d Defendant: Public Guardian
NSW Trustee: Amicus Curiae
Representation: unsel:
Plaintiff: R Sheldon SC and G Huxley
First Defendant: Self Represented (by telephone)
Second Defendant: J Merkel (Amicus Curiae)
Third Defendant: C Phang, solicitor
NSW Trustee: (Amicus Curiae): C Phang, solicitor
Solicitors:
Plaintiff: Watson Mangioni
First Defendant: Self Represented
Second Defendant: Aitkin Lawyers (Amicus Curiae)
Third Defendant: NSW Trustee and Guardian
NSW Trustee: C Phang, solicitor
File Number(s): 2015/00209987
[2]
INTRODUCTION
This is an appeal to the Supreme Court (pursuant to clauses 12(1)(b) and 14 of schedule 6 to the Civil and Administrative Tribunal Act 2013 NSW) against guardianship orders made by the Guardianship Division of the NSW Civil and Administrative Tribunal (NCAT) on 6 July 2015.
The plaintiff is one of two sons of the second defendant, the person under guardianship. The first person is her other son. The two sons (both adults) represent the second defendant's immediate family. Her husband, their father, died on 15 May 2015. Her incapacity and his death are immediate causes of the current proceedings.
IR v AR [2015] NSWSC 1187 | Case summary | Zoe
The third defendant is the Public Guardian. The NSW Trustee appears as an amicus curiae. The Public Guardian appears by the solicitor for the NSW Trustee.
The NSW Trustee is a corporation, and an NSW Government agency, constituted by the NSW Trustee and Guardian Act 2009 NSW. The Public Guardian is a public servant holding office under part 7 (sections 77-80A) of the Guardianship Act 1987 NSW.
The first defendant has expressly submitted to the jurisdiction of the Court and, at his insistence, participated in the proceedings, without legal representation, only via a mobile telephone and email, from an undisclosed location (he says) in the vicinity of Croatia.
His refusal to appear in the proceedings by and with the benefit of a lawyer has not assisted an orderly or expeditious determination of the proceedings. One does not readily put aside a suspicion that he has, by a course of conduct, manifested a desire to put himself, his interests and interests of his parents he claims to represent beyond the reach of the Court or any NSW regulatory authority. This may, ultimately, appear to be too harsh a conclusion. However, in the absence of active cooperation on the part of the first defendant, and an explanation of events that presently appear to require an explanation, the Court is bound to exercise caution in exposing an incapable person to risk of exploitation.
The personal relationship between the plaintiff and the first defendant appears, without exaggeration, to border on the toxic. The plaintiff accuses the first defendant of abuse of their mother. The first defendant insists that he lives in fear of his brother.
The second defendant is an 82 year old woman with a moderately severe cognitive impairment that led to NCAT, on each occasion differently constituted, uncontroversially making:
1. on 10 November 2014, a finding that she is "incapable of managing her own affairs" within the meaning of the Guardianship Act 1987, section 25G; and
2. on 2 June 2015 and 6 July 2015, findings that she is "a person in need of a guardian" within the meaning of the Guardianship Act, section 3(1).
Section 3(1) of the Guardianship Act defines a "person in need of a guardian" to mean "a person who, because of a disability, is totally or partially incapable of managing his or her person".
Section 3(2) of the Guardianship Act provides that, in the Act, "a reference to a person who has a disability is a reference to a person:
1. who is intellectually, physically, psychologically or sensorily disabled,
2. who is of advanced age,
3. who is mentally ill within the meaning of the Mental Health Act 2007, or
4. who is otherwise disabled,
and who, by virtue of that fact, is restricted in one or more major life activities to such an extent that he or she requires supervision or social habilitation."
On 10 November 2014 NCAT made a financial management order (under the Guardianship Act, section 25E), to the effect that the estate of the second defendant be subject to management under the NSW Trustee and Guardian Act 2009, and (under section 25M(1)(b) of the Act) it ordered that management of her estate be committed to the NSW Trustee.
In committing management of the estate to the NSW Trustee, NCAT passed over the first defendant on the basis that he was not "a suitable person" for appointment as manager of the estate because, inter alia, there was a conflict between his interests and those of the second defendant.
The Tribunal's finding of incapacity for self-management is not under challenge in these proceedings. Nor, directly, is the financial management order made in favour of the NSW Trustee.
The second defendant is "a person under guardianship" within the meaning of the Guardianship Act, section 3(1) by virtue of a limited guardianship order of NCAT, under section 14 of the Guardianship Act, made on 2 June 2015 (in favour of the Public Guardian) and varied on 6 July 2015. The variation took the form of guardianship orders limiting the functions of the Public Guardian to an Australian domain and appointing the first defendant as her guardian for the purpose of travel to Croatia, a jurisdiction with which NSW has no reciprocal arrangements for the protection of persons in need of guardianship.
The second defendant's sons agree that, with the benefit of a regime of protective orders, she should be permitted to travel to Croatia. So too do the Public Guardian (currently, on an interlocutory basis, the second defendant's only guardian) and the NSW Trustee, her financial manager.
Unfortunately, the plaintiff and the first defendant are engaged, in Croatia as well as in NSW, in hotly contested litigation over both the person and property of the second defendant. They are unable to agree on arrangements for the second defendant's travel to and residence in Croatia, thereby inviting doubts about the second defendant's welfare should she travel beyond Australia, possibly beyond the reach of NSW regulatory authorities.
To the extent that the second defendant is able to express any opinion, she decidedly favours the first defendant over the plaintiff. Whether her opinions are fully informed by a true appreciation of all material facts is an open question, bearing in mind the nature and extent of her cognitive impairment.
The second defendant wants to travel to Croatia, firstly, to attend a funeral of her late husband (yet to be arranged) in that country and, secondly, to vacation there, as she and her husband did each year for more than two decades or so during their married life.
The plaintiff appeals to the Court against the guardianship orders made by NCAT on 6 July 2015 insofar as they allocate a guardianship role to the first defendant.
Central to the appeal are the following facts:
1. At a time when the second defendant and her husband might reasonably be thought to have been under the influence of the first defendant he (to use a neutral expression) acquired from his parents (he says by way of gift, the plaintiff contends by way of a misappropriation at the expense of his parents) $1 million or thereabouts from the proceeds of sale of land, an investment property, owned by his parents in Sydney.
2. The first defendant transferred that sum of about $1 million to an undisclosed account, or accounts, outside Australia, apparently under his personal control, and, on the hearing of the plaintiff's appeal to the Court, he declined to provide any information to the Court as to the present whereabouts of the money, or to engage in a process for its preservation pending an orderly determination of such proceedings as may be instituted to resolve disputation relating to its beneficial ownership.
3. At the time NCAT committed management of the second defendant's estate to the NSW Trustee (on 10 November 2014), it passed over the first defendant on the basis that he was not "a suitable person" (within the meaning of the Guardianship Act, section 25M(1)(a)) to be appointed as financial manager of her estate.
4. When, on 6 July 2015, NCAT appointed the first defendant as a guardian of the second defendant, for the purpose of her travel to Croatia, it held that, because the NSW Trustee could be relied upon as an impartial manager of the second defendant's estate, there was "no undue conflict" between the interests of the first and second defendants (within the meaning of the Guardianship Act, section 17(1)(b)) such as to preclude the first defendant's appointment as a guardian of his mother.
5. On 3 August 2015, during the pendency of the plaintiff's appeal against the guardianship orders made on 6 July 2015, the first defendant filed with NCAT an application to have the NSW Trustee replaced as the second defendant's financial manager by an accountant nominated by him.
6. The application, if pressed, is likely to be hotly contested by the plaintiff.
7. Apart from any interest he may have in his late father's deceased estate, or any interest he may prospectively have in the second defendant's estate, the first defendant has no readily identifiable assets in Australia.
8. On 26 June 2015 the first defendant published, via the Court's Online Probate Registry, a formal "notice of intended application for probate" foreshadowing an intention to apply for probate of a will dated 3 March 2015 of GR, the second defendant's late husband.
9. On the hearing of the plaintiff's appeal, the first defendant accepted that he should give reasonable notice of his prospective probate application to the NSW Trustee, but steadfastly refused to give any assurance to the Court that he would give any notice of his application to the plaintiff.
10. The will of GR dated 3 March 2015 (a copy of which was supplied to the Court by the NSW Trustee, on notice to all parties, at the Court's request, following the conclusion of the hearing of the appeal) provides, in circumstances in which the second defendant has survived her husband, that the first defendant be the deceased's executor and that the whole of the deceased's estate, "of whatsoever nature and wheresoever situate", pass to the second defendant.
11. The NSW Trustee has in train an investigation of the affairs of the second defendant including, so far as may be material, the affairs of her late husband and property dealings involving the first defendant.
12. The plaintiff's case, both before NCAT and on appeal, is that the Public Guardian should be appointed guardian of the second defendant (to the exclusion of the first defendant) with limited functions relating to her personal and domestic care in Australia and as to whether, and under what circumstances, she is to travel to Croatia.
Whether the plaintiff, the first defendant or any other person might apply for family provision relief, under chapter 3 (sections 55-100) of the Succession Act 2006 NSW, in relation to the estate, or notional estate, of GR has not been explored in the current proceedings.
The materials before the Court do not include evidence as to whether the second defendant has executed, or purportedly executed, a will or wills.
In the NCAT proceedings leading to the guardianship orders of 6 July 2015, and on the hearing of the plaintiff's appeal, the second defendant was represented by an independent solicitor and counsel (appearing before the Court as amicus curiae) retained by the NSW Trustee, and (in the Court) funded by her estate, as her quasi "separate representatives".
On the hearing of the appeal both the plaintiff and the first defendant, at the invitation of the Court, offered to the Court an undertaking predicated upon an assumption that the Public Guardian is to be appointed sole guardian of the second defendant (for all purposes) and that the NSW Trustee is to continue to manage the estate of the second defendant, in each case pending further orders of the Court.
Specifically, each of the plaintiff and the first defendant undertook to the Court that, subject to orders of the Court:
1. he will comply with any direction given by the NSW Trustee or the Public Guardian in relation to management of the property or person of the second defendant.
2. he will not by himself, his servants or agents (without reasonable excuse) interfere with any arrangement made, or approved, by the NSW Trustee or the Public Guardian for the care and treatment of the second defendant, whether the second defendant is within or outside Australia.
3. he will by himself, his servants and agents use his best endeavours to ensure that, should the second defendant travel outside Australia, she will return to Australia as and when required by the Public Guardian.
At the time of giving these undertakings the plaintiff (by his counsel) and the first defendant (personally) each acknowledged that any breach of the undertakings would constitute, and be punishable, as a contempt of court.
The controversy that engaged the attention of NCAT in the making of the guardianship orders under appeal, and (in the light of fresh developments) the attention of the Court on the hearing of these proceedings, is distinctive in that it squarely raises questions about:
1. the nature of a guardian's obligation to avoid conflicts between his or her interests and the interests of the person under guardianship; and
2. what can, and should, be done to protect a person under guardianship who, on reasonable grounds, wants to travel outside Australia to a jurisdiction with which no reciprocal arrangements are in force for management of his or her person or property.
Bearing upon the formulation of orders affecting the second defendant are the availability of: (a) the Public Guardian to act as the second defendant's guardian, to the exclusion of any family member but in consultation with all members of family; (b) the NSW Trustee to act as an impartial manager of her estate; and (c) undertakings to the Court able to serve as security against the possibility of interference by the plaintiff, the first defendant or their servants or agents with arrangements made for protection of the person and property of the second defendant.
The Tribunal wrestled with the problem of "conflicts of interest" in its consideration of section 17(1)(b) of the Guardianship Act.
Section 17(1), which does not apply to an appointment of the Public Guardian as the guardian of a person under guardianship, is in the following terms (with emphasis added):
"17 Guardians
(1) A person shall not be appointed as the guardian of a person under guardianship unless the Tribunal is satisfied that:
(a) the personality of the proposed guardian is generally compatible with that of the person under guardianship,
(b) there is no undue conflict between the interests (particularly, the financial interests) of the proposed guardian and those of the person under guardianship, and
(c) the proposed guardian is both willing and able to exercise the functions conferred or imposed by the proposed guardianship order."
The Tribunal is not precluded from appointing a particular person as guardian if it considers that, although a conflict exists, the conflict is not "undue": SAB v SEM [2013] NSWSC 253 at [61]-[62].
Section 17(1)(b) provides formal recognition of the fundamental principle, applicable under both the Guardianship Act and the general law, that the office of a guardian is that of a fiduciary whose obligations must be measured against the protective purpose of the appointment of a guardian in the particular case: The Countess of Bective v Federal Commissioner of Taxation (1932) 47 CLR 417 at 420-423; Clay v Clay (2001) 202 CLR 410 at 428[37] - 433[49].
The expression "no undue conflict" reflects the reality that, in a particular case, discharge of the obligations of a guardian (e.g. by a member of family living within the same household as the person under guardianship) might necessitate a sharing of resources devoted to the welfare of a person under guardianship, not a complete separation of the lives of guardian and ward.
Young J recognised this in Re L [2000] NSWSC 721 at [10]-[12] when, in speaking of what is required by the Court of a person proposed for appointment as a private manager of a protected estate, his honour said the following (in edited form, with emphasis added), so far as is presently relevant:
"[10]...[In] each individual case the Court looks to see what is for the benefit of the incapable person….
[11]…[Both] in the interests of the incapable person and in the interests of minimising later supervision, the Court needs to be satisfied that [proposed] managers are able to provide for the incapable person the service [he or] she needs.
[12] in the case of a relative, Court must look to see that there are minimal conflicts of interest, or, if conflicts of interest cannot be avoided, that they are properly dealt with. In the case of a private manager who purports to have financial expertise, the Court needs to be satisfied not only of that person's good fame and character and of his or her ability generally to manage funds, but also that that person has a good conception as to what is required of a fund manager."
A "conflict of interest" is "undue" within the meaning of section 17(1)(b) if it is reasonably likely, to an unacceptable degree, to impede the proposed guardian's performance of the duties of a guardian in the particular case.
As reflected in W v G (2003) 59 NSWLR 220 at [25], those duties, in each case, include a duty (elaborated in section 4 of the Guardianship Act) to observe the following general principles when exercising the functions of a guardian under the Act:
1. the welfare and interests of the person under guardianship should be given paramount consideration.
2. the freedom of decision and freedom of action of the person under guardianship should be restricted as little as possible.
3. the person under guardianship should be encouraged, as far as possible, to live a normal life in the community.
4. the views of the person under guardianship in relation to the exercise of the functions of a guardian should be taken into consideration.
5. the importance of preserving the family relationships and the cultural and linguistic environments of the person under guardianship should be recognised.
6. the person under guardianship should be encouraged, as far as possible, to be self-reliant in matters relating to his or her personal, domestic and financial affairs.
7. the person under guardianship should be protected from neglect, abuse and exploitation.
8. the community should be encouraged to apply and promote these principles.
The central question in dispute in proceedings on the plaintiff's appeal is whether, having regard to developments since the orders under appeal were made by NCAT, and in the context of: (a) ongoing disputation between the plaintiff and the first defendant about the person and property of the second defendant; and (b) a well founded perception that the interests of the first defendant and the second defendant are, or may be, in conflict, a proper exercise of the Court's protective jurisdiction (including, but not limited to, the powers conferred on the Court by clause 14 of Schedule 6 to the Civil and Administrative Tribunal Act 2013) requires that guardianship of the second defendant be allocated to the Public Guardian to the exclusion of the first defendant and, if so, upon what terms.
That question has been litigated on the basis of:
1. an order (pursuant to clause 14(1)(b) of schedule 6 to the Civil and Administrative Tribunal Act) that the plaintiff be granted leave to appeal from NCAT's orders of 6 July 2015 on the ground that there is (within the meaning of section 17(1)(b) of the Guardianship Act or otherwise) an undue conflict between the financial interests of the first defendant and those of the second defendant; and
2. an acceptance by the parties that it is open to the Court, in these proceedings, to supplement, or displace, the orders of NCAT under appeal by orders (or an acceptance of undertakings) in exercise of the inherent protective (parens patriae) jurisdiction of the Court, being the jurisdiction formerly exercised by the Lord Chancellor in England, preserved by section 22 of the Supreme Court Act 1970 NSW, and including the jurisdiction conferred by section 23 of that Act to do what may be necessary for the administration of justice in New South Wales.
Having identified the central question in dispute, and the documents of record and evidence upon which the parties' dispute might fairly be litigated, orders were made under clause 14(3) of schedule 6 of the Civil and Administrative Tribunal Act for the appeal to be decided (on identified material) by a new hearing.
In order to clarify, and to confirm, the basis upon which the second defendant was to be represented on the hearing of the appeal, orders were also made to the following effect:
1. order, subject to further order, that any requirement for the second defendant to be represented in these proceedings by a tutor be dispensed with.
2. order that Walter John Mungo MacCallum of Aitken lawyers Pty Ltd, solicitor, and Jane Merkel of counsel be heard as amici curiae in the interests of the second defendant.
3. order, subject to further order, that the NSW Trustee be authorised to allow out of the protected estate of the second defendant such remuneration for the separate legal representatives of the second defendant, identified in the preceding order, as may be just and reasonable.
Prior to the hearing of the proceedings, and with a view to ensuring that he was appraised of the nature of questions arising for consideration in the proceedings, directions were given for the second defendant's solicitor to provide (and, as the first defendant subsequently acknowledged, he did provide) to the first defendant a transcript of a directions hearing in which I outlined concerns about the welfare of the second defendant, on the materials then available to me, and invited a response.
One topic of concern that was, by that means, communicated to the first defendant was the necessity for there to be of an accounting for the $1 million or thereabouts acquired by the first defendant from his parents and transferred by him overseas.
Thus far at least, the first defendant appears to have declined to facilitate such an accounting. Whether he has been, or will be, more forthcoming in the course of the NSW Trustee's investigation than he was with the Court during the hearing of the current proceedings, I do not know.
Having regard to developments after NCAT made the guardianship orders under appeal, and the nature of the central question in dispute on the hearing of the appeal, it is not necessary for the Court to consider whether, on the materials then before the Tribunal, NCAT erred in law in making a guardianship order, in favour of the first defendant, presently under appeal.
Upon an exercise of protective jurisdiction, whether directed towards protection of the estate of a person incapable of managing his or her affairs or protection of the person of a person in need of a guardian, there is of necessity an element of risk management.
An exercise of protective jurisdiction, whether by NCAT or the Court, is governed by the purposive character of the jurisdiction.
That purpose is the protection of those who (whether through age or disability) lack the capacity to take care of themselves: Secretary, Department of Health and Community Services v JWB and SMB (Marion's Case) (1992) 175 CLR 218 at 258-259, citing Wellesley v Duke of Beaufort (1827) 2 Russ 1 at 20; 38 ER 236 at 243; Wellesley v Wellesley (1828) 2 Bli NS 124 at 131; 4 ER 1078 at 1081 and Re Eve [1986) 2 SCR 388 at 407-417; (1986) 31 DLR (4th) 1 at 14-21. The general law, in this respect, provides a template for the legislation governing the management of protected estates and the guardianship of persons.
Thus the Guardianship Act provides, in section 4, a statement of "general principles" that govern decisions made under the Act. The primary principle, of which each other stated principle is an elaboration, is that "the welfare and interests" of a person in respect of whom jurisdiction is to be exercised "should be given paramount consideration". Clause 5 of schedule 6 to the Civil and Administrative Tribunal Act 2013 provides that NCAT, when exercising its functions for the purposes of the Guardianship Act, is under a duty to observe the principles referred to in section 4 of that Act. The NSW Trustee and Guardian Act has a similar statement of "general principles" in section 39.
The statement of "general principles" found in each of the Guardianship Act and the NSW Trustee and Guardian Act is based upon the "welfare principle" long held to have governed an exercise of the Court's inherent protective jurisdiction: Holt v Protective Commissioner (1993) 31 NSWLR 227 at 238B-C and 241A-B and F-G.
On the hearing of an appeal under section 6 clause 14 of the Civil and Administrative Tribunal Act the Court may need, as it does need in the present proceedings, to consider whether the statutory process of appeal can, and should, be supplemented or superseded by an exercise of the Court's inherent protective jurisdiction or similar jurisdiction defined by reference to the Supreme Court Act, section 23: P v NSW Trustee and Guardian [2015] NSWSC 579 at [168]-[172] and [216]-[220].
[3]
UNDUE CONFLICT OF INTEREST
The first defendant's financial interests conflict with the interests of the second defendant, at least to the extent that he presently resists submitting to any procedure requiring him to account for the $1 million or thereabouts he acquired from his parents at a time when they were (or, at least, there are reasonable grounds for suspecting that they were) under his influence.
That conflict of interest cannot be discounted as not "undue" within the meaning of section 17(1) of the Guardianship Act, or under the general law, on any assessment as to whether the first defendant is suitable for appointment to the office of guardian of the second defendant. That is because:
1. the quantum of the property of the parents that appears to have been appropriated by the first defendant (approximately $1 million) is too large to be reasonably accounted for on the ground of family relationships or other ordinary motives on which ordinary persons act. Cf, Nock v Austen (1918) 25 CLR 519 at 529-530; Quek v Beggs (1990) 5 BPR [97405] at 11,764.
2. his conduct in transferring that property outside Australia, to an undisclosed account or accounts evidently under his control, raises suspicions that require (for the protection of the second defendant) impartial investigation.
3. those suspicions are compounded by his express refusal to disclose to the Court the current whereabouts of the property or to acquiesce in an interlocutory arrangement for its preservation.
4. they are compounded further by his demonstrated inability, as a participant in the hearing of the appeal, to engage in rational discussion about management of the second defendant's affairs without what appear (absent a report of an independent investigation of his conduct) to be obsessive challenges to the character of the plaintiff designed, in part if not in whole, to deflect attention from questions which not unreasonably arise about his own conduct.
5. his fixation with his own interests, and his apparent desire to dominate control of the second defendant's person and property, without scrutiny save on his own terms, compel a conclusion that the conflict between his interests and those of the second defendant are reasonably likely to impede his performance of the duties of a guardian of the second defendant.
6. that possibility, nay probability, is unacceptable, both in itself and in the context of a proposed conferral upon the first defendant of guardianship duties beyond Australian territorial limits.
7. in short, the first defendant cannot be relied upon, as he must be able to be relied upon, to discharge the obligations of a fiduciary vis-a-vis the second defendant, even allowing for the flexibility attaching to such obligations in a family context.
In the absence of any other persons suitable for appointment as the second defendant's guardian, the proper course is to confirm the appointment of the Public Guardian as her only guardian. Cf, Guardianship Act, section 15(3); W v G (2003) 59 NSWLR 220 at [26] and [28] .
Judged, as it must be, by reference to: (a) the protective purpose of the jurisdiction to be exercise; and (b) what is in the interests, and for the benefit, of the second defendant (Holt v Protective Commissioner (1993) 31 NSWLR 227 at 238D-F and 241-242A; GAU v GAV [2014] QCA 308 at [48]), this is the proper course. No practical alternative, not productive of strife, has been identified. The Public Guardian is able to act, as the first defendant is not, impartially, above suspicion of personal interest tainting sound judgement, and without rancour. The Public Guardian is best able, in the current circumstances of this case, to discharge the functions of a guardian of the second defendant with due regard to the general principles enunciated in section 4 of the Guardianship Act. The first defendant lacks the insight necessary to do so.
[4]
GUARDIANSHIP OUTSIDE AUSTRALIA
In speaking of a "committee of the person" (the historical title of the office of a guardian appointed by the Lord Chancellor in the exercise of his inherent, protective jurisdiction) in The Law Relating to Lunacy (London, 1924) HS Theobald offers (at pages 49-50, here presented in an edited form) guidance about the nature of the office of a guardian, under the general law, and about supervision of travel outside the jurisdiction by a person under guardianship:
"The committee of the person has complete control over the person of the lunatic [an outmoded expression, to be understood today, in New South Wales, as a reference to a person incapable of self-management] and it is his [or her; that is, the committee's] duty to make all necessary arrangements for [the] care and treatment [of the incapable person]. …
Interference with the committee of the person in the performance of his duties is a contempt of Court which will be punished by commitment.
According to English practice, the choice of [the incapable person's] residence is within the discretion of the committee of the person, but this discretion is subject to any directions which it may be proper [for the Court] to give on the advice of the Chancery Visitors [an expression, in the present NSW context, best understood as referring to an equivalent of the NSW Trustee or the Public Guardian] or otherwise. …
The committee of the person ought not to take [the incapable person] out of the jurisdiction without special leave [of the Court], but leave will be given on sufficient grounds for [the incapable person] to reside temporarily or even permanently out of the jurisdiction. Formerly the committee was required to give security for bringing [the incapable person] within the jurisdiction if ordered to do so, but at the present day an undertaking is usually considered sufficient. Jones. 1 Ph 461; Stair, 1 Coop. t. Cott. 227.
The custody of [the incapable person] by the committee of the person is subject to the directions of [the Court], and in a proper case and for sufficient reasons access may be allowed to [the incapable person].
In a proper case the committee of the person may be ordered to deliver a foreign [incapable person] to the authorities of the country to which he [or she] belongs in order that he [or she] may be taken to that country. Hudspeth, Scrutton LJ, Nov 30, 1920."
As noted in W v H [2014] NSWSC 1696 at [29]-[37], Theobald has long been regarded as an authoritative source of guidance for judges exercising protective jurisdiction in NSW, allowing always for differences between England and NSW, old times and new.
The reference in the extract from Theobald, here, to "access" can be explained by reference to the judgment of Powell J in RH v CAH [1984] 1 NSWLR694 at 707B:
"While, once a person is committed to the care of a committee, the latter, in the absence of special order, has a general discretion as to the former's care and treatment, the court retains its supervisory role, and may, in an appropriate case, where it is in [the incapable person's] interests that it do so, make a variety of orders, including an order for access: see, for example, R v Clarke (1762) 3 Burr 1362; 97 ER 875; Ex parte Lyttleton (1801) 6 Ves Jun 7; 31 ER 911; see also Re B (An Alleged Lunatic) [1891] 3 Ch 274 at 277."
In the same judgment, Powell J (at [1984] 1 NSWLR 706G) wrote as follows (in a form here edited):
"It does not follow… from the mere fact that the court has jurisdiction [to appoint a committee of the person or a committee of the estate [the traditional equivalent of a protected estate manager, including, as is the NSW Trustee in the current case, a financial manager], that the court will do so; on the contrary, the court will not normally exercise its jurisdiction in such matters unless it is at least desirable, if not necessary, in the interests of [an incapable person] that it do so: see, for example, M v M [1981] 2 NSWLR 334 at 337; DW v JMW [1983] 1 NSWLR 61."
M v M [1981] 2 NSWLR 334 at 336A [1981] 2 NSWLR 334 at 336A-338D, a judgment of Helsham CJ in Eq, is instructive in that it focuses attention on the need to ensure that whatever is done, or not done, by the Court on an exercise of protective jurisdiction must be tested against whether it is in the interests, and for the benefit, of the incapable person, taking the perspective of that person in the particular case. The Chief Judge, on an exercise of discretion, declined to appoint a committee of the person where the particular incapable person was, in any event, receiving the care and attention which a committee would have been under a duty to provide.
The judgment finds a parallel in the general principles enunciated in the Guardianship Act, section 4: particularly the welfare principle (section 4 (a)) and those requiring an incapable person's freedom of decision and freedom of action to be restricted as little as possible (section 4(b)), and that an incapable person be encouraged, as far as possible, to live a normal life in the community (section 4(c)).
Taking guidance from Theobald, in the context of NSW law and practice, the Court should facilitate the making of arrangements for the second defendant to be able, with appropriate safeguards, to travel to Croatia for both the funeral of her late husband and a vacation reminiscent of those the two of them were accustomed to enjoy.
That much is clear. The difficulty with the case, given the civil war raging in the second defendant's family, is to identify "appropriate" safeguards: strong enough to protect the second defendant in her person and property, no more obtrusive than necessary.
Of necessity, this involves an exercise in risk management, relying upon the impartiality and expertise of the Public Guardian and the NSW Trustee (respectively, protectors of the second defendant's person and estate), as well as whatever residue of goodwill and restraint her sons can muster, rising above their mutual antagonism.
[5]
THE NATURE AND SCOPE OF GUARDIANSHIP ORDERS AFFECTING THE SECOND DEFENDANT
At my invitation, at the conclusion of the hearing of the appeal, the Public Guardian, on notice to all parties, made a recommendation to the Court about what would be an appropriate form of guardianship order, in lieu of the orders made by NCAT on 6 July 2015, upon an assumption that the Public Guardian would be appointed to serve as the second defendant's only guardian.
That recommendation took the form of an email addressed to all participants in the hearing of the appeal. In substance, it read as follows:
"The Public Guardian having carefully considered the issue, is of the view that in Australia there is no need for an order that has the effect of appointing the Public Guardian for all purposes; that an all purpose/plenary type order will be against the principles of the Guardianship Act 1987 NSW, which encourages the 'least restrictive' approach. The Public Guardian is of the view that the orders of 6 July 2015 made by NCAT [are] sufficient for what is required in the interests of [the second defendant] in Australia.
In terms of the travel to Croatia, the Public Guardian proposes [a limited guardianship order] which is similar but with some slight variations to the orders regarding travel and passport made by NCAT [in favour of the first defendant] on 6 July 2015.
Services within Australia
To make decisions in [the second defendant's] best interests as to her access to services while she is in Australia, including decisions concerning her personal and domestic care, and the arrangements for an assessment by an occupational therapist.
Travel and passport
To make decisions in [the second defendant's] best interests as to whether, and under what circumstances, she is to travel to Croatia, including decisions as to:
• travel arrangements, including authority to arrange for passports, visas and other travel documents
• escort arrangements to and from Australia
• liaison with consular officials
• her place of accommodation while in Croatia
• access to services, such as personal and domestic care, while in Croatia
• access to health care while in Croatia."
I propose to adopt this recommendation, subject to three qualifications.
First, in aid of the limited guardianship order proposed by the Public Guardian to be made under the Guardianship Act and clause 14 of Schedule 6 to the Civil and Administrative Tribunal Act, I propose to make ancillary orders to the following effect upon an exercise of the Court's inherent, protective jurisdiction:
1. ORDER, subject to further order, that the Public Guardian be appointed as committee of the person of the second defendant for so long as the Public Guardian remains in office as guardian of the second defendant under the Guardianship Act.
2. Upon each of the plaintiff and the second defendant giving to the Court an undertaking that, subject to orders of the Court (i) he will comply with any direction given by the NSW Trustee or the Public Guardian in relation to management of the property or person of the second defendant; (ii) he will not by himself, his servants or agents (without reasonable excuse) interfere with any arrangement made, or approved, by the NSW Trustee or the Public Guardian for the care and treatment of the second defendant, whether the second defendant is within or outside Australia; and (iii) he will by himself, his servants and agents use his best endeavours to ensure that, should the second defendant travel outside Australia, she will return to Australia as and when required by the Public Guardian, ORDER, subject to further order, that the Public Guardian be authorised and directed to allow each of the plaintiff and the first defendant reasonable access to the person of the second defendant on such terms as the Public Guardian may from time to time determine.
3. ORDER, subject to further order, that the Public Guardian be authorised and directed, otherwise, to conform to the limitations imposed on the appointment of the Public Guardian as guardian of the second defendant under the Guardianship Act.
4. RESERVE to all parties (including the NSW Trustee) liberty to apply generally.
The purpose of these orders is, explicitly, to lend the Court's authority to decisions made by the Public Guardian and the NSW Trustee in performance of their respective duties as guardian and financial manager of the second defendant and, thereby, to provide a form of "security" analogous to that described by Theobald as an element of approval by the Court of overseas travel by an incapable person. Interference with the Public Guardian or the NSW Trustee in the performance of their duties may constitute a contempt of Court.
I do not suggest that, in every case, orders of this character are necessary if an incapable person is to travel beyond Australian territorial limits. The necessity for such orders, in the current case, arises from the particular circumstances of the second defendant, including the strained relations within her family, the litigious history of the family affecting the second defendant and the absence of any reciprocal arrangements between regulatory authorities in NSW and Croatia.
In the management of risk, in the particular case, importance attaches to ensuring that the plaintiff and the first defendant, in particular, are aware that, should they interfere with arrangements made by the Public Guardian and the NSW Trustee, they will do so at the price of exposure to the Court's contempt jurisdiction.
Secondly, I propose to reserve for consideration whether, in the interests of the second defendant, orders can and should be made:
1. to appoint the NSW Trustee as committee of the estate of the second defendant (on terms similar to those recorded in JMK v RDC and PTO v WDO [2013] NSWSC 1362 at [53]-[56] and [68] (5) as customary upon the appointment of the NSW Trustee as a receiver and manager of an incapable person's estate, on an interlocutory basis, upon an exercise of inherent protective jurisdiction).
2. in probate proceedings numbered 2015/00188706 (commenced or foreshadowed by the first defendant, through Aitken Lawyers Pty Ltd as his solicitors) for a grant of special letters of administration, in favour of the NSW Trustee (representing the interests of the second defendant, ostensibly the sole beneficiary of her late husband's estate) for the limited purpose of collecting and preserving the estate pending further orders of the Court.
Thirdly, with a view to avoiding a multiplicity of proceedings affecting the person and estate of the second defendant, I propose to make orders designed to ensure that any such proceedings proceed in an orderly way.
For that purpose, I propose: (a) to restrain the plaintiff and the first defendant from making or prosecuting any application for removal of the NSW Trustee as financial manager of the second defendant otherwise than to the Court; (b) to order, pending further order, that any proceedings relating to guardianship of the person of the second defendant be conducted in the Court rather than in NCAT; and (c) to make orders for case management, by the Court, of proceedings relating to the person or property of the second defendant.
[6]
ORDERS
I propose to allow a short opportunity for these Reasons for Judgment to be considered before orders are made giving effect to them.
As foreshadowed by the Public Guardian and the NSW Trustee, and as anticipated by me during the hearing, allowance should be made for those officers, as representatives of the second defendant, to seek the advice or direction of the Court, or to provide a report to the Court on notice to interested parties, for approval of a plan for the second defendant's travel to, and return from, Croatia.
Subject to such, if any, submissions as may be made, I am presently inclined to the view that orders should be made for the costs of these proceedings to be paid out of the estate of the second defendant: CCR v PS (No 2) (1986) 6 NSWLR 622 at 640; CAC v Secretary, Department of Family & Community Services (No 2) [2015] NSWSC 344 at [11]-[16].
[7]
Orders as made
On 24 August 2015, with the benefit of submissions from the parties and reserving an entitlement to publish reasons by way of an addendum to the Reasons for judgment published on 21 August 2015, I made orders to the following effect (so as to give effect to the Reasons for judgment published on 21 August 2015 and to deal with ancillary questions identified in the judgment):
Reasons for Judgment, paragraphs [65]-[70], [72], 73], [75] and [76] in Protective List proceedings numbered 2015/00209987
(1) ORDER that the NSW Trustee be joined in these proceedings as a party defendant and be designated as the fourth defendant in the proceedings.
(2) ORDER that the orders (including orders numbered 1-7 inclusive) made by the Guardianship Division of the NSW Civil and Administrative Tribunal on 6 July 2015 (in File C/56720 and Matter No 2015/4925) be set aside.
(3) ORDER, subject to these orders and further order, that:
(a) the guardianship orders for the second defendant made by the Tribunal on 2 June 2015 under the Guardianship Act 1987 NSW be renewed and varied as recorded in this order and order 4 of these orders.
(b) the guardianship orders, as renewed and varied, be a continuing order with effect for a period of five years from 6 July 2015.
(c) the guardianship orders, as renewed and varied, be in the character of a limited guardianship order that gives to the Public Guardian (as the second defendant's guardian) custody of the second defendant to the extent necessary to carry out the functions specified in order 4 of these orders.
(4) ORDER that the Public Guardian, as guardian of the second defendant, have the following functions in respect of the second defendant:
(a) Services within Australia: To make decisions in respect of the second defendant's best interests as to her access to services while she is in Australia, including decisions concerning her personal and domestic care, and the arrangements for an assessment by an occupational therapist.
(b) Travel and Passport: To make decisions in the second defendant's best interests as to whether, and under what circumstances, she is to travel to Croatia including decisions as to:
(i) travel arrangements, including authority to arrange for passports, visas and other travel documents.
(ii) escort arrangements to and from Australia.
(iii) liaison with consular officials.
(iv) her place of accommodation while in Croatia.
(v) access to services, such as personal and domestic care, while in Croatia.
(vi) access to health care while in Croatia.
(5) ORDER, subject to further order, that the Public Guardian be appointed as committee of the person of the second defendant for so long as the Public Guardian remains in office as guardian of the second defendant under the Guardianship Act 1987 NSW.
(6) Upon each of the plaintiff and the first defendant undertaking to the Court that, subject to orders of the Court: (a) he will comply with any direction given by the NSW Trustee or the Public Guardian in relation to management of the property or person of the second defendant; (b) he will not by himself, his servants or agents (without reasonable excuse) interfere with any arrangement made, or approved, by the NSW Trustee or the Public Guardian for the care and treatment of the second defendant, whether the second defendant is within or outside Australia; and (c) he will by himself, his servants and agents use his best endeavours to ensure that, should the second defendant travel outside Australia, she will return to Australia as and when required by the Public Guardian, ORDER, subject to further order, that the Public Guardian be authorised and directed to allow each of the plaintiff and the first defendant reasonable access to the person of the second defendant on such terms as the Public Guardian may from time to time determine.
(7) ORDER, subject to further order, that the Public Guardian be authorised and directed, otherwise, to conform to the limitations from time to time imposed on the appointment of the Public Guardian as guardian of the second defendant under the Guardianship Act 1987 NSW.
(8) ORDER, subject to further order, that the Public Guardian and the NSW Trustee, jointly or severally, as soon as may be practicable:
(a) on notice to each other party to these proceedings, provide a report to the Court; and
(b) make such, if any, application to the Court for advice or direction as they may respectively be advised,
relating to the second defendant's proposed travel to, and from, Croatia.
(9) ORDER that the Public Guardian and the NSW Trustee, no later than 15 February 2016 or such other time as may be appointed by the Court, jointly or severally (as they may be advised) provide to the Court a report incorporating a recommendation or recommendations as to whether, when and in what circumstances these orders should be reviewed by the Court or the Tribunal, as may be appropriate.
(10) ORDER, subject to further order, that the plaintiff and the first defendant by themselves, their servants and agents be restrained from making or prosecuting any application for removal of the NSW Trustee as financial manager of the second defendant (or any application for review of a decision made by the NSW Trustee in relation to the second defendant) otherwise than to the Court.
(11) ORDER, subject to further order, that any proceedings relating to the estate of the second defendant (including any application for directions or for review of a decision made by the NSW Trustee) be instituted, and conducted, in the Court rather than the Tribunal
(12) ORDER, subject to further order, that any proceedings relating to guardianship of the person of the second defendant (including any application for directions or for review of a decision made by the Public Guardian) be instituted, and conducted, in the Court rather than the Tribunal.
(13) ORDER, subject to further order, that there be reserved to the Court in the first instance consideration of whether (in the interests, and for the benefit, of the second defendant) any or all questions in proceedings relating to the person or estate of the second defendant (including any application for a review of a decision made by the NSW Trustee or the Public Guardian and any application for directions) should be determined by the Court or left to the Tribunal to determine.
(14) ORDER, subject to further order, that any proceedings in the Court relating to the person or estate of the second defendant be referred to the Protective List Judge for hearing or directions as the nature of the case may require.
(15) ORDER that order 6 of the orders made on 3 August 2015 (namely, an order that the Public Guardian make no arrangements for the second defendant to travel outside NSW without the prior leave of the Court) be set aside.
(16) ORDER that the Tribunal be at liberty, as it may deem appropriate:
(a) without prejudice to such, if any, entitlements the first defendant might otherwise have to apply for any orders affecting the person or estate of the second defendant to be discharged or varied, to dismiss the application made by the first defendant to the Tribunal on or about 3 August 2015 for the NSW Trustee to be removed, and replaced, as financial manager of the second defendant; or
(b) to refer that application to the Court pursuant to section 25 L of the Guardianship Act 1987 NSW.
(17) RESERVE to all parties liberty to apply generally.
(18) ORDER that the costs of the plaintiff, the second defendant, the third defendant and the fourth defendant of these proceedings (in the Court, not the Tribunal) up to and including today be paid out of the estate of the second defendant:
(a) as regards the plaintiff, on the ordinary basis; and
(b) as regards the second, third and fourth defendants, on the indemnity basis.
(19) NOTE that no orders are made as to the costs of the first defendant, who was self represented in the proceedings.
Reasons for judgment, paragraph [71] : orders proposed for further consideration
(20) ORDER, subject to further order, that the NSW Trustee be appointed as committee of the estate of the second defendant for so long as the NSW Trustee remains in office as financial manager of the second defendant under the Guardianship Act 1987 NSW.
(21) ORDER, until further order, that, as committee of the estate of the second defendant pursuant to order 20, the NSW Trustee have all the powers and discretions that it would have if management of the second defendant's estate were committed to it pursuant to section 41(1)(b) of the NSW Trustee and Guardian Act 2009 NSW.
Ancillary Order
(22) ORDER that the plaintiff, no later than 28 August 2015, notify each other party to these proceedings and the Court, in writing, of an address for service in NSW at which he can be served with process in the Probate proceedings numbered 2015/00188706.
Re Estate of GR Deceased
NSW Supreme Court (Equity Division/Probate List) Case No. 2015/00188706
(1) ORDER that, subject to any further order of the Court constituted by a judge of the Court, Special Letters of Administration be granted to the NSW Trustee in respect of the estate of GR (also known as IR), late of Maroubra, who died on 15 May 2015, limited to collecting, receiving, preserving and managing the estate of the deceased, of whatsoever nature and wheresoever situate, pending orders made by the Court.
(2) ORDER, subject to further order, that any application for a grant of probate or administration in respect of the estate of the deceased be made, in these proceedings, by the filing of a summons.
(3) ORDER, subject to further order, that any summons filed pursuant to order 2 of these orders:
(a) be filed on or before 28 September 2015;
(b) join as parties all parties, and be served upon all parties, named as parties in the proceedings numbered 2015/00209987 in the Protective List of the Equity Division of the Court;
(c) be made returnable, or be listed by the Court, before the Probate List Judge on 12 October 2015; and
(d) be served on each party named as a party to the summons no later than 2 October 2015.
(4) ORDER, subject to further order, that any summons served on AR (named as the first defendant in those Protective List proceedings) may, in the first instance, be served on him:
(a) by delivery in an envelope addressed to him at [ a Maroubra address]; and
(b) by an email addressed to AR.
(5) RESERVE all questions of costs.
(6) RESERVE to each party named in the Protective List proceedings liberty to apply to the Probate List Judge in these proceedings.
No party other than the first defendant objected to these orders. The NSW Trustee expressly consented to its appointment as administrator of GR deceased's estate.
The NSW Trustee was joined as the fourth defendant in the Protective List proceedings in order to facilitate the further conduct of the proceedings, and any appeal that may be instituted against orders made in them.
[8]
Contentions of the First Defendant
The first defendant's objections to the orders were limited to three.
Costs. First, he invited the Court to make no orders for the payment of costs out of the estate of the second defendant. He submitted that, as everybody had been motivated by a desire to assist the second defendant, nobody should impose the burden of their costs on her estate.
I declined to act on the first defendant's invitation because, in my assessment, the proper order was one that recognised: (a) the necessity for intervention of the Court in protection of the person, if not also the estate, of the second defendant; (b) the constructive role played by each of those in favour of whom an order for costs was proposed; and (c) the fact that the first defendant, for whatever reason, deliberately chose not to be legally represented in the proceedings even though invited more than once to appear by a solicitor or counsel.
Administration of Deceased Estate on Interlocutory Basis. Secondly, the first defendant objected to any order for a grant of administration of the estate of his late father being made without an adjournment of the proceedings to enable him to obtain legal advice.
I declined to grant any such adjournment because:
1. there was a demonstrated need (illustrated by the first defendant's own recurrent applications for money to be allocated for the payment of GR's funeral expenses) for protection, and an orderly administration, of GR's estate on an interlocutory basis;
2. that need was directly related to the welfare of the second defendant because, subject to an important qualification, the second defendant appeared, on the materials then before the Court, to be GR's sole beneficiary;
3. that qualification was that there needed to be an orderly process for competing claims to GR's estate, and administration of the estate, to be brought before the Court; and
4. the grant of administration proposed in favour of the NSW Trustee (not as the second defendant's financial manager, but in an independent capacity, consistent with the NSW Trustee's mandate under section 21 of the NSW Trustee and Guardian Act 2009 NSW) was not inconsistent with allowing the first defendant a reasonable opportunity to make an application to the Court for a grant of probate (as he had earlier foreshadowed) or an application for declaratory and consequential relief to vindicate a claim to an entitlement (asserted explicitly on 24 August 2015) to beneficial ownership of the whole of GR's estate.
As articulated on 24 August 2015, the first defendant relies upon an agreement (embodied in a document entitled "Life Long Care Contract" and dated 1 September 2010, a copy of which was admitted into evidence as exhibit C4), allegedly made between himself and his parents in Croatia, to ground a contention that, under Croatian law, he is entitled to sole beneficial ownership of all his parents' property after their deaths.
In concept, his contention appears to be similar to a claim, based upon an alleged "contract to make a will" governed by principles discussed in Australian law by reference to cases such as Horton v Jones (1935) 53 CLR 475, that (irrespective of the identity of GR's legal personal representative) the whole of GR's estate is held on trust for him.
Such a claim, if pressed, is likely to involve questions of private international law (conflict of laws problems) which need to be fleshed out so that they can be properly dealt with.
GR's estate includes land in Croatia, one parcel of which presently appears to be acknowledged as that of GR, another parcel of which the first defendant asserts forms part of his parents' respective estates despite a claim of exclusive ownership actively asserted by the plaintiff.
Other questions may arise out of the first defendant's disputed appropriation to himself, in Australia, by transmission overseas, of $1 million or thereabouts, presently the subject of an ongoing investigation of the NSW Trustee.
Whether the first defendant's "contract to make a will" case can, and will in due course, be confronted and (as Barnes v Barnes (2003) 214 CLR 169 suggests it may be) outflanked by an application for family provision relief remains to be seen. The time within which a family provision application can be made in respect of GR's estate, without an extension of time, is one year from the date of GR's death: Succession Act 2006 NSW, section 58(2). He died on 15 May 2015.
Funeral Funding. Thirdly, the first defendant objected to alleged delays on the part of the NSW Trustee and the Public Guardian in dealing with a demand by him that (from the estate of one or the other of his parents) funds be allocated to pay for GR's funeral, arrangements for which have yet to be agreed.
This objection - really a complaint - pays no regard to the hurdles required to be negotiated by the NSW Trustee and the Public Guardian in dealing with a lack of harmony within the family.
Now is not a time to attribute blame for such delays as have occurred. However, the first defendant must remain mindful of the possibility that his own refusal, or inability, to reach a consensus is a factor to be weighed in the balance.
All participants in the proceedings, including particularly the NSW Trustee and the Public Guardian, are mindful of a need to facilitate the second defendant's travel to Croatia (a necessary precondition for the conduct of a funeral as contemplated), and arrangements for the funeral.
Under the orders proposed by the Court, now made, the NSW Trustee and the Public Guardian are under an obligation to proceed towards a solution "as soon as may be practicable". In practical terms, nothing more could reasonably be required of them.
[9]
Guardianship Orders under the Guardianship Act
Orders 3 and 4 of the orders made on 24 August 2015 are intended to conform to the requirements of a "continuing" (as distinct from a "temporary") and a "limited" (as distinct from a "plenary") guardianship order as delineated by the Guardianship Act, sections 7, 16, 18, 21, 21A, 21B and 21C.
The duration of those orders is limited, by order 3(b), to a term of five years in deference to section 18(1A)(b).
I am satisfied that the prerequisites identified in section 18(1B) for a five year term have been established. The second defendant has a permanent disability in her mental infirmity, reinforced by advanced age. She is unlikely to become capable of managing her person. There is a need for a guardianship order of a duration longer than the usual maximum of three years, for protection of the second defendant, in establishment of a stable, orderly regime of orders for protection of her person and, incidentally, her estate.
An integral part of that regime is, however, incorporation in the Court's orders of procedural mechanisms for the second defendant's circumstances to be reviewed as events unfold and, hopefully, family tensions settle down. Thus, for example, order 9 provides for the Public Guardian and the NSW Trustee to provide a report to the Court; orders are generally expressed to be "subject to further order"; and the question whether future proceedings can best be left to NCAT to manage, in the ordinary course of its business, remains prominent.
[10]
An exercise of the Court's inherent jurisdiction.
Orders made for the appointment of a committee of the person (order 5); for the appointment of a committee of the estate (order 20); ancillary orders defining the functions and powers of those committees by reference to statutory functions and powers conferred by NCAT's guardianship and financial management orders (especially orders 6-7 and 21); and orders restraining the plaintiff and the first defendant from pursuing proceedings relating to the person and estate of the second defendant otherwise than in the Court (especially orders 10-14), are supported by the Court's inherent, protective jurisdiction.
That jurisdiction is primarily located in the jurisdiction of the Court (preserved by section 22 of the Supreme Court Act 1970 NSW) derived from 19th century English law, practice and procedure via the New South Wales Act of 1823 (4 Geo IV c96 (Imp)); the Third Charter of Justice (letters patent of 13 October 1823 issued pursuant to that Act) which established the Court; and the Australian Courts Act 1828 (9 Geo IV c83 (Imp)), which prescribed the date for reception of English law in NSW. See In re WM (a person alleged to be of unsound mind) (1903) 3 SR (NSW) 552 at 565-567; PB v BB [2013] NSWSC 1223 at [29] and [40].
In more recent times the "inherent" jurisdiction has also, sometimes, been located in the Supreme Court Act 1970, section 23, which provides that the Court has "all jurisdiction which may be necessary for the administration of justice in New South Wales": Re Q (Young J, 29 May 1985, unreported), extracted in Re W and L (Parameters of Protected Estate Management Orders) [2014] NSWSC 1106 at [74]-[77]; Re C [2012] NSWSC 1097 at [64]-[66]; Fountain v Alexander (1982) 150 CLR 615 at 633. Nevertheless, for the most part, the label "inherent" protective jurisdiction is reserved as a description of the jurisdiction derived (via SCA section 22) by reference to the Lord Chancellor of England, acting as a delegate of the Crown, in discharge of the Crown's traditional responsibility as "parent of the nation" (parens patriae): Re W and L (Parameters of Protected Estate Management Orders) [2014] NSWSC 1106 at [73]-[83].
The Court's inherent protective jurisdiction includes both branches of what is sometimes described as the parens patriae jurisdiction of the Court: namely, that relating to the protection of minors and that relating to protection of individuals unable to manage themselves or their affairs: Marion's Case (1992) 175 CLR 218 at 258-259; Re Eve [1986] 2 SCR 388 at 407-408; (1986) 31 DLR (4th) 1 at 14-15.
The parens patriae jurisdiction falls squarely within the jurisdiction of the Court expressly preserved by the Guardianship Act (sections 8(1), 15(1)(b), 22, 23(b), 31 and 31G) under the description of the Court's "jurisdiction with respect to the guardianship of persons".
The word "guardianship" depends for its meaning on context. In modern parlance, the concept is commonly associated with the guardianship of minors and protection of the person as distinct from the protection of property. However, in a broader historical perspective the Court's "guardianship jurisdiction" is synonymous with its parens patriae jurisdiction, including jurisdiction over the appointment and removal of committees of the estate as well as committees of the person: Tomlins' Law Dictionary (London, 1810), "Guardian", paragraph [7]. Roughly speaking, according to the practice of the English Lord Chancellor at the time NSW inherited English law and procedure in the 1820s, a committee of the person was perceived to be the equivalent of a "tutor", and a committee of the estate was acquainted with that of "curator", under Roman law: Blackstone, Commentaries on the Laws of England (1st ed, 1765-1769; 9th ed, 1783), volume 1, pages 305 and 460.
Express references in the Guardianship Act to the Court's guardianship jurisdiction are found in those parts of the Act dealing with "the person" as distinct from property: Part 3 (sections 7-25C); Part 4A (sections 31A-31G). They are not found in that part of the Act (Part 3A, sections 25D-25U) dealing with the protection of property by the appointment of a financial manager, or in comparable provisions of the NSW Trustee and Guardian Act 2009 NSW.
That does not mean that the Court's inherent jurisdiction relating to management of the estate (property) of a person incapable of managing his or her own affairs has been abrogated or abridged. Such is not the case. The Court's inherent, protective jurisdiction is not displaced by legislation absent a clear legislative intention to displace it: Johnson v Director-General of Social Welfare (Victoria) (1976) 135 CLR 92 at 97 and 100. No such intention can be found here. An absence of express preservation provisions in the legislation is, rather, a reflection of the availability to the Court, and the community served by the Court, of an administrative structure, for which the NSW Trustee and Guardian Act 2009 provides, with statutory functions, duties and powers conferred on the NSW Trustee. The efficacy of an exercise of the Court's protective jurisdiction often depends on the availability of such an administrative structure.
The current structure is designed, inter alia, to serve the Court's exercise of protective jurisdiction, whatever the source of the Court's jurisdiction: PB v BB [2013] NSWSC 1223 at [27]-[30]; M v M [2013] NSWSC 1495 at [11]-[20]; Ability One Financial Management Pty Limited v JB by his tutor AB [2014] NSWSC 245 at [55]-[60]. The jurisdiction of the Court, that exercised by NCAT, and legislation governing the NSW Trustee and the Public Guardian are sympathetically integrated, not operating in discordant tension.
A common feature of the appointment of a "financial manager" by NCAT (under the Guardianship Act, Part 3A) or a "manager" by the Court or the Mental Health Review Tribunal (under the NSW Trustee and Guardian Act, Part 4.2, Part 4.3 or Part 4.4) is that a decision is made "that the estate of [a] person [is to] be subject to management under [the NSW Trustee and Guardian Act]".
Insofar as order 21 defines the powers of the NSW Trustee, as a committee of the estate, by reference to powers that it would have if management of the second defendant's estate were committed to it pursuant to section 41(1)(b) of the NSW Trustee and Guardian Act, it does no more than confirm the powers the NSW Trustee has arising from a similar order made by NCAT, under section 25M(1)(b) of the Guardianship Act, in conferring upon the NSW Trustee the office of financial manager of the second defendant. In each case, the effect of the order is that the estate of the second defendant is subject to management under the NSW Trustee and Guardian Act. See section 41(1)(a) of that Act and the Guardianship Act, section 25E(1).
The Court's inherent jurisdiction, in relation to the estate of a person incapable of managing his or her affairs, is not limited to subjection of an estate to management under the NSW Trustee and Guardian Act. In an appropriate case, an independent regime of management might be established. However, the availability of the management regime for which the Act provides exerts a strong gravitational pull upon a consideration of what is in the interests, and for the benefit, of a person in need of protection, whose welfare the Court is bound to regard as paramount.
The nature of the Court's inherent, protective jurisdiction remains constant, though the administrative machinery and procedures attending its exercise may change from time to time: In re WM (1903) 3 SR (NSW) 552 at 561, 567 and 569.
In modern discourse, a committee of the estate has its equivalent in a protected estate manager: either a "manager" appointed by the Court pursuant to the NSW Trustee and Guardian Act, section 41; a "manager" appointed by the Mental Health Review Tribunal pursuant to Part 4.3 Division 1 (sections 43-52) of the same Act; or a "financial manager" appointed by NCAT under the Guardianship Act, sections 25E, 25G, 25H and 25M.
A committee of the person, in the case (as in the current proceedings) of a person aged over 16 years, has its current equivalent in the appointment by NCAT of a "guardian" under the Guardianship Act, Part 3 (sections 7-25C): cf, Re C [2012] NSWSC 1097 at [49]-[52]. When section 23 of the Guardianship Act speaks of an exercise by the Court's "jurisdiction with respect to the guardianship of persons, appointing a guardian of that person's person" it speaks, in substance, of a committee of the person appointed as a guardian.
Governed by its purposive character, the limits of the inherent jurisdiction, to do what is for the benefit of a person in need of protection, have not, and cannot, be defined: Marion's Case (1992) 175 CLR 218 at 258.
Nevertheless, where (as in NSW) there is a statutory scheme involving a court or tribunal established as a specialist jurisdiction designed to bear the burden of routine cases requiring an exercise of protective jurisdiction, the Court's inherent jurisdiction is generally reserved for dealing with uncontemplated, or exceptional, situations in which it appears necessary for the jurisdiction to be invoked for the protection of those who fall within its ambit: Re Eve [1986] 2 SCR 388 at 411; (1986) 31 DLR (4th) 1 at 17; Re C (No 2) [2012] NSWSC 1351 at [6]-[7].
The Court's inherent jurisdiction may be called in aid specifically to reinforce the efficacy of the statutory functions and powers conferred on NCAT, not merely (as may be necessary) to supplement or circumvent the statutory scheme: Carseldine v Director of Department of Children's Services (1974) 133 CLR 345 at 366; P v NSW Trustee and Guardian [2015] NSWSC 579 at [111]-[116]; Re C [2012] NSWSC 1097 at [62]-[67].
The orders made in the current proceedings have that object in view, as well as the broader object, served by an exercise of equity jurisdiction (Wong v Silkfield (1999) 199 CLR 255 at 262-263[17]; Ashburner's Principles of Equity (London, 2nd ed, 1933), pp 7-8 and 42-43; F Jordan, Chapters in Equity (Sydney, 6th ed, 1947), p 145, reprinted in Select Legal Papers (Sydney, 1983)), and reflected in section 63 of the Supreme Court Act, of preventing a multiplicity of legal proceedings, mindful of a need (recognised in the Civil Procedure Act 2005 NSW, section 56) to facilitate the just, quick and cheap resolution of real issues in proceedings before the Court.
[11]
Amendments
31 August 2015 - Addendum 31 August 2015.
30 January 2017 - Order (4) amendment of AR.
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: 30 January 2017