AG v AP-G

Supreme Court of NSW|2016-06-16|Before: Lindsay J, Young J

INTRODUCTION

This judgment explains procedures adopted by the Court as a means for protection of the welfare and interests of a young person suffering from a physical disability to such an extent that she is incapable of managing her own affairs in fact, and she is subject to orders for protection of her person and her property, as she transitions from minority, to adulthood, on attaining the age of majority, 18 years.
Pursuant to orders made by the Court at the time her property was subjected to protected estate management (under the NSW Trustee and Guardian Act 2009 NSW), as she approached 18 she was formally reminded of her right to apply for the protected estate management orders affecting her to be discharged or varied, and her protected estate manager filed a report to the Court as an aid to the Court's consideration whether those orders should be discharged or varied.
With the benefit of that report, supplementary affidavits prepared at the instigation of the manager and a report prepared by the NSW Trustee, the Court's determination is that the current regime of protective orders should continue in operation, for the time being, without modification.

THE NATURE OF THE COURT'S PROTECTIVE JURISDICTION

The various orders made by the Court and NCAT, with the important incidental involvement of the NSW Trustee, demonstrate the integrated character of present procedures for performance of the protective functions of the State (historically, the Crown) through different arms of government.
An appreciation of how, and why, the protective jurisdiction of the Court operates as it does (in conjunction with statutory tribunals and agencies of executive government) is assisted by an understanding of the character of the Court's jurisdiction and the historical antecedents of that jurisdiction.
The jurisdiction conferred upon the Court by the NSW Trustee and Guardian Act, and that conferred on NCAT by the Guardianship Act 1987, are modelled upon, or at least analogous to, the Court's inherent jurisdiction. The jurisprudence of the Court, for its part, has been enriched by observance of, and engagement with, specialised decision-makers wrestling with the sometimes intractable, inter-disciplinary problems found, in search of principled, workable solutions, in the protective jurisdiction.
The protective jurisdiction of the Court, both inherent and statutory, exists for the protection of an individual in need of protection because of an incapacity for self-management.
Historically, the "inherent" protective jurisdiction of the Court (as it is routinely called) is grounded upon section 9 of the "New South Wales Act" of 1823, 4 Geo IV chapter 96 (Imp), and clause 18 of the Third Charter of Justice (Letters Patent of 13 October 1823 issued pursuant to the New South Wales Act), the operation of which has been preserved, inter alia, by: (a) the Australian Courts Act 1828 (Imp), 9 Geo IV chapter 83, which prescribed the date for reception of English law in New South Wales; and (b) section 22 of the Supreme Court Act 1970 NSW.
Since the commencement of the Supreme Court Act 1970, section 23 of that Act (which provides that the Court has "all jurisdiction which may be necessary for the administration of justice in New South Wales") has also been seen as a general source of "inherent" jurisdiction: Re Q (Young J, 29 May 1985, unreported), extracted in Re W and L (Parameters of Protected Estate Management Orders) [2014] NSWSC 1106 at [75]-[77]; Re C [2012] NSWSC 1097 at [64]-[65]; IR v AR [2015] NSWSC 1187 at [102]; Fountain v Alexander (1982) 150 CLR 615 at 633. Strictly, the section is an independent grant of power: Re W and L [2014] NSWSC 1106 at [79]-[82].
There is a subtle, but potentially important shift in use of the word "inherent" here which recognises the existence of jurisdiction in the Court untrammelled by perceptions of historical constraints of 19th century English practice and procedure: Sutton v Warringah Shire Council (1985) 4 NSWLR 124 at 131G-132C.
That this was an intended consequence of SCA section 23 can be inferred from the antecedents of the section, opaque as they are on the face of the Reports of the NSW Law Reform Commission and parliamentary debates leading to enactment of the section.
The intended operation of the section can be seen in a paper delivered to the New South Wales Bar Association on 10 November 1970 by Mr RD Conacher, then Deputy Chairman of the NSW Law Reform Commission. The paper was delivered after the Supreme Court Act 1970 (Act No. 52) had been enacted but before the commencement of its operation, on 1 July 1972, as amended by the Law Reform (Law and Equity) Act 1972 (No. 28) and the Supreme Court (Amendment) Act 1972 (No. 41).
Mr Conacher's paper, entitled "A General Introduction to the Supreme Court Act, 1970" was part of consultation process designed to bed down the introduction of a Judicature Act system of court administration. The paper includes the following: "[2] [The Supreme Court Act 1970] continues the present Supreme Court (s. 22). The reason, or a major reason, for doing that, instead of setting up a new Court, is to avoid disturbing the operation of such things as the federal Constitution…. [3] We will therefore continue to have the Supreme Court set up in 1823 by the Charter of Justice and still regulated in some in some respects by that Charter and by the Imperial Act 9 Geo. 4 c. 83, the Australian Courts Act 1828. [4] The new Act covers much of the field covered by the Charter and the Act of 1828, as indeed does the legislation now in force. The new Act, however, like most earlier legislation on the subject (cf. 15 Vic. No. 17), does not specify what provisions of the Charter and the Act of 1828 are no longer to have effect. It leaves them operative to some extent, but does not specify to what extent. This is a piece of tidying-up which remains to be done. The legislative power to override the Charter and the Act of 1828 is in section 29 of the Australian Constitutions Act 1850 (13 & 14 Vic. c 59). [5] For the general grant of judicial power we must therefore still look to these old instruments, together with the very general words of section 23 of the Act. It reads - 'The Court shall have all jurisdiction which may be necessary for the administration of justice in New South Wales'. [6] The Australian Courts Act 1828 vested in the Supreme Court jurisdiction similar to that of the Courts of common law at Westminster (s. 3), jurisdiction in equity and at common law similar to that of the Lord Chancellor (s. 11) and ecclesiastical jurisdiction (s. 12). The Charter of Justice empowered the Supreme Court to deal with matters of infancy and lunacy. [7] Section 23 of the new Act will not, I believe, have an immediate effect in altering the jurisdiction of the Court. It will rather be the basis for new development as occasion arises, a more serviceable basis than the Acts and Charter of the 1820s with their references to the jurisdictions of the English Courts of that time. It is based on section 16 of the Judicature Act 1908 of New Zealand. The New Zealand section was considered by the Court of Appeal in New Zealand in Ryder v Hall ((1905) 27 NZLR 385). In that case the section played a part in enabling the Court to hold that it had jurisdiction to give damages in lieu of an injunction, notwithstanding that legislation along the lines of Lord Cairns' Act (the Chancery Amendment Act 1858, 21 & 22 Vict. c 27; cf. Equity Act, 1901, s 9) had not been enacted in New Zealand. …"
The current "inherent" jurisdiction of the Court is thus informed by English legal history associated with establishment of the Court by reference to English institutions, and the formal reception of English law in NSW, in the 1820s; but it is not constrained by the procedural norms and jurisdictional demarcations that characterised the fragmented English court system of that time.
For present purposes the "statutory" jurisdiction of the Court may be found in Chapter 4 (sections 38-100) of the NSW Trustee and Guardian Act. There is found, principally in section 41, a jurisdiction to make protected estate management orders which engage the administrative infrastructure through which the NSW Trustee, under the supervision of the Court, monitors management of all protected estates in NSW and, as the State's manager of last resort, manages some of them.
In Secretary, Department of Health and Community Services v JWB and SMB (Marion's Case) (1992) 175 CLR 218 at 258-259 the High Court of Australia grounded "parens patriae jurisdiction" (of the type exercised by this Court as "protective jurisdiction") in the following extract from the judgment of Lord Eldon LC in Wellesley v Duke of Beaufort (1827) 2 Russ 1 at 20; 38 ER 236 at 243: "[The jurisdiction] belongs to the King [the Crown], as parens patriae, having the care of those who are not able to take care of themselves, and is founded on the obvious necessity that the law should place somewhere the care of individuals who cannot take care of themselves, particularly in cases where it is clear that some care should be thrown round them".
By its embrace, also, of the historical exposition of parens patriae jurisdiction found in Re Eve [1986] 2 SCR 388 at 407-411; (1986) 31DLR (4th) 1 at 14-21, the High Court may be taken to have accepted that the parens patriae jurisdiction over adults and minors is, procedurally, substantially the same.
In historical terms, there has been an assimilation of the jurisdiction formerly described as the jurisdiction of the Crown over idiots, lunatics and the like (generically, the "lunacy jurisdiction" of former times) and the jurisdiction of the Crown over infants (sometimes described as the "wardship jurisdiction") exercised by the Lord Chancellor in England, as a delegate of the Crown, at and before the time the Supreme Court of NSW was established (in 1824) and NSW received English law (in 1828).
That assimilation took place in England as a consequence of the falling away of feudal incidents attaching to different categories of persons in need of protection (historically, protected by the Crown exercising control over the property, if not also the person, of such persons), and an associated shift in focus towards decision-making governed by the fundamental principle that the welfare and interests of the particular person in need of protection are paramount: Re Eve [1986] 2 SCR 388 at 407-411; 31 DLR (4th) 1 at 14-17.
The protective jurisdiction of the Court extends to the making of orders for protection of "the person" (that is, the body) and "the estate" (that is, property) of the person in need of protection.
In historical terms, an exercise of protective jurisdiction has often focused, procedurally, on the making of a formal determination that a person is in need of protection, because of an inability to manage his or her own affairs, coupled with orders for management of those affairs. The making of such a determination, and its revocation, are conditioned not only on a "need" for protection, but also upon the "utility" of protective orders. Both the making and the revocation of management orders are governed by the protective purpose of the jurisdiction, and a tradition of pragmatic, empirical implementation.
In former times, upon an exercise of parens patriae (lunacy, protective) jurisdiction, a determination was made by a court (by a jury returning a verdict, acting upon a commission issued by the Lord Chancellor requiring the conduct of an inquiry, as to whether a particular person was an idiot, a lunatic or a person incapable of self-management in as much need as a lunatic) invoking the jurisdiction. Upon an exercise of parens patriae (wardship, protective) jurisdiction, a determination was made that an infant (a minor by another name) become a ward of the court.
Such a determination provided a convenient boundary designed to mark out an exercise of a specialist jurisdiction, but it was not a necessary precondition to an exercise of the jurisdiction in all cases. Lesser orders could be made as required. Examples, in aid of the jurisdiction, are an order for the appointment of a receiver and manager of property (JMK v RDC and PTO v WDO [2013] NSWSC 1362); an order for a person to be medically examined (Re WM (a person alleged to be of unsound mind) (1903) 3 SR (NSW) 552). Another example is an order for custody of a child (Carseldine v Director of Department of Children's Services (1974) 133 CLR 345 at 367).
An effective exercise of protective jurisdiction generally requires engagement of a system of administrative support, operating under the supervision of the Court, in management of the affairs of an incapable person: P v NSW Trustee and Guardian [2015] NSWSC 579 at [25]-[34].
A change in the administrative arrangements attending an exercise of protective jurisdiction does not, of itself, alter the character of protective functions or displace the Court's inherent jurisdiction: Re WM (1903) SR (NSW) 552 at 567 and 569.
The Court's inherent jurisdiction is generally preserved in order to deal with unforeseen or extraordinary problems (Re Eve [1986] 2 SCR 388 at 411; 31 DLR (4th) 1 at 17; Re Victoria [2002] NSWSC 647; 29 Fam LR 157 at [37]-[40]; Re Frieda and Geoffrey [2009] NSWSC 133; 40 Fam LR 608), and as a means of aiding statutory decision-makers in due performance of their functions (P v NSW Trustee and Guardian [2015] NSWSC 579 at [116]).
Under current administrative arrangements presently operating in New South Wales: 1. a declaration by the Court that a person is incapable of managing his or her affairs, coupled with an order that the estate of the person be subject to management under the NSW Trustee and Guardian Act, both of which forms of order are made under section 41(1)(a) of the Act, provide the formal mechanism generally deployed upon an engagement of the Court's jurisdiction over the property of a person incapable of self-management; and 2. those orders are routinely accompanied by an order under section 41(1)(b) of the Act appointing "a suitable person" as manager of the estate of the protected person or committing management of the estate to the NSW Trustee.
These orders engage an administrative regime that allows, and requires, the NSW Trustee to have regular oversight of the management of protected estates, if necessary on a day-to-day basis, with rights of "appeal" (by whatever name known) to NCAT and/or the Court in particular cases. That regime is generally disengaged by an order for revocation of management orders: eg, NSW Trustee and Guardian Act, section 86; Re W and L [2014] NSWSC 1106 at [55]-[101].
It is not the practice of the Court to make protected estate management orders subject to a condition subsequent or until the expiry of a limited time (eg. infancy): AG v AP-G [2013] NSWSC 272 at [7]-[9]; JP v CP [2013] NSWSC 273 at [1]-[4]. One should not exclude the possibility that such orders could be made, as a matter of power, but any circumstances in which such orders would be made, upon a proper exercise of discretion, must be limited. There are three reasons for that.
First, as a matter of principle, and in the ordinary course of experience, protected estate management orders limited to operate for a defined time could not readily be made unless the Court were satisfied that the protected person is presently incapable of managing his or her affairs, and will continue to be so throughout the defined period, but will become capable of self-management at the point of expiry of the period. Factually, this would be an unusual case.
Secondly, the orderly management of a protected estate generally requires the active involvement of administrators (including, depending on the particular case, managers, guardians and the NSW Trustee) in effecting a transition from one state of affairs to another. Property transfers, at law, generally do not happen without a deliberate act of transfer.
Thirdly, as illustrated by Secretary, Department of Family and Community Services; Re "Lee" [2015] NSWSC 1276 at [10]-[12], an orderly transition from one state of affairs to another might require an exercise of ancillary powers incidental to the protective jurisdiction in circumstances in which there might otherwise be no occasion to acknowledge such a power.
These three considerations conspire against the making of protected estate management orders, affecting a minor, designed to "expire" automatically upon the protected person's attainment of the age of majority without an order for their revocation. A revocation order may be made "as of right" and in the ordinary course in a case in which the protected person, upon his or her coming of age, can manage his or her own affairs. However, generally, in each case, the facts of the case must be consulted, and an order must be made, upon a fresh exercise of protective jurisdiction.
A synthesis of the Court's inherent and protective jurisdiction is achieved, inter alia, by section 39 of the NSW Trustee and Guardian Act (which requires everyone exercising functions under chapter 4 of the Act to observe principles, the primary one of which is that "the welfare and interests of" a protected person "should be given paramount consideration"), coupled with: (a) provisions designed to allow the Court to give directions in relation to the administration and management of protected estates; and (b) the absence of any provision displacing the inherent jurisdiction.
The Court's inherent jurisdiction exists to do what is for the benefit of a person incapable of managing his or her own affairs. Its limits (or scope) have not been, 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; Re Eve [1986] 2 SCR 388 at 413-414 and 427; 31 DLR (4th) 1 at 19 and 29).
This purposive approach to an exercise of protective jurisdiction requires that close attention be given to the personal circumstances of each individual whose capacity for self-management comes under scrutiny. Whatever its historical origins, or the present form of administrative machinery aiding its operation, the protective jurisdiction of the Court is plenary and seamless. It is unconstrained by procedural categories that attended the English Lord Chancellor's exercise of similar jurisdiction over lunatics and children in the 1820s. Nevertheless, according to its purpose, it is conditioned upon an examination of the particular circumstances of each person subject to it, paying due regard to the legal significance of a person's attainment of majority.
A natural point of distinction is between those cases in which a person's only disability is youth, and other cases in which an incapacity for self-management arises from a physical disability.
When a minor attains his or her age of majority any legal incapacity that attaches to infancy falls away. Where a physically disabled person is incapable of self-management, that person's incapacity is, in whole or part, a function of the physical disability not, of itself, his or her age.
The protective jurisdiction of the Court over a minor extends to the making of orders affecting the person or property of the minor, as it does in respect of an adult. However, because an age-related legal incapacity of a minor has but a limited time of operation, the necessity for, or operation of, protective orders ordinarily should be reviewed, even if only briefly, at or about the time a person under the Court's protection attains the age of majority. Allowance needs to be made for the possibility that, informed of rights attaching to the age of majority, a young adult might seek, or be entitled, to treatment different from that available to him or her as a minor.
If his or her only incapacity is age related, he or she is entitled to have protective orders discharged. The fact that the Court's jurisdiction may extend to making orders designed (in the interests, and for the benefit, of the young person) to effect an orderly transition to a new life (Re "Lee" '[2015] NSWSC 1276 at [10]-[12]) does not gainsay the basic proposition. Absent an incapacity for self-management, an adult is entitled to manage his or her own affairs unconstrained by protective orders.

THE SCOPE OF PROTECTED ESTATE MANAGEMENT ORDERS

The protected estate management orders affecting the defendant were made (under section 41 of the NSW Trustee and Guardian Act) in terms that subjected the whole of her estate to management under the Act.
There is no occasion to exercise the power of the Court, under section 40 of the NSW Trustee and Guardian Act, to limit the operation of the orders to part only of the defendant's estate.
The jurisdiction to make a partial management order can be beneficial in some cases; but such an order cannot be made routinely without potentially detracting, in a practical way, from the powers of the NSW Trustee to monitor due management of a protected estate: Re Application for partial management orders [2014] NSWSC 1428. The more efficient, and flexible, form of protected estate management orders is generally one that subjects the whole of an estate to management, but is coupled with a direction (under section 64 or section 65 of the NSW Trustee and Guardian Act), or a recommendation to the NSW Trustee that it exercise powers it has under section 71 of the Act, on terms designed to permit a protected person to manage particular property (eg, pension income) on a day-to-day basis. Such a regime of orders reserves the supervisory powers of the NSW Trustee, without limiting its powers to obtain information, allowing it to intervene, if circumstances so require, without a formal application for variation of the management orders generally.
Viewed globally, and with the general principles enunciated in section 39 of the NSW Trustee and Guardian Act held in view, protected estate management orders should only operate so far as necessary to achieve their protective purpose. However, caution is required in exclusion of particular property from a protective regime that operates not only in the present, but prospectively. An exclusion order (as a partial management order might, alternatively, be described), affecting a person incapable of managing his or her affairs, may leave such a person unprotected from neglect, abuse or exploitation (to paraphrase section 39(g)) at a point at which the NSW Trustee is without power or timely information.
As this case illustrates, full protection of a person in need of protection may require consideration of his or her whole circumstances in order to facilitate, for example, the appointment of a guardian or the making of a statutory will. A partial management order (an exclusion order), routinely made, may assume more foresight about future circumstances than is ordinarily in the gift of a decision-maker possessed of limited information.
That said, the particular circumstances of each case invite individual consideration.
In some circumstances, the different regimes of fiduciary management available may approximate each other, with nuanced characteristics. Where a child is without physical disabilities bearing upon his or her decision-making capacity, and can reasonably be expected to manage his or her own affairs in a manner consistent with a level of maturity common to his or her age, in circumstances in which he or she is in a stable domestic environment under the supervision of a parent or guardian, a regime of protected estate management orders limited to defined property (eg., an award of compensation) may operate in a manner analogous to a trust, save that a protected estate management regime carries with it the protective oversight of the NSW Trustee and may involve greater flexibility than is commonly found in a trust. See, for example, AC v OC (a minor) [2014] NSWSC 53, H v H [2015] NSWSC 837 and Re X [2016] NSWSC 275. Costs considerations may distinguish different regimes but, even if they can objectively be identified, they are usually but one factor to be taken into account.

ONGOING GUARDIANSHIP ORDERS

The present proceedings provide no occasion to exercise the Court's inherent jurisdiction (in the context of the Guardianship Act 1987, noticed in IR v AR [2015] NSWSC 1187 at [103]-[108]) to override, or interfere with, the guardianship orders made by NCAT, presently subject to periodic review by NCAT in the ordinary course. Nobody suggests otherwise. Not the plaintiff, the defendant, the defendant's protected estate manager, the NSW Trustee or the Public Guardian.

PROCEDURAL IMPERATIVES

This judgment provides an explanation of the Court's procedures because of a perceived need for such an explanation, not because the Court's determination, in the present case, to maintain the current regime of protective orders without modification involves any special difficulty.
In routine cases, compliance with the "reporting directions" of the type identified in the fourth and fifth of the orders set out in paragraph [6] should not involve great expense or inconvenience to anybody.
Steps must be taken, and decisions need to be made, in the context of a prudential management regime that can be administered, in the interests of the protected person, without strife in the simplest and least expensive way: HS Theobald, The Law Relating to Lunacy (Stevens and Sons, London, 1924), pages 380 and 382.
Of prime concern to the Court is the availability of reliable, responsible evidence of compliance with the reporting directions. A short, insightful affidavit by a responsible person, attaching such documentation as may be necessary and deposing to essential facts of the case, on notice to the NSW Trustee, should ordinarily be sufficient. If more is required, an application appropriate to the circumstances of the case can be made, or directions can be given as required.
In routine cases, orders and notations can generally be made (as in the present proceedings) in chambers without any appearance in circumstances in which it is plain that all interested parties are in regular communication with the NSW Trustee, and the NSW Trustee has no objection to the future course proposed.
The material placed before the Court in the present proceedings is more than ample. It could have been less than that without adverse effect on its utility. However, allowance must be made for the fact that the defendant's estate is large, her personal circumstances are complex, an independent review of her case (drawing together recent developments) has been timely, and an exposition of the Court's practice relating to the transition of a protected person to adulthood has been called for.

CONCLUSION

In these circumstances I have made, in the records of the Court, orders and notations to the following effect: 1. NOTE that, pursuant to orders made on 24 June 2014, Perpetual Trustee Company Ltd ("the Manager") is the manager of the estate of the defendant, subject to the orders and direction of the NSW Trustee. 2. NOTE the Report of the NSW Trustee dated 15 January 2016 and the Report of the Manager dated 21 April 2016. 3. NOTE the affidavits filed by the Manager in support of its Report, including a medical report; an affidavit of a responsible officer of the Manager accounting for the defendant's estate and deposing to the course of its management; an affidavit of the plaintiff deposing to her compliance with the Court's orders and her support for ongoing management of the defendant's estate by the Manager; and an affidavit of service of the Manager's Report and supporting evidence on the NSW Trustee. 4. NOTE that, in accordance with orders made by the Court on 24 June 2014: 1. the plaintiff and the manager have notified the defendant of her right to apply to the Court to seek a revocation of the declaration that she is incapable of managing her affairs and the orders subjecting her estate to administration as a protected estate; and 2. the Manager has reported to the Court in relation to whether or not the defendant has sufficient capacity to manage her own affairs and whether or not the management orders should or should not be revoked or varied. 1. NOTE that no application has been made for the management orders affecting the defendant to be revoked or varied, and the Court makes no orders to that effect, to the intent that the Court's protected estate management orders continue in operation, for the time being, without modification. 2. ORDER that the costs of the Manager of and incidental to its making of its Report to the Court (including the preparation of affidavits filed in support of the Report), and associated costs of the NSW Trustee, be paid out of the estate of the defendant on the indemnity basis. 3. ORDER that the Manager provide a copy of these orders, and the Court's reasons for judgment, to: 1. the plaintiff, as the primary carer of the defendant; 2. the NSW Trustee; and 3. the Public Guardian. 1. ORDER that all interested parties (including the Manager, the NSW Trustee and the Public Guardian) be at liberty to apply as they may be advised.

Amendments 17 June 2016 - In paragraph 30, deletion of "(the latter of which is sometimes described as "wardship" jurisdiction rather than "parens patriae" jurisdiction)". 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: 17 June 2016

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