incapacity, the court may approve or disapprove the agreement. (3) An agreement disapproved by the court does not bind the person under legal incapacity. (4) An agreement approved by the court binds the person under legal incapacity as if he or she were of full capacity and (if it was made by some other person on his or her behalf) as if that other person had made the agreement as his or her agent…. 77 Payment of money recovered on behalf of person under legal incapacity (1) This section applies to money recovered in any proceedings on behalf of any of the following persons: (a) a person under legal incapacity, (b) a person who, during the course of the proceedings, becomes a person under legal incapacity, (c) a person whom the court has found, under section 76 (1) (c), to be incapable of managing his or her own affairs, pursuant to a compromise, settlement, judgment or order in any proceedings. (2) All money recovered on behalf of a person referred to in subsection (1) is to be paid into court. (3) Despite subsection (2), the court may order that the whole or any part of such money not be paid into court but be paid instead to such person as the court may direct, including: (a) if the person is a minor, to the NSW Trustee and Guardian, or (b) if the person is a protected person, to the manager of the protected person's estate. (4) Money paid into court under subsection (2) is to be paid to such person as the court may direct, including: (a) if the person is a minor, to the NSW Trustee and Guardian, or (b) if the person is a protected person, to the manager of the protected person's estate."
8. Via these sections, the settlement of a Motor Accident Compensation Act claim for compensation on behalf of an incapacitated person can be brought, in the ordinary course, within the regulatory framework prescribed by the NSW Trustee and Guardian Act for management of the affairs of a person incapable of managing his or her own affairs.
9. An application for approval under CPA section 75(2) is not the only procedure by which an incapable person's claim can be settled without risk to those dealing with the incapable person or involved in management of his or her affairs - section 16 of the Infants' Custody and Settlements Act 1899 NSW and sections 26-27 of the Minors (Property and Contracts) Act 1970 NSW provide examples of more limited application in particular circumstances - but CPA section 75(2) is the ordinary vehicle available for approval of settlements and, incidentally, engagement of the State's administrative regime (under the NSW Trustee and Guardian Act) for protected estate management.
10. The Motor Accidents Compensation Act does not, in terms, make provision for the claim of a legally incapacitated person to be made on behalf of that person by a tutor, or for settlement of such a claim to be approved by an assessor or some other official associated with the SIR Authority.
11. The tenor of section 92 of the Act and clause 8.11.3 of the Claims Assessment Guidelines is that a claim for compensation made by or on behalf of a person who is, or may reasonably be thought to be, legally incapacitated must (if section 92(1)(a) and clause 8.11.3 apply) or should (if a finding of non-suitability is made under section 92(1)(b)) be exempted from an administrative assessment under Part 4.4 of the Act.
12. The concept of non-suitability for which section 92(1)(b) provides is not confined by prescribed criteria. That it does not provide an open-ended means of avoiding the assessment process is confirmed by the need for approval by the Principal Claims Assessor of any finding by an assessor that a claim is not suitable for administrative assessment: Zurich Australian Insurance Ltd v MAA and Anor [2006] NSWSC 845 at [38]-[54]. The concept of non-suitability requires evaluative decisions, attended by an element of discretion, to be made by responsible officers in whom a power of decision resides. In exercising their powers they are confined by the subject-matter, scope and purpose of the Motor Accidents Compensation Act: Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492 at 505; Pilbara Infrastructure Pty Ltd v Australian Competition Tribunal (2012) 246 CLR 379 at 400-401. They should be mindful, also, of the regulatory regime for management of the affairs of persons incapable of managing their own affairs.
13. Although clause 8.11.3 of the Claims Assessment Guidelines applies, in terms, to section 92(1)(a) of the Motor Accidents Compensation Act, not section 92(1)(b), it provides guidance about the circumstances in which a finding of non-suitability might, and ordinarily should, be made under section 92(1)(b). Where a claimant is not capable of managing his or her own affairs, a finding that his or her claim is "not suitable" for assessment under the Act would ordinarily be justified, if not required, even if a formal finding of incapacity for self-management has not been made by the Court, the NSW Civil and Administrative Tribunal ("NCAT") or the Mental Health Review Tribunal on an exercise of the protective jurisdiction entrusted to them under the NSW Trustee and Guardian Act or the Guardianship Act 1987 NSW, as the case may be.
14. There is a rational reason for distinguishing the two situations for which section 92(1)(a) and section 92(1)(b) respectively provide, assuming, as I do, that clause 8.11.3 (which erroneously refers to the Protected Estates Act 1983 NSW instead of the legislation that repealed and replaced that Act, the NSW Trustee and Guardian Act) is engaged when a claimant for compensation is a "protected person" within the meaning of section 38 of the NSW Trustee and Guardian Act. Section 71 of the NSW Trustee and Guardian Act operates to suspend decision-making powers of such a person in respect of property under protected estate management.
15. In dealing with a person who is, or may be, incapable of managing his or her own affairs, in all or some respects, but who is not a "protected person" within the meaning of section 38 of the NSW Trustee and Guardian Act (because a management order has not been made by the Court, NCAT or the Mental Health Review Tribunal), there is, or may be, need for an assessor (subject to the approval of the Principal Claims Assessor) to be entrusted with a discretion about how to proceed.
16. Absent a protected estate management order under the NSW Trustee and Guardian Act, or its equivalent (a financial management order) under the Guardianship Act 1987, a person to some extent incapable of managing his or her own affairs might nevertheless have legal capacity to make a contract or to participate in a CARS assessment. That is, in essence, a basis upon which the family involved in the present proceedings seeks to justify "settlement" of the defendant's claim for compensation without earlier invoking an exercise of protective jurisdiction.
17. The general law does not prescribe a fixed standard of "capacity" for the transaction of business; the level of capacity required depends on the particular business to be transacted, and the purpose of an enquiry as to capacity: Gibbons v Wright (1954) 91 CLR 423 at 434-438. That said, where a claimant for compensation is, or may be, incapable of managing his or her own affairs, there is generally a real, practical risk that he or she lacks the requisite capacity to make informed decisions about the conduct of compensation proceedings, whether that lack of capacity extends to a lack of contractual capacity at law or simply constitutes a "special disadvantage" or other quality liable, if taken advantage of, to attract equitable intervention.
18. In either case, a person who deals with such a person, or who participates in management of his or her affairs, may be exposed to a risk of loss, by reason of such conduct, if he, she or it lacks judicial or regulatory authority (or an enduring power of attorney) designed to protect the interests of the person who is, or may be, incapable of self-management. It is in the interests of those who have carriage of a claim for compensation, or of opposition to such a claim, by a claimant who is, or may be, incapable of self-management to ensure that a timely grant of authority to bind the claimant is available.
19. A lawyer acting for a person who is, or might reasonably be thought to be, incapable of managing his or her own affairs may be required to confront difficult questions, requiring an exercise of mature judgement, about whether, and when, to decline to act without the appointment of a tutor or to apply for protective orders: P.L.G. Brereton, "Acting for the Incapable - A delicate balance" (2013) 35 Aust Bar Rev 244. A client incapable of managing his or her own affairs is likely, generally, to be incapable of giving instructions, and he or she may not be bound by steps taken in his or her name.
20. Where needed, the protective jurisdiction of the Court is not readily circumvented or pre-empted. A failure to invoke protective measures in a timely way may mean that, after the event, if a need for intervention comes to notice, the Court may take steps, precautionary or otherwise, to protect the person and the estate of a person in need of protection.
21. If there is any reasonable ground for doubt about the capacity of a client then, in a case in which due authority to bind a client does not exist in the form of an enduring power of attorney, the course best taken is generally the prudent one of securing the appointment of a tutor, or the like, and making court approval of a settlement a condition of any settlement,
22. Approval of settlement of a claim made on behalf of a legally incapacitated person is within the province of a court, and may be within the province of a person formally appointed to manage the affairs of the incapable person, upon an exercise of protective or analogous jurisdiction. A curial power to approve such a settlement (eg, under CPA section 75 or the inherent jurisdiction of the Supreme Court) is essentially protective in character and, for that purpose, comprehensive in scope: Permanent Trustee Company Ltd v Mills (2007) 71 NSWLR 1 at 4 [19]; Smith bht Magnusson v NRMA Insurance Australia Ltd [2008] NSWDC 261 at [29]-[34] and [39]-[42]; and Fairhurst (bht NSW Trustee and Guardian) v Fairhurst [2012] NSWSC 388 at [30]-[40].
23. The occasion for the application made to this Court for the appointment of a protected estate manager under section 41 of the NSW Trustee and Guardian Act was the defendant's recovery of compensation, in the sum of $1.2 million inclusive of costs, for personal injuries suffered on 27 November 2010. Those injuries were suffered in a motor accident in which she was a pillion passenger on a motorbike owned and controlled by her husband, the plaintiff's father. Her injuries included a severe traumatic brain injury.
24. The defendant ostensibly lodged a claim for compensation under the Motor Accidents Compensation Act. It was purportedly settled by her husband's insurer in course of negotiations associated with an assessment hearing conducted by CARS on 21 July 2015.
25. On that date, with the benefit of assistance from the Compensation Solicitors and counsel, and with the support of her family (her husband, her son and a daughter), the defendant ostensibly executed a "Deed of Release and Indemnity" in favour of the insurer in return for the insurer's promise to pay $1.2 million inclusive of costs in full and final settlement of all claims she may have had under the Motor Accidents Compensation Act. Her execution of the Deed was witnessed by her son, the plaintiff.
26. A year earlier, the Compensation Solicitors and the solicitors acting for the insurer obtained from a clinical psychologist, Dr L, medical reports (dated 20 May and 19 June 2014) directed to the question whether the defendant had capacity to understand and provide legal instructions, and to make decisions, in respect of her prosecution of her claim for compensation.
27. In instructing Dr L, the solicitors took as their guide to the meaning of "legal incapacity" a particular reading of clause 1.6.27 and 8.11.3 of the Claims Assessment Guidelines, referrable to section 92 of the Motor Accidents Compensation Act.
28. That section provides as follows: "92 Claims exempt from assessment (1) A claim is exempt from assessment under this Part if: (a) the claim is of a kind that is exempt under Motor Accidents Claims Assessment Guidelines or the regulations, or (b) a claims assessor has made a preliminary assessment of the claim and has determined (with the approval of the Principal Claims Assessor) that it is not suitable for assessment under this Part. (2) If a claim is exempt from assessment under this Part, the Principal Claims Assessor must, as soon as practicable, issue the insurer and claimant with a certificate to that effect (enabling court proceedings to be commenced in respect of the claim concerned)."
29. A certificate of exemption under section 92(2) may be issued consequent upon the operation of section 92(1)(a) or that of section 92(1)(b).
30. There appear to be no regulations of a type contemplated by section 92(1)(a).
31. Clause 8.11.3 of the Claims Assessment Guidelines provides as follows (with emphasis added): "8.11 For the purpose of section 92(1)(a), the PCA shall issue a certificate of exemption when , as at the time of the consideration of the application, and after a preliminary assessment of the claim, the PCA is satisfied that the claim involves one or more of the following circumstances: 8.11.1 liability is expressly denied by the insurer, in writing, but only in circumstances where liability is denied because the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle is denied; (Note: Only denials of liability where fault is denied will satisfy this requirement. Denials of liability for any other reasons, but where the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle is not denied, will not satisfy this requirement.) 8.11.2 (omitted); (Note: Under clause 1.2, the omission of clause 8.11.2 applies to applications received at CARS on or after the date these Guidelines come into effect. The former clause 8.11.2 continues to apply to applications received before the date these Guidelines come into effect.) 8.11.3 the claimant, or in a claim for an award of damages brought under the Compensation to Relatives Act 1897 one of the dependents, is a 'person under a legal incapacity'; (Note: See definition in Chapter 1 at clause 1.6.27) 8.11.4 the person against whom the claim is made is not a licensed or other CTP insurer; 8.11.5 the insurer has notified the claimant, and the owner or driver of the motor vehicle against which the claim has been made under the third-party policy provided for in section 10 of the Act, in writing, that it declines to indemnify that owner or driver; and/or 8.11.6 the insurer alleges that the claim is a fraudulent claim in terms of the circumstances of the accident giving rise to the claim. (Note: For example where it is alleged that the accident may have been staged or where a person claiming to have been a passenger in the vehicle is alleged to have been the driver of the vehicle.)"
32. The marginal note to clause 8.11.3 refers a reader to clause 1.6.27 of the Claims Assessment Guidelines. That clause is in the following terms: "Person under legal incapacity includes: (a) a child under the age of 18 years; (b) a temporary patient, continued treatment patient or forensic patient within the meaning of the Mental Health Act 1990; (c) a person under guardianship within the meaning of the Guardianship Act 1987; (d) a protected person within the meaning of the Protected Estates Act 1983; and (e) an incommunicate person, being a person who has such a physical or mental disability that he or she is unable to receive communications, or express his or her will, with respect to his or her property or affairs." Note: At the time of publication of these Guidelines, this definition has been modelled on, and is similar to, the definition of 'Person under legal incapacity' in section 3 of the Civil Procedure Act 2005."
33. The definition for which section 3(1) of the Civil Procedure Act provides is currently in the following terms: "person under legal incapacity means any person who is under a legal incapacity in relation to the conduct of legal proceedings (other than an incapacity arising under section 4 of the Felons (Civil Proceedings) Act 1981) and, in particular, includes: (a) a child under the age of 18 years, and (b) an involuntary patient, a forensic patient or a correctional patient within the meaning of the Mental Health Act 2007, and a person under guardianship within the meaning of the Guardianship Act 1987, and (c) a protected person within the meaning of the NSW Trustee and Guardian Act 2009, and (d) an incommunicate person, being a person who has such a physical or mental disability that he or she is unable to receive communications, or express his or her will, with respect to his or her property or affairs."
34. The Guidelines definition differs from the current Civil Procedure legislation in three material respects. First, it omits the CPA's introductory words tying the concept of legal incapacity to the business at hand: "a legal incapacity in relation to the conduct of legal proceedings". Secondly, it has not been updated to notice that the Protected Estates Act 1983 was repealed and replaced by the NSW Trustee and Guardian Act in 2009. Thirdly, it incorporates nothing equivalent to rule 7.13 of the Uniform Civil Procedure Rules 2005 NSW ("UCPR"), which provides, in substance, that the concept of a "person under legal incapacity" includes (for the purpose of the rules of court, in UCPR Part 7, governing the appointment of a tutor) "a person who is incapable of managing his or her own affairs".
35. At first blush, the absence from the Motor Accidents Compensation legislation of an equivalent of UCPR rule 7.13 appears anomalous. However, it appears otherwise when one takes into account the inclusive (non-exhaustive) nature of the definition of "person under legal incapacity" for which clause 1.6.27 of the Guidelines provides and the nature, scope and intendment of section 92(1)(b) of the Motor Accidents Compensation Act.
36. Clause 8.11.3 of the Guidelines operates in a mandatory way in the context of section 92(1)(a) of the Act, reading the reference to the Protected Estates Act 1983 NSW as a reference to section 38 of the NSW Trustee and Guardian Act. Section 92(1)(b) supplements section 92(1)(a) and clause 8.11.3 by operating, as does UCPR rule 7.13 for a different purpose, to allow an exercise of practical wisdom (constrained by the subject matter, scope and purpose of applicable legislation) designed to further the objects of the legislation in a principled, pragmatic way.
37. Taking the Claims Assessment Guidelines as their cue, the parties' solicitors jointly procured from Dr L an opinion that: (a) the defendant was not an "incommunicate person" within the meaning of clause 1.6.27 of the Guidelines' definition of "a person under legal incapacity"; and (b) semble, having regard to the definition of "incommunicate person" and cognitive testing, the defendant possessed capacity to instruct her lawyers in the conduct of her compensation claim; but (c) applying the "test" of incapacity for self-management set out in DW v JMW [1983] 1 NSWLR 61 at 63, "cognitive, behavioural and emotional sequelae to [defendant's] traumatic brain injury … disadvantage her in conducting her financial affairs competently and place her at significant risk of either dissipating or losing the money awarded as compensation for the injuries sustained in her motorcycle accident".
38. The "test" of incapacity for self-management set out in DW v JMW expressly mirrors that found in PY v RJS [1982] 2 NSWLR 700 at 702 C-D. In both cases, Powell J defined incapacity by reference to a capacity for "dealing, in a reasonably competent fashion, with the ordinary routine affairs of man". This so-called "objective test" has recently fallen from favour in case-law charted in A v A [2015] NSWSC 1778 at [62]-[67], presently under challenge in the Court of Appeal. The alternative "subjective" approach, drawing upon Gibbons v Wright (1954) 91 CLR 423 at 434-438, measures an individual's capacity for self-management against the "affairs" of the particular individual rather than a hypothetical construct such as "the ordinary affairs of man".
39. I intend no criticism of Dr L in observing that I have no confidence in the correctness of the doctor's opinion that the defendant was capable of providing instructions for the conduct of her compensation claim. It was based on inadequate guidance about the meaning of the expression "person under legal incapacity". It failed to address tension between a finding that the defendant was capable of providing instructions for the conduct of her claim but incapable of managing the fruits of a successful claim.
40. Armed with Dr L's opinion, the lawyers proceeded to a "settlement" of the defendant's compensation claim (without the approval of any court or any authority designed formally to bind a person incapable of self-management) on terms (said, in submissions, to have been "accepted" by the CARS assessor appointed to assess the defendant's claim) that saw the agreed settlement sum paid into the defendant's Compensation Solicitors' trust account, from which the costs and disbursements of the solicitors (including counsel's fees), and other expenses, were paid, without any formal process of assessment other than the acquiescence of the defendant and her family, leaving a balance to which the plaintiff would have the Court's protected estate management orders attach.
41. The affidavits filed in support of the plaintiff's application for protected estate management orders hinted at assets of the defendant beyond the compensation monies held by her Compensation Solicitors in a controlled moneys account, but (I find, without any intention to deceive) the affidavits withheld full disclosure of the defendant's financial circumstances. This manifested, I suspect, a failure to appreciate that orders, as sought, for the appointment of a protected estate manager would attach the whole of the defendant's estate, not merely compensation moneys held on trust for her.
42. Leaving aside for the moment the youth of the plaintiff as a prospective protected estate manager, there are several unusual features of this case. First, in formal terms, a bevy of lawyers have allowed themselves to be misdirected in the protection of the defendant's welfare and interests by their misreading of the definition of the expression "persons under legal incapacity" in the Claim Assessment Guidelines. Secondly, the lawyers failed to see incongruity in a medical opinion to the effect that a person incapable of managing her affairs could give instructions for the prosecution, and settlement, of a claim to compensation which she lacked capacity to manage. Thirdly, the Compensation Solicitors and counsel evidently failed to appreciate the significance of a conflict between their professional and fiduciary duties to the defendant (on the one hand), and (on the other hand) their personal interest, in settlement of the defendant's compensation claim on a "costs inclusive" basis, followed by their appropriation of compensation monies to the payment of their fees and disbursements without regulatory oversight. Fourthly, the lawyers left themselves open to an apprehension that, by a proceeding in an unorthodox manner, they were seeking, in their own interest, to circumvent a regulatory regime designed to ensure that a person in need of protection is fully protected.
43. I do not detect bad faith on the part of any of the lawyers from time to time acting on behalf of the defendant, but a lack of appreciation of how an exercise of protective jurisdiction engages with compensation claims by a person who is, or may be, incapable of managing his or her affairs.
44. With the intention of bringing the affairs of the defendant fully within the protective fold, on 11 May 2016 I made orders to the following effect in chambers: (1) DECLARE, pursuant to section 41(1)(a) of the NSW Trustee and Guardian Act, that the defendant is incapable of managing her affairs. (2) ORDER, pursuant to section 41(1)(a) of the NSW Trustee and Guardian Act, that the estate of the defendant be subject to management under the Act. (3) RESERVE for further consideration the application of the plaintiff to be appointed manager of the estate of the defendant. (4) ORDER, pending determination of the plaintiff's application for appointment as manager of the estate of the defendant, or further order, that the plaintiff be appointed receiver and manager of the estate of the defendant. (5) ORDER, subject to further order, that the powers of the plaintiff as receiver and manager of the estate of the defendant be limited to: (a) directing the defendant's Compensation Solicitors: (i) to pay into court, on the account of the defendant in these proceedings, all monies held by them on trust for the defendant being proceeds of the settlement recorded in the Deed of Release and Indemnity dated 21 July 2015; and (ii) to provide, for presentation to the Court in these proceedings, a written accounting for so much of those settlement monies as is not ostensibly held on trust by the Compensation Solicitors for the defendant; and (b) preserving the estate of the defendant; and (c) acting in accordance with any direction given by the Court or any written direction given by the NSW Trustee. (6) ORDER, subject to further order, that the defendant's Compensation Solicitors by themselves their servants and agents be restrained from disposing of or dealing with all monies presently held by them on trust for the defendant otherwise than by paying those monies into court, on the account of the defendant, in these proceedings. (7) ORDER that the plaintiff, no later than 16 May 2016 or such other time as may be appointed by the Court, file (and serve on the NSW Trustee) (a) an affidavit, or affidavits, accounting for the settlement sum of $1.2 million referred to in the Deed of Release and Indemnity dated 21 July 2015; and (b) an affidavit, or affidavits, deposing to the assets and liabilities of the defendant (including, but not limited to, that settlement sum). (8) ORDER that these proceedings be listed before the Protective List Judge on 16 May 2016 for directions. (9) ORDER that the plaintiff, no later than 12 May 2016, serve on the defendant's Compensation Solicitors copies of the summons filed in these proceedings, the plaintiff's supporting affidavit and these orders. (10) ORDER that the plaintiff, no later than 12 May 2016, serve on the NSW Trustee copies of the same material. (11) RESERVE to all interested persons (including the NSW Trustee and the defendant's Compensation Solicitors) liberty to apply to the Protective List Judge on 12 hours' notice.
45. These orders were not fully complied with by 16 May 2016. In particular the defendant's settlement monies had not been paid into court, and the summary statement of assets and liabilities of the defendant placed before the Court was inadequate. The statement indicated, in only general terms, that the defendant owned a share of a "unit" in Melbourne which was "to be sold".
46. On 16 May 2016 a solicitor appeared for the plaintiff and the NSW Trustee appeared (by Ms Brouwer) to assist the Court. Having outlined the nature of problems with the course of the proceedings, I made orders and notations that included orders and notations to the following effect: (1) ORDER that the plaintiff, no later than 5pm that day, advise the NSW Trustee in writing of the nature of the defendant's interest in a Melbourne "unit" and proposals for sale of that interest. (2) ORDER, subject to further order, that the time for compliance with earlier orders of the Court be extended. (3) NOTE that, in the event that the Court's orders of 11 May 2016 are not complied with in a full and timely manner, the Court will give consideration to the question whether management of the defendant's estate should be committed to the NSW Trustee. (4) ORDER that the proceedings be listed before the Protective List Judge on 25 May 2016 for further consideration (5) NOTE that, subject to any further orders of the Court, the appointment of the plaintiff as receiver and manager of the estate of the defendant is continuing. (6) ORDER that the solicitor for the plaintiff liaise with the NSW Trustee in management of the estate of the defendant under receivership and in the preparation of these proceedings for further consideration. (7) RESERVE to all interested persons (including the NSW Trustee and the compensation lawyers) liberty to apply to the Protective List Judge on 12 hours' notice.
47. On 18 May 2016, by two deposits, compensation monies of the defendant, in the total sum of $1,081,817.70 were paid into court by the Compensation Solicitors.
48. On 25 May 2016 the plaintiff appeared by and with counsel; the Compensation Solicitors appeared, with the Court's leave, by senior counsel, to explain the course of events in the conduct of the compensation proceedings; and Ms Phang appeared for the NSW Trustee.
49. With the benefit of those appearances, and supplementary evidence provided to the Court, I reserved judgment on the plaintiff's summons, noting that, in the meantime, the receivership orders were sufficiently flexible to allow management of the defendant's estate to proceed under the direct supervision of the NSW Trustee.

THE NATURE OF THE PROTECTIVE JURISDICTION

1. A measure of Australian society in the current age is that many of those in need of the Court's protection (upon an exercise of protective jurisdiction of the type classically described in Secretary, Department of Health and Community Services v JWB and SMB (Marion's case) (1992) 175 CLR 218 at 258-259) are individuals who have recovered, or who may have an entitlement to recover, an award of compensation as damages, at Common Law or under a statute, for personal injuries suffered.
2. A recurrent theme in the work of the Court's Protective List is the necessity of reconciling, to the demands of an exercise of protective jurisdiction, the activities of lawyers who are, or who have been, engaged in the conduct of an action for damages at Common Law or, in the context of the Motor Accidents Compensation Act, an assessment process preliminary to the commencement of such an action.
3. There is no necessary conflict in the operation of the Court's protective jurisdiction and the endeavours of those engaged in the conduct of personal injury (common law) compensation proceedings.
4. However, each branch of the law has a dynamic, an imperative of its own. Common lawyers predicate their work upon a vindication of a personal right (for example, on a cause of action in negligence), against a wrongdoer (or an insurer of a wrongdoer), that resides in a person generally assumed to be an autonomous individual. The protective jurisdiction of the Court is predicated upon a need, in the public interest, to protect the welfare and interests of those individuals who cannot take care of themselves: individuals incapable of exercising the autonomy all are generally assumed, in common law proceedings, to enjoy. The work of a common law advocate is quintessentially adversarial in character. The protective jurisdiction is instinctively managerial.
5. An exercise of protective jurisdiction is informed, inter alia, by a hierarchy of principles, proceeding (as noted in CJ v AKJ [2015] NSWSC 498 at 27) from a high to a lower level of abstraction: 1. An exercise of protective jurisdiction is governed by the purpose served by the jurisdiction (protection of those not able to take care of themselves): Marion's case (1992) 175 CLR 218 at 258. 2. Upon an exercise of protective jurisdiction, the welfare and interests of the person in need of protection are the (or, at least, a) paramount consideration ("the welfare principle"): Holt v Protective Commissioner (1993) 31 NSWLR 227 at 238B-C and 241A-B and FG; A (by his tutor Brett Collins) v Mental Health Review Tribunal (No 4) [2014] NSWSC 31 at [146]-[147]. 3. The protective jurisdiction is commonly described as "parental and protective". It exists for the benefit of the person in need of protection, but it takes a large and liberal view of what that benefit is, and will do on behalf of a protected person not only what may directly benefit him or her, but what, if he or she were able to manage his or her own affairs, he or she would, as a right minded and honourable person, desire to do: HS Theobald The Law relating to Lunacy (London, 1924), pages 362-363, 380 and 462; Protective Commissioner v D (2004) 60 NSWLR 513 at 522 [55] and 540 [150]. 4. Whatever is to be done, or not done, upon an exercise of protective jurisdiction is generally measured against what is in the interests, and for the benefit, of the person in need of protection: Holt v Protective Commissioner (1993) 31 NSWLR 227 at 238D-F and 241G-242A; GAU v GAV [2014] QCA 308 at [48].
6. The protective jurisdiction is also required to be administered, in the interests of the protected person, without strife in the simplest and least expensive way: Theobald, The Law relating to Lunacy, pages 380 and 382.
7. There are many points at which an exercise of common law jurisdiction and an exercise of protective jurisdiction may intersect. An attempt to catalogue them might do no more than to emphasise, first, the diversity of circumstances in which, under the Common Law, a cause of action for damages can arise and, secondly, the breadth of the protective jurisdiction.
8. The limits (or scope) of the Court's inherent protective jurisdiction have not, and cannot be, defined save by reference to the purpose governing an exercise of the jurisdiction: Marion's case (1992) 175 CLR 218 at 258, citing Re Eve [1986] 2 SCR 388 at 413-414 and 427; 31 DLR (4th) 1 at 19 and 29 and Wellesley v Duke of Beaufort (1827) 2 Russ 1 at 20; 38 ER 236 at 243.
9. In contemporary Australian society two points of intersection between the common law and protective jurisdictions routinely encountered are: (a) rules of court (found in UCPR Part 7 Division 4, rules 7.13-7.18) that bar the conduct of proceedings, in courts governed by those rules, by or against a legally incapacitated person otherwise than through a tutor; and (b) legislative rules (found in CPA Part 6 Division 4, sections 74-80, read with the definition of "person under legal incapacity" in CPA section 3(1)) governing both the settlement of court proceedings brought by or against a person under legal incapacity and the application of money recovered in such proceedings brought on behalf of an incapacitated person.
10. These legal rules provide, in most cases, a structured means for protection of the interests of those in need of protection engaged in court proceedings governed by the Civil Procedure Act and the Uniform Civil Procedure Rules. They do not apply to the administrative assessment process for which the Motor Accidents Compensation Act provides.
11. They are not, however, exhaustive of the Court's protective jurisdiction. That jurisdiction extends, for example, to: 1. supervision of the appointment of a tutor authorised to make or defend a claim on behalf of a person incapable of managing his or her own affairs: Re P [2006] NSWSC 1082, approved in Bobolas v Waverley Council [2012] NSWSC 126 at [60]-[62] 2. the appointment and supervision of a receiver and manager authorised to conduct personal injury compensation proceedings, reserving questions about the identity of any protected estate manager until the size and nature of an estate, and the needs of the person in need of protection, are better known: Re W and L (Parameters of protected estate management orders) [2014] NSWSC 1106 at [50] 3. approval of settlement of a claim made by, on behalf of or against a person under a legal incapacity: Permanent Trustee Company Ltd v Mills (2007) 71 NSWLR 1.
12. The inherent, protective jurisdiction of the Court can generally be called in aid for solution of problems that cannot readily be dealt with within ordinary administrative arrangements attending protective legislation (Re Eve [1986] 2 SCR 388 at 411; 31 DLR (4th) 1 at 17) or as a means of aiding the due operation of a statutory scheme for the protection of a person incapable of managing his or her affairs (P v NSW Trustee and Guardian [2015] NSWSC 579 at [116]).
13. The Court's inherent jurisdiction is supplemented by legislation (principally Chapter 4, including section 41, of the NSW Trustee and Guardian Act) designed to engage the administrative infrastructure for which that Act provides, including authorisation of the NSW Trustee (supervised by the Court) to take protective action.
14. Although "legal incapacity" can arise in several ways (as illustrated by the definition of "person under a legal disability" in CPA section 3(1)), in the absence of a finding of incapacity by a court, NCAT or the Mental Health Review Tribunal, the central concept, so far as it applies to an adult, is the concept of incapacity for self-management.
15. That concept finds express recognition, for example, in UCPR rule 7.13 and the NSW Trustee and Guardian Act, section 41(1). Each of these provisions refers to a person who is "incapable of managing his or her affairs". Substantially, the same concept is an integral feature of the Court's inherent protective jurisdiction: PB v BB [2013] NSWSC 1223 at [39]-[41], [47], [54] and [57]; Re AAA [2016] NSWSC 805 at [19]-[41].
16. In the context of section 92(1) of the Motor Accidents Compensation Act the expression "person under a legal incapacity" found in clause 8.11.3 (and defined, inclusively, in clause 1.6.27) of the Claims Assessment Guidelines is capable of including (without any equivalent of UCPR rule 7.13) a person incapable of managing his or her own affairs.
17. If a claimant to compensation under the Motor Accidents Compensation Act is not capable of managing his or her own affairs (such as to attract the jurisdiction of the Court to make protective orders, the jurisdiction of a court to appoint a tutor under UCPR rules 7.13-7.18, or the jurisdiction of NCAT to appoint a financial manager or a guardian under the Guardianship Act 1987 NSW) his or her claim is, prima facie, "not suitable for assessment" under Part 4.4 even if there is no subsisting protected estate management order.
18. Such a claim should generally be determined by a court with the benefit of a regime for the appointment and supervision of a tutor.
19. Of central significance to a determination of whether a person is, or is not, capable of managing his or her own affairs is the functionality of the person's management capacity, not: (a) his or her status as a person who may, or may not, lack "mental capacity" or be "mentally ill"; or (b) particular reasons for an incapacity for self-management: PB v BB [2013] NSWSC 1223 at [5]-[9] and [50].
20. The "affairs" the subject of an enquiry about "management" are the affairs of the person who is need for protection is under scrutiny, not some hypothetical construct: Re R [2014] NSWSC 1810 at [94]. An inquiry into whether a person is or is not capable of managing his or her affairs focuses not merely upon the day of decision, but also the reasonably foreseeable future: McD v McD [1983] 3 NSWLR 81 at 86C-D.
21. Although the concept of incapacity for self-management is sometimes approached by the formulation of various "tests" of incapacity, the concept bears the ordinary meaning of language used to describe it, informed by the purpose and principles of the protective jurisdiction: CJ v AKJ [2015] NSWSC 498 at [27]-[40].

ANALYSIS OF THIS CASE

1. On an application of these principles, and despite their perceptions of infelicities in the drafting of clauses 1.6.27 and 8.11.3 of the Claims Assessment Guidelines, the lawyers representing the defendant in the making of her claim for compensation should have recognised that, prima facie, she was, as she presently is, a "person under a legal incapacity". She was apparently no more able to manage the conduct of a claim resulting in a $1.2 million compensation settlement than she is capable of managing that sum without a protected estate manager.
2. The fact that she was not an "incommunicate person" does not mean that she was not a person under legal incapacity. Nor does the fact that no person had applied for, or obtained, a protected estate management order under the NSW Trustee and Guardian Act, or a financial management order under the Guardianship Act 1987 NSW, so as to make her a "protected person" within the meaning of the NSW Trustee and Guardian Act, section 38.
3. There was no justification for the defendant's Compensation Solicitors (or the insurer with whom they negotiated a settlement) to take upon themselves (with the defendant's family's acquiescence, but without clear authority on behalf of the defendant herself) settlement of her claim for compensation or, more particularly, appropriation of her assets in payment of their own remuneration and expenses.
4. If it be the case (as I anticipate enquiries by the NSW Trustee might confirm) that the amount of compensation paid by the insurer, on the defendant's account, under the settlement agreement can be justified as appropriate, three problems nevertheless come to the fore. First, by acquiescing in a settlement "inclusive of costs" the defendant's lawyers unacceptably placed their personal interests in conflict with their professional and fiduciary duties to the defendant. Secondly, they did this at a time when, on a construction of Dr L's opinion most favourable to them, the defendant was incapable of managing her affairs. Thirdly, they failed to appreciate the need for regulatory approval before appropriating any part of the defendant's compensation money to the payment of their costs. They evidently did not realise that, in management of the defendant's affairs, she might be in as much need of protection vis-à-vis them as she is vis-à-vis others.
5. Equitable principles governing fiduciaries, with a need to be conscious of conflicts between duty and interest, generally apply to lawyers in both the formation and performance of agreements for remuneration as part of a professional retainer: Law Society of New South Wales v Foreman (1994) 34 NSWLR 408 at 435-437.
6. By effecting an "inclusive of costs" form of settlement, and in appropriating settlement monies towards payment of their remuneration without the regulatory oversight of a court or, at least, the NSW Trustee, the lawyers exposed themselves, as fiduciaries, to an order that they account for moneys received.
7. Belated realisation of this led, commendably, to the Compensation Solicitors indicating a preparedness to submit to such procedures as the Court might specify for an assessment, or other form of review, of their costs and disbursements.
8. In the first instance, the appropriate authority to review those costs and disbursements is the NSW Trustee in the course of its supervision of management of the defendant's protected estate under the NSW Trustee and Guardian Act.
9. In the circumstances of this case, having regard to the course of events, the Court should retain oversight of management of the defendant's estate until such time as it can be satisfied that any irregularities attending management of the defendant's affairs to date have been addressed. For that purpose, the NSW Trustee, having conducted such enquiries as it deems necessary or appropriate, should report to the Court on the reasonableness or otherwise of the purported settlement of the defendant's claim for compensation and related questions, particularly quantification of legal costs and disbursements reasonably and fairly chargeable to her account.
10. Although I apprehend that the settlement and ancillary transactions will be found to have been reasonable (approved as they have been by the defendant's close-knit family) this needs, in the defendant's interests, to be confirmed by a formal process. It is not, and should not be seen, as mere formality. It is important, not only as means of ensuring that the defendant's interests have been protected, but as a means of demonstrating that the interests of all persons in her position must be protected.
11. I do not exclude the possibility that the defendant's lawyers may apply for an order (as sought in Ability One Financial Management Pty Ltd and another v JB by his tutor AB [2014] NSWSC 245, and considered in greater detail in C v W (No 2) [2016] NSWSC 945 at [9]-[12] and [45]-[47]) that they be excused for any breach of fiduciary obligations in taking remuneration to which they were not entitled. However, that may not prove necessary.
12. My expectation is that any problems associated with the informal procedures hitherto followed having been made manifest, the plaintiff and the defendant's lawyers will work constructively with the NSW Trustee in regularising management of the defendant's estate so that no action will need to be taken beyond a formal notation of the NSW Trustee's report.
13. Nevertheless, I draw to attention, not only the Court's protective jurisdiction, but also its general supervisory jurisdiction over lawyers as officers of the Court, extending as it does to the regulation of charges made for work done and to prevention of overcharging: Woolf v Snipe (1933) 48 CLR 677 at 678-679; Re Felicity; FM v Secretary, Department of Family and Community Services (No 4) [2015] NSWCA 19 at [18]-[20] and [52].
14. I do not intend, by this reference, to do more than notice the nature of jurisdiction available to the Court. I have not undertaken any exercise designed to assess the reasonableness, or otherwise, of the "settlement" or costs and disbursements charged to the account of the defendant. In the first instance at least, that is a question for the NSW Trustee's consideration in its supervision of management of the defendant's estate.
15. Noting that all members of the defendant's family are agreed that the plaintiff is a suitable person to manage the defendant's protected estate, and having had an opportunity to assess his suitability in his personal appearance before the Court, I am content (consistently with Holt v Protective Commissioner (1993) 31 NSWLR 227) to appoint him manager of the defendant's estate under the administrative regime for which the NSW Trustee and Guardian Act provides. He is young; but, having now been appraised of how the work of the Court and the NSW Trustee is conducted, he can, I trust, be relied upon to perform the functions of a protected estate manager.
16. Accordingly, I make orders and notations to the following effect: 1. NOTE the orders and notations made on 11 and 16 May 2016; the payments into Court made on 18 May 2016; and the appearances on 25 May 2016. 2. NOTE the summons and affidavits filed in support of the summons. 3. ORDER, pursuant to s 41(1)(b) of the NSW Trustee and Guardian Act 2009 NSW, that the plaintiff be appointed manager of the estate of the defendant subject to the orders and direction of the NSW Trustee. 4. ORDER that, subject to any further of the Court or any order or direction of the NSW Trustee, all moneys standing to the credit of the defendant in these proceedings, including accrued interest, be paid out to the NSW Trustee pending approval by the NSW Trustee of a plan of management for management of the protected estate of the defendant by the plaintiff as manager. 5. ORDER that the plaintiff may not do anything in reliance on his appointment as manager of the estate of the defendant until the NSW Trustee has authorised him to assume management of the defendant's estate in that capacity. 6. ORDER that the plaintiff's appointment as receiver and manager of the estate of the defendant (pursuant to Orders made on 11 May 2016) be discharged on the grant to him by the NSW Trustee (pursuant to these Orders) of authority to assume management of the defendant's estate in capacity of manager. 7. ORDER, pursuant to section 68 of the NSW Trustee and Guardian Act, that the plaintiff give such, if any, security in respect of his management of the defendant's estate as the NSW Trustee may determine to be appropriate. 8. ORDER, subject to further order, that the NSW Trustee report to the Court on the following questions 1. whether or not the agreement purportedly made for settlement of the defendant's claim for compensation under the Motor Accidents Compensation Act should be approved by the Court as an agreement made in the interests, and for the benefit, of the defendant. 2. whether the costs and disbursements appropriated by the Compensation Solicitors, from moneys paid to them pursuant to that settlement agreement, should be approved as fair and reasonable. 3. whether any (and, if so, what) steps should be taken on behalf of the defendant consequentially upon the answers to these questions. 1. RESERVE all questions relating to the costs of these proceedings pending consideration of the NSW Trustee's report. 2. ORDER that the plaintiff provide a copy of these orders to: 1. (a) the defendant; 2. (b) the husband of the defendant; 3. (c) the daughter of the defendant; and 4. (d) the NSW Trustee. 1. ORDER that at the time of providing a copy of these orders to the NSW Trustee, the plaintiff also provide to the NSW Trustee, so far as not already provided, copies of the summons and all affidavits read in support of the summons. 2. ORDER that all interested persons (including the NSW Trustee and the Compensation Solicitors) have liberty to apply as they may be advised.

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: 14 July 2016