P v NSW Trustee and Guardian

30 NSWLR 417 Eastman v The Queen (2000) 203 CLR 1 EB & Ors v Guardianship Tribunal & Ors [2011] NSWSC 767 Ex parte Cranmer (1806) 12 Ves Jun 445 33 ER 168 Ex-parte Warren (1805) 10 Ves Jun 622; 32 ER Finance Facilities Pty Limited v Federal Commissioner of Taxation (1971) 127 CLR 106 GAU v GAV [2014] QCA 308 Gibbons v Wright (1954) 91 CLR 423 Gibson v Jeyes (1801) 6 Ves Jun 266; 31 ER 1044 GNM v ER [1983] 1 NSWLR 144 GPG v ACF [1983] 1 NSWLR 54 Hall v Nominal Defendant (1966) 117 CLR 423 Harris v Caladine (1991) 172 CLR 84 Holt v Protective Commissioner (1993) 31 NSWLR 227 House v The King (1936) 55 CLR 499 In Re Holmes (1827) 4 Russ 182; 38 ER 774 In the Matter of Case (1915) 214 NY 199 JMK v RDC and PTO v WDO [2013] NSWSC 1362 K v K [2000] NSWSC 1052 Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390 M and the Protected Estates Act 1983 (1988) 12 NSWLR 96 M v M [1981] 2 NSWLR 334 M v M [2013] NSWSC 1495 Maria Saravinovska v Krste (Chris) Saravinovski [2015] NSWSC 128 Marion's Case (1992) 175 CLR 218 McD v McD [1983] 3 NSWLR 81 MN v AN (1989) 16 NSWLR 525 O'Sullivan v Farrar (1989) is 168 CLR 210 P v R [2003] NSWSC 819PY v RJS [1982] 2 NSWLR 700 PB v BB [2013] NSWSC 1223 Perpetual Trustee Company Ltd v Fairlie-Cunninghame (1993) 32 NSWLR 377 Pilbaro Infrastructure Pty Limited v Australian Competition Tribunal (2012) 246 CLR 379 Protective Commissioner v D (2004) 60 NSWLR 513 PY v RJS [1982] 2 NSWLR 700 Re an alleged incapable person (1959) 76 WN (NSW) 477 Re Application for partial management orders [2014] NSWSC 1468 Re B (No 1) [2011] NSWSC 1075 Re Baby S [2014] NSWSC 871 Re C [2012] NSWSC 1097 Re D [2012] NSWSC 1006 Re Estate Gowing; Application for Executor's Commission [2014] NSWSC 247; 17 BPR [98635] Re Eve [1986] 2 SCR 388 Re Fenwick (2009) NSWLR 222 Re Frieda and Geoffrey [2009] NSWSC 133; 40 Fam LR 608 Re GHI (a protected person) [2005] NSWSC 581 Re R [2000] NSWSC 886 Re R [2014) NSWSC 1810 Re Victoria [2002] NSWSC 647; 29 Fam LR 157 Re W and L (Parameters of protected estate management orders) [2014] NSWSC 1106 Ridgeway v Darwin (1882) 8 Ves Jun 66, 32 ER 275 S v S [2001] NSWSC 146 SAB v SEM and Ors [2013] NSWSC 253 Scott v Scott [2012] NSWSC 1541; (2012) 7ASTLR 299 Secretary Department of Health and Community Services v JWB and SMB (Marion's Case) (1992) 175 CLR 218 Sherwood v Sanderson (1815) 19 Ves Jun 280; 34 ER 521 Tasty Chicks Pty Ltd v Chief Commissioner of State Revenue (NSW) (2011) 245 CLR 446 Tomko v Plasty (No 2) (2007) 71 NSWLR 61 Turnbull v NSW Medical Board [1976] 2 NSWLR 281 Walsh v Law Society of New South Wales (1999) 198 CLR 73 Ward v Williams (1955) 92 CLR 496 Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492 Wellesley v Duke of Beaufort (1827) 2 Russ 1, 38 ER 236 Wellesley v Wellesley (1828) 2 Bli. NS 124; 4 ER 1078 Texts Cited: HS Theobald, The Law Relating to Lunacy (Stevens and Sons, London, 1924), pp 5-6, 37, 41-44, 47-49 59-60, 50-53, 54, 61, 362-363, 380, 381, 382, 401-403, 462, 511-513 Philip Powell, Forbes Lecture: The origins and development of the protective jurisdiction of the Supreme Court of New South Wales (Forbes Society, Sydney, 2004), pp 23-33 Leonard Shelford, A Practical Treatise on the Law concerning Lunatics, Idiots and Persons of Unsound Mind (Sweet and Stevens & Sons, London, 1833), pages 25-27 Category: Principal judgment Parties: Plaintiff: Protected Person First Defendant: NSW Trustee and Guardian Second Defendant: Son of Protected Person Representation: Counsel: Plaintiff: R Henderson First Defendant: K Bozinovska, solicitor Second Defendant: D Christofis

Solicitors: Plaintiff: Geoff Williams & Associates First Defendant: NSW Trustee and Guardian Second Defendant: Attwood Marshall File Number(s): 2014/00259237

INTRODUCTION

1. These proceedings are ultimately, and centrally, about the welfare of an elderly woman (the plaintiff) in transition from independent living to residence in an aged care facility.
2. The plaintiff was born in 1923 and is presently aged nearly 92 years. The events which triggered proceedings in the Guardianship Division of the Civil and Administrative Tribunal of NSW ("NCAT" or "the Tribunal"), now under appeal, arose in the context of her being required, for her physical welfare, to move from her home in regional New South Wales to a local aged care facility. She is a widow. Her husband died, on her birthday, in 2012. She subsequently suffered ongoing grief and social isolation. She is frail and unable, by reason of her frailty, to live alone or independently. She has two adult sons. Neither lives near her. One, the second defendant, ordinarily lives in New Zealand. The other, who suffers from a disability, lives in a care facility in Sydney.
3. In the process of arranging for her to move into an aged care facility, a friend upon whom she appears to be socially dependent ("KM") was granted an Enduring Power of Attorney, ostensibly expressed in terms larger than any formal authority he may have needed, and (until the Tribunal's intervention) he was poised to buy her home at a $100,000 discount on current market value.
4. The plaintiff complains of decisions of the Tribunal, the effect of which was to order (under the Guardianship Act 1987 NSW) that: 1. pursuant to sections 25E and 25H, the estate of the plaintiff be subject to management under the NSW Trustee and Guardian Act 2009 NSW; and 2. pursuant to section 25M(1)(b), management of the estate be committed to the NSW Trustee and Guardian ("the NSW Trustee"), the first defendant in the current, Supreme Court proceedings.
5. On 14 February 2014 the Tribunal, inter alia, made an interim financial management order (under the Guardianship Act, section 25H) affecting the plaintiff and an order (under section 25M(1)(b) of the Act) committing management of her estate to the NSW Trustee.
6. On 17 June 2014 those orders lapsed when the Tribunal made a financial management order (under the Guardianship Act, section 25E) in respect of the plaintiff and, consequentially upon that order, committed management of her estate to the NSW Trustee under section 25M(1)(b).

CONTEXT : THE NATURE OF FINANCIAL MANAGEMENT ORDERS

1. The expression "financial management order" is defined by section 25D of the Guardianship Act: 1. to mean an order (made under section 25E of the Act) that the estate, or part of the estate, of a person "be subject to management under the NSW Trustee and Guardian Act"; and 2. to include an "interim financial management order" (made under section 25H of the Guardianship Act), for a specified period not exceeding six months, "pending the Tribunal's further consideration of the capability of the person to whom the order relates to manage his or her own affairs".
2. With emphasis added, section 25G of the Guardianship Act provides as follows: 25G Grounds for making financial management order The Tribunal may make a financial management order in respect of a person only if the Tribunal has considered the person's capability to manage his or her own affairs and is satisfied that: (a) the person is not capable of managing those affairs, and (b) there is a need for another person to manage those affairs on the person's behalf, and (c) it is in the person's best interests that the order be made.
3. If the Tribunal makes a financial management order in respect of the estate (or part of the estate) of a person, the Tribunal may, by order: (a) appoint a suitable person as manager of the estate; or (b) commit management of the estate to the NSW Trustee: Guardianship Act, section 25M (1).
4. The provisions of the Guardianship Act authorising the Tribunal to make a "financial management order" (particularly sections 25E, 25G and 25M) are, for the Tribunal, counterparts of similar powers (to appoint a "manager") conferred: 1. on the Court, by sections 40-41 of the NSW Trustee and Guardian Act; and 2. within a more limited ambit, on the Mental Health Review Tribunal, by Part 4.3 Division 1 (sections 43-52) of the NSW Trustee and Guardian Act.
5. Once a "financial management order" is made (under section 25E or section 25H of the Guardianship Act) or, to use a convenient label, a "management order" is made by the Court or the Mental Health Review Tribunal (under section 41 (1) or section 46 of the NSW Trustee and Guardian Act respectively) so that, by means of such an order, the estate of a person is subject to management under the NSW Trustee and Guardian Act, the person is deemed by statute to be a "protected person": Guardianship Act, section 25D; NSW Trustee and Guardian Act, section 38.

CONTEXT : THE PURPOSIVE CHARACTER OF THE PROTECTIVE JURISDICTION

1. The purposive character of the protective jurisdiction (including that exercised by the Guardianship Division of NCAT, and the Mental Health Review Tribunal, by legislation) is governed by a central informing idea: that the jurisdiction exists for the care of those who are not able 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), and that an exercise of the jurisdiction affecting a person in need of protection must be for the benefit, and in the best interests, of that person as an individual, not for the benefit of the state, or others, or for the convenience of carers (Re Eve [1986] 2 SCR 388 at 409-411, 414, 425-428, 429-430, 431-432 and 434; 31 DLR (4th) 1 at 16-17, 19, 28-30, 31, 32 and 34). Implicit in the focus on a person in need of protection "as an individual" is respect for his or her autonomy.
2. The jurisdiction's central, informing idea (sometimes described as the "welfare principle" or the "paramountcy principle") finds legislative expression, in similar terms, in both the Guardianship Act, section 4 and the NSW Trustee and Guardian Act, section 39: CJ v AKJ [2015] NSWSC 498 at [17]-[29].
3. In the context of the current proceedings, this can be most conveniently illustrated by setting out section 4 of the Guardianship Act (with emphasis added): "4. General principles It is the duty of everyone exercising functions under this Act with respect to persons who have disabilities to observe the following principles: (a) the welfare and interests of such persons should be given paramount consideration, (b) the freedom of decision and freedom of action of such persons should be restricted as little as possible, (c) such persons should be encouraged, as far as possible, to live a normal life in the community, (d) the views of such persons in relation to the exercise of those functions should be taken into consideration, (e) the importance of preserving the family relationships and the cultural and linguistic environments of such persons should be recognised, (f) such persons should be encouraged, as far as possible, to be self-reliant in matters relating to their personal, domestic and financial affairs, (g) such persons should be protected from neglect, abuse and exploitation, (h) the community should be encouraged to apply and promote these principles."

THE COURSE OF NCAT PROCEEDINGS

1. Proceedings in the Tribunal were instituted by the second defendant to the current proceedings, the able-bodied son of the plaintiff ordinarily resident in New Zealand.
2. By an application filed in the Tribunal on 10 February 2014, he applied under section 36 of the Powers of Attorney Act 2003 NSW for a review of the making, operation and effect of the Enduring Power of Attorney granted by the plaintiff to her friend, KM, on 20 December 2013.
3. The decisions of the Tribunal the subject of complaint in the current proceedings were made on two occasions: first, on 14 February 2014, when orders having an interlocutory flavour were made by the Tribunal; and, secondly, on 17 June 2014, when the Tribunal made orders more distinctly final in character.
4. The plaintiff, personally, participated in both Tribunal hearings. She participated in the first hearing (on 14 February 2014) by telephone. For the second hearing, on 17 June 2014, the Tribunal (with the same legal and professional members, but a different community member) travelled to the plaintiff's region. She attended that hearing in person. She had no legal representation on either occasion. On both occasions, she was accompanied by KM.
5. A representative of the NSW Trustee (the current first defendant) and the plaintiff's son (the second defendant) participated in the hearing of 17 June 2014 by telephone. The son had also participated in the hearing of 14 February 2014 by telephone.
6. On the first of the two hearings, on 14 February 2014, the Tribunal decided: 1. under section 36 (1) of the Powers of Attorney Act, to review the making of the Power of Attorney; 2. under section 36 (2) of the Powers of Attorney Act, to make no orders under section 36 of the Act (upon a review of the Power of Attorney) but, under section 37 (1) of the Powers of Attorney Act, to treat the application for review of the Power of Attorney as an application for a financial management order under Part 3A (sections 25D-25U) of the Guardianship Act; 3. to adjourn the application for a financial management order for six months and (pursuant to sections 25F(d), 25H and 25M(1) (b) of the Guardianship Act) to make an interim financial management order, committing management of the plaintiff's estate to the NSW Trustee; and 4. to reserve liberty to apply for a restoration of the Tribunal proceedings for an earlier hearing.

The Summons

1. By a summons filed in the Administrative Law List of the Common Law Division of the Court on 3 September 2014, the plaintiff applied for judicial review of "the decision" of the Tribunal, described as "the committal of the estate of the plaintiff to the management of the NSW Trustee".
2. The summons named the NSW Trustee as the only defendant to the proceedings. It sought an order that "the decision" of the Tribunal be quashed on the grounds of a denial of natural justice and an error in law.
3. On the return of the summons (on 12 September 2014) a registrar ordered that the plaintiff be granted leave to file an amended summons, and that the proceedings be transferred to the Equity Division. The intention of the registrar, not immediately given effect, was that the proceedings be dealt with in the Equity Division's Protective List.

The Amended Summons

1. Pursuant to the leave granted, the plaintiff filed an amended summons on 19 September 2014. Essentially, it refined the plaintiff's case in two respects.
2. First, it reconstituted the proceedings: the NSW Trustee became the first defendant; the plaintiff's son (the applicant to the Tribunal) was joined as the second defendant; and the Tribunal itself was joined as the third defendant.
3. Secondly, it set out the grounds (already here elaborated) for an administrative law challenge to the decision(s) of the Tribunal.
4. In the Equity Division, the proceedings came before a registrar of the Court, in the Division's general list, on 8 October 2014, 3 December 2014 and 4 February 2015. On the first two occasions the parties agreed to a timetable and the registrar gave directions conforming to their agreement. On the third occasion the registrar referred the proceedings to the duty judge, essentially because of difficulties experienced in management of the plaintiff's estate during pendency of the proceedings in the Court.
5. In resolving an impasse that had led to indecision on the part of the NSW Trustee as to what (if anything) it could do in management of the plaintiff's estate pending the plaintiff's application for judicial review, the Chief Judge in Equity, as duty judge, drew to the plaintiff's attention that: 1. clauses 12 and 14 of Schedule 6 to the Civil and Administrative Tribunal Act provide an avenue of appeal to the Court from decisions of the Tribunal; and 2. sections 84 (1)(b) and 84 (3) of the Civil and Administrative Tribunal Act provide that the Tribunal cannot be made a party to such an appeal.
6. Her honour subsequently ordered that the proceedings be listed before me, as Protective List Judge, for directions.

The Further Amended Summons

1. When the proceedings came before me on 27 February 2015 the principal contestants (the plaintiff and the second defendant) were represented by counsel. The NSW Trustee (the first defendant) appeared, by a solicitor in its employ, to assist the Court. Having earlier (on 8 October 2014) filed a submitting appearance, the Tribunal (the third defendant) played no part in the proceedings.
2. After engaging the parties in an extended directions hearing, I made notations and orders, inter alia, to the following effect: 1. Order that the plaintiff be granted leave to amend her amended summons by filing a "further amended summons". 2. Order that, for the purpose of regularising the constitution of the proceedings, the plaintiff be granted such leave as may be necessary to discontinue proceedings against the Tribunal and that, accordingly, that the Tribunal be removed from the record of the Court as the third defendant. 3. Note that no party in the proceedings as now constituted has any objection to the Court exercising its inherent protective jurisdiction in the proceedings should the Court form the view that it is in the interests, and for the benefit, of the plaintiff that it do so. 4. Note that, by operation of clause 14(5) of Schedule 6 to the Civil and Administrative Tribunal Act, the decision of the Tribunal under appeal in these proceedings is stayed subject to any interlocutory orders made by the Court. 5. Note that the first defendant has taken steps, so far as it can, to ensure that the plaintiff receives the whole of her pension for her own use and benefit, under her own management. 6. Note that, subject to any further order of the Court, it is the intention of the Court that the plaintiff continue to receive the whole of her pension on that basis. 7. Order, subject to further order, that the NSW Trustee: 1. be directed to liaise with the solicitor for the plaintiff, should he invite the NSW Trustee to do so, as to management of the estate of the plaintiff; and 2. be at liberty to take such steps as to the NSW Trustee seems appropriate, in consultation with the solicitor for the plaintiff, to ensure that reasonable provision is made for, or available to, the plaintiff out of her estate.
3. The plaintiff's further amended summons refined her case in two respects. First, it removed the Tribunal from the proceedings. Secondly, with an implicit reliance on clauses 14(1)(b) and 14(3) of Schedule 6 to the Civil and Administrative Tribunal Act, it sought an order that the court "permit fresh evidence to be given at the hearing of this appeal".

Another Directions Hearing

1. Because of time constraints and a continuing need to refine the parties' respective cases in order to ensure that the real questions in dispute could be accurately stated for determination, a hearing scheduled for 4 March 2015 necessarily took the form of a directions hearing. Earlier hopes of a final hearing proved too sanguine, a bridge too far.
2. After further engagement of the parties in discussion on that occasion, I made notations and orders, inter alia, to the following effect: 1. NOTE that the evidence to be relied upon by the plaintiff in support of her further amended summons now includes (in addition to that recorded in earlier notations) a purported revocation of the power of attorney executed by the plaintiff in favour of KM on 20 December 2014 (now Exhibit P2). 2. NOTE that, unless the plaintiff advises the Court and the other parties to the proceedings to the contrary, in writing, no later than (a specified time) the Court will proceed on the basis that: 1. the plaintiff has abandoned her claim for administrative law relief. 2. the only order of NCAT under challenge is the financial management order. 3. the interim financial management order having been spent, no relief is sought by the plaintiff with respect to it. 4. the plaintiff's case is grounded on an appeal under clause 14 of Schedule 6 to the Civil and Administrative Tribunal Act, together with reliance by the plaintiff on the Court's powers (under the inherent protective jurisdiction and section 86 of the NSW Trustee and Guardian Act) to order that a financial management order be revoked. 1. NOTE that the plaintiff seeks, and no party to the proceedings opposes, such extension of time (if any) as may be necessary to ensure that her appeal (under clause 14 of Schedule 6 to the Civil and Administrative Tribunal Act) is competent. 2. NOTE that the second defendant contends that, if the Court were otherwise minded to make an order revoking the financial management order affecting the plaintiff, it should refrain from doing so without the benefit of some independent medical examination of the plaintiff.
3. For the avoidance of doubt in management of the plaintiff's estate, the Court should in due course make a formal declaration that the power of attorney executed by the plaintiff in favour of KM is of no effect.

An Aborted Final Hearing

1. By the time the proceedings returned to me on 9 March 2015, the plaintiff had acquiesced in characterisation of her case as set out in paragraph 89 (b); the plaintiff and the second defendant had filed written submissions; and the NSW Trustee had served a formal affidavit outlining the course of proceedings, its management of the plaintiff's estate and the nature and size of the estate.
2. An occasion reserved for a hearing of the plaintiff's appeal became a further, extended directions hearing in which attention was given to the nature of the appeal process, the decisions required to be made in giving effect to it and the character of the Court's protective jurisdiction. Frustrating though this was, it is not altogether uncommon in contested Protective List proceedings, in which parties take, and often need, time to work through practical, life management issues beyond the ken of formal legal process.
3. At the end of a discussion between bench and bar, counsel for the plaintiff: (a) applied for an adjournment so that the plaintiff might personally attend before the Court; and (b) announced that the plaintiff agreed to orders being made to enable the NSW Trustee, as financial manager, to sell her residence free of any preferential arrangement formerly proposed by her for the benefit of her friend and attorney, KM.
4. Accordingly, notations and orders were made, inter alia, to the following effect: 1. Upon the application of the plaintiff, ORDER that the hearing of these proceedings be adjourned, with directions designed to accommodate the convenience of the plaintiff in her attendance at court on a date convenient to her. 2. NOTE that, upon an assumption that the evidence remains substantially as hitherto foreshadowed, no party objects to the proceedings being conducted, primarily, by way of an appeal under clause 14 of Schedule 6 of the Civil and Administrative Tribunal Act, attended by the following orders under clause 14: 1. an order, under clause 14(1)(b), that the plaintiff be granted leave to appeal from the financial management order made by the Tribunal on 17 June 2014 on "all grounds" so as to allow a merits review; 2. an order, under clause 14(2)(c), that the plaintiff be granted such, if any, extension of time as may be necessary to enable her to institute an appeal under clause 14; 3. an order, under clause 14(3)(a), that the plaintiff's appeal be by way of a new hearing; and 4. an order, under clause 14(3)(b), that the parties be permitted to adduce "in addition to the evidence received by the Tribunal at first instance" evidence specifically identified by the Court. 1. NOTE that the plaintiff confirms that the case sought to be advanced by her in these proceedings bears the character attributed to it in paragraph 89(b) above. 2. NOTE that the plaintiff and the second defendant agree that the NSW Trustee (as the plaintiff's financial manager) can, and should, proceed to sell the plaintiff's former residence, free of any preferential arrangement formerly proposed by her for KM. 3. ORDER, subject to further order, that the NSW Trustee be at liberty to sell the plaintiff's former residence, free of any preferential arrangement for KM or any other person. 4. ORDER, subject to further order, that the NSW Trustee be at liberty to apply funds forming part of the plaintiff's estate in maintenance of property owned by her and in the preparation of her former residence for sale. 5. ORDER, subject to further order, that the solicitor for the plaintiff, within a specified time, account to the NSW Trustee for $25,000 received by him from KM as a reimbursement of funds drawn down by KM, with the consent of the plaintiff, as her attorney. 6. ORDER that the NSW Trustee and the solicitor for the plaintiff liaise about existing and prospective arrangements for payment of aged care fees by or on behalf of the plaintiff, whether out of her pension or her estate generally.

The Final Hearing

1. Although broad patterns may be discernible in the exercise of protective jurisdiction (including appeals under clause 14 of Schedule 6 of the Civil and Administrative Tribunal Act), the protective purpose of the jurisdiction requires, and enables, the practice and procedures of the Court to be adapted to the needs of each particular case: Theobald, The Law Relating to Lunacy (1924), pages 59-60, 362-363, 380-381, 382 and 462.
2. The plaintiff's appeal came on for hearing on 26 March 2015, at which time the plaintiff attended court personally (accompanied, she said, by KM, who remained outside) and was represented by counsel. The NSW Trustee (the first defendant) was represented by an in-house solicitor. The plaintiff's able-bodied son (the second defendant) was represented by counsel.
3. At the outset of the hearing, by way of a final directions hearing, the ambit of the evidence sought by each participant to be adduced was expressly identified, as was the procedure to be followed in the Court's engagement with the plaintiff personally. All were in agreement about the task at hand.
4. That consensus having been reached, without objection from any quarter: 1. orders were made under clause 14 as earlier foreshadowed, and noted in paragraph 94(b) above; and 2. all the affidavit and documentary evidence, duly identified, was formally recorded as having been adduced.
5. This structured approach to the conduct of the appeal was necessary: (a) to ensure that the appeal could be contained within reasonable limits if permitted to go beyond the appeal on a question of law for which clause 14(1)(b) provides; (b) to make sure that the plaintiff and her counsel were comfortable with the procedure to be followed; and (c) to ensure that any engagement with the plaintiff personally could be conducted with as little formality as due process and procedural fairness allow.
6. Procedural formalities having been addressed, all participants in the appeal (bench, bar and the plaintiff personally) congregated around the bar table for an informal discussion with the plaintiff. That discussion was led by me, subject to the possibility of objections (of which there were none), followed by short questions from counsel for the second defendant, and closed by counsel for the plaintiff. The plaintiff was given free rein, throughout, to express her views. She did not hold back.

CONTEXT : INSTITUTIONAL FRAMEWORK OF A CHALLENGE IN THE SUPREME COURT TO A FINANCIAL MANAGEMENT ORDER MADE BY THE GUARDIANSHIP DIVISION OF NCAT

The Guardianship Tribunal replaced by NCAT Guardianship Division

1. NCAT was established on 1 January 2014 (Civil and Administrative Tribunal Act, section 7) and, on its establishment several tribunals, including the Guardianship Tribunal as constituted under the Guardianship Act, were abolished (Civil and Administrative Tribunal Act, Schedule 1, clauses 2 (1) and 3).
2. To all intents and purposes, as a practical matter, the business formerly conducted by the Guardianship Tribunal is now conducted by the Guardianship Division of NCAT. It can fairly be said, colloquially, that the Guardianship Tribunal has been reincarnated as a Division of NCAT.
3. A practical consequence of this is that legislative provisions governing the constitution and operation of the statutory tribunal formerly exercising jurisdiction under the Guardianship Act, formerly found in Part 6 of that Act, are now found, relocated, in Schedule 6 to the Civil and Administrative Tribunal Act.
4. The provisions of the Guardianship Act regulating the making of financial management orders remain substantially unaltered. However, as it bears upon the current proceedings, notice should be taken that the right of appeal from the Guardianship Tribunal to the Court for which section 67 of the Guardianship Act once provided is now found, in substance, in clause 14 of Schedule 6 to the Civil and Administrative Tribunal Act.

Preservation, Reservation and Deployment of Inherent Protective (Parens Patriae) Jurisdiction

1. Nothing in the Civil and Administrative Tribunal Act, the Guardianship Act, the NSW Trustee and Guardian Act or the Powers of Attorney Act deprives the Court of its inherent, protective jurisdiction. Nevertheless, in its exercise of that protective (parens patriae) jurisdiction, the Court is vigilant against allowing overly free access to the jurisdiction in circumstances in which parties might seek to circumvent, or set at nought, a process of appeal from a statutory court or tribunal established as a specialist jurisdiction designed to bear the burden of routine cases.
2. Conforming to a model found in several common law jurisdictions, the Court's parens patriae jurisdiction is generally reserved for dealing with uncontemplated, or exceptional, situations where 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; 31 DLR (4th) 1 at 17.
3. In the exercise of parens patriae jurisdiction over minors, the Children's Court of NSW exercises specialist, statutory jurisdiction, subject to an appeal to the District Court of NSW. In those cases, the Court exercises caution in entertaining parens patriae jurisdiction lest it undermine the integrity of the procedure for appeals to the District Court. The standard approach is that of Palmer J in Re Victoria [2002] NSWSC 647; 29 Fam LR 157 at [37]-[40], supplemented by that of White J in Re Frieda and Geoffrey [2009] NSWSC 133; 40 Fam LR 608 and cases cited therein. Recent examples are Re Baby S [2014] NSWSC 871 at [19]-[23] and CAC v Secretary, Department of Family and Community Services [2014] NSWSC 1855 at [79]-[95]; [2015] NSWCA 105 at [15]-[16].
4. The Court's predisposition to respect the integrity of a statutory appeal process requires reorientation in the context of an exercise of parens patriae jurisdiction over a person, incapable of managing his or her affairs, amendable to an exercise of jurisdiction by the Guardianship Division of NCAT.
5. That is because clause 14 of Schedule 6 to the Civil and Administrative Tribunal Act: (a) provides an avenue of appeal to the Court, not the District Court; and (b) that appeal procedure is able to be adapted, by orders of the Court, to embrace different appellate models.

Recognition, Reservation and Deployment of Administrative Law (Judicial Review) Jurisdiction

1. Building upon the traditional discretionary character of the jurisdiction of the Court to grant administrative law relief, on an application for judicial review, the Civil and Administrative Tribunal Act also recognises that the Court has a discretion to entertain an application for judicial review rather than an appeal; but the Act encourages parties to channel challenges to Tribunal decisions through the appeal procedures for which the Act provides.
2. Section 5(2)(b) provides that a decision of the Tribunal that purports to be made under enabling legislation or the Act is taken to be a decision under that legislation or the Act (as the case may be) if the decision was beyond the power of the decision-maker to make. Section 34 provides, inter alia, that the Court can, but is not required, to refuse to conduct a judicial review of a decision of the Tribunal "if an internal appeal [to an Appeal Panel of the Tribunal] or an appeal to a court could be, or has been, lodged against the decision".
3. Clause 14 of Schedule 6 provides an ample, albeit regulated, appeal procedure to the Court: cf, Allen & Ors v TriCare (Hastings) Pty Ltd & Anor [2015] NSWSC 416 at [60], [62], [64] and [65].

A Practical Consequence of Different Perspectives of Protective and Administrative Law Jurisdictions

1. In administration of the law relating to management of the affairs (whether concerning the person or estate) of a person who is, or may be, incapable of managing his or her own affairs, it can be, as this case illustrates, important to bear in mind the different character of the Court's administrative law and protective jurisdictions, inherent or statutory.
2. The administrative law jurisdiction (largely focused, now, on section 69 of the Supreme Court Act in lieu of prerogative writs), invoked by the plaintiff in both her initial summons and her amended summons, is directed to ensuring that NCAT acts within its jurisdiction, as it must, as a statutory tribunal: CAC v Secretary, Department of Family and Community Services [2014] NSWSC 1855 at [80]-[81]; Re Henry v Secretary, Department of Family and Community Services [2015] NSWCA 89 at [4], [142]-[156], [229]-[230] [233] and [264]-[268]; JL v Secretary, Department of Family and Community Services [2015] NSWCA 88 at [110]-[116]. An exercise of that jurisdiction may, deliberately but perhaps only incidentally, serve the interests, and be for the benefit, of a person who is, may be or is alleged to be, in need of protection. It is not specifically dedicated to that end.
3. An exercise of protective jurisdiction (whether by the Court in exercise of its inherent jurisdiction, or by an exercise of a power conferred on the Court or a statutory tribunal by legislation) is specifically dedicated to service of a person in need of protection.
4. In the current case, a practical effect of a primary focus on the Court's administrative law jurisdiction was that, until the Court drew attention to the statutory right of appeal from NCAT to the Court, and the associated inherent jurisdiction of the Court, and the plaintiff had then shifted her focus towards the protective jurisdiction, management of the plaintiff's estate was paralysed by indecision on the part of the NSW Trustee. The plaintiff's attack on the validity of its appointment as her financial manager left both the plaintiff and the NSW Trustee uncertain who, if anybody, was empowered to make day-to-day decisions.
5. This paralysis could have been constructively addressed, as it ultimately was, by focussed consideration being given to the legislation governing an appeal from the Guardianship Division of the Tribunal (particularly, the Civil and Administrative Tribunal Act, Schedule 6, clause 14 (5)) and the broader jurisdiction of the Court (under the NSW Trustee and Guardian Act and the Court's general jurisdiction) over the estates of persons who are, or may be, in need of protection.

The Broad, Flexible Character of the Clause 14 Statutory Appeal Regime

1. The broad, flexible character of the appeal procedure for which clause 14 provides carries the practical consequence that, in all likelihood, it will only be in a rare case that an administrative law challenge to a decision of the Guardianship Division of NCAT can add anything to either protection of the rights of a person in need of protection or supervision of the work of that Division of the Tribunal.
2. The availability of the Court's independent, general protective jurisdiction (principally, the inherent jurisdiction derived from the Third Charter of Justice 1823 and related Imperial legislation; the jurisdiction conferred by section 23 of the Supreme Court Act 1970 NSW; and the jurisdiction conferred by the NSW Trustee and Guardian Act) reinforces that engaged by an appeal under clause 14.
3. The hallmarks of the Court's protective jurisdiction, in all its manifestations, are, primarily, its purposive (protective) character and, consequentially, its subordination of procedure to the (protective) purpose served.

APPEALS FROM A FINANCIAL MANAGEMENT ORDER MADE BY NCAT (GUARDIANSHIP DIVISION)

The Constitution of the NCAT Guardianship Division

1. When exercising its substantive Division functions (as it does when it makes financial management orders under the Guardianship Act) the Guardianship Division of the Tribunal is generally (as it was in the current proceedings) constituted by three members of the Division (Civil and Administrative Tribunal Act, Schedule 6, clause 4): one member who is an Australian lawyer; a second member with a professional qualification; and a third member with a community-based qualification.
2. The member with a "professional qualification" is "a person (such as a medical practitioner, psychologist or social worker) who has experience in assessing or treating persons to whom [the Guardianship Act] relates": Schedule 6, clause 1 (2) (a). A member who has a "community based qualification" is a "person who has experience with persons to whom [the Guardianship Act] relates": Schedule 6, clause 1 (2) (b). Avenues of Appeal from NCAT's Guardianship Division
3. Clause 12 of Schedule 6 provides two avenues of appeal for a party to proceedings in which the Guardianship Division of the Tribunal has made a financial management order. A choice can be made either to pursue "an internal appeal" to an Appeal Panel of NCAT (in accordance with Division 2 of Part 6, including section 80, of the Civil and Administrative Tribunal Act) or an appeal to the Supreme Court in accordance with Part 6 (clauses 12-14) of Schedule 6 to the Act.
4. Clause 13 of Schedule 6 governs the constitution of an Appeal Panel for the determination of an internal appeal.
5. Clause 14 of Schedule 6 governs an appeal to the Supreme Court.

The Terms of Clause 14

1. Clause 14 is in the following terms (with emphasis added): "14. Appeals to Supreme Court under this Part (1) A party to proceedings in which an appealable Division decision [including a financial management order under the Guardianship Act, section 25E and an interim financial management order made under section 25H] is made may appeal to the Supreme Court against the decision: (a) in the case of an interlocutory decision of the Tribunal - with the leave of the Court, or (b) in the case of any other kind of decision - as of right on any question of law, or with the leave of the Court, on any other grounds. (2) An appeal under this Part is to be instituted: (a) in the case of an ancillary or interlocutory decision of the Tribunal - within the period ending 28 days after the relevant decision has been made, or (b) in any other case - within the period ending 28 days after the day on which the written statement of reasons for the decision is given to the person seeking to appeal, or (c) within such further time as the Supreme Court may, in any case, allow. (3) The Supreme Court in an appeal under this Part may: (a) decide to deal with the appeal by way of a new hearing if it considers that the grounds for the appeal warrant a new hearing, and (b) permit such fresh evidence, or evidence in addition to or in substitution for the evidence received by the Tribunal at first instance, to be given in the new hearing as it considers appropriate in the circumstances. (4) In determining an appeal, the Supreme Court may make such orders as it considers appropriate in light of its decision on the appeal, including (but not limited to) orders that provide for any one or more of the following: (a) the decision under appeal to be confirmed, affirmed or varied, (b) the decision under appeal to be quashed or set aside, (c) the decision under appeal to be quashed or set aside and for another decision to be substituted for it, (d) the whole or any part of the case to be reconsidered by the Tribunal at first instance, either with or without further evidence, in accordance with the directions of the Supreme Court. (5) Subject to any interlocutory order made by the Supreme Court, an appeal to the Supreme Court operates to stay the decision under appeal."

The Nature of an "Appeal"

1. The nature of an "appeal" depends on the terms of the legislation that provides for an entitlement to appeal and governs the appeal. A right of appeal is a creature of statute: Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616 at 619; Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390 at 400 [27].
2. Because there are various forms of procedure capable of description as an "appeal" (as illustrated in Turnbull v NSW Medical Board [1976] 2 NSWLR 281 at 297C-298A), importance attaches to identification of the character of the process of "appeal" under consideration and the duties and powers of the Court conducting the appeal: Walsh v Law Society of New South Wales (1999) 198 CLR 73 at 90 [51].
3. At one end of what might, loosely, be called a spectrum of meanings attributed to the word "appeal" commonly lies the concept of an appeal stricto sensu ("in the strict sense"). That is taken to be a process in which the aid of the Court is sought to redress error in the decision, or process of decision-making, of a lower court or tribunal. No appealable error exists if the original decision-maker correctly found the facts on the material before it, and correctly applied the law to those facts, in the course of deciding issues raised before it for determination, the Court being required, and allowed, to do no more than to give such judgment as ought to have been given at the original hearing: Eastman v The Queen (2000) 203 CLR 1 at 33 [104].
4. An appeal stricto sensu is generally compared with an appeal de novo (an appeal "by way of a new hearing") at the other end of the spectrum. The critical difference between the two concepts is, generally, that in the former type of appeal the powers of the Court are exercisable only if an appellant can demonstrate that, having regard to all the evidence before the Court, the order under appellate challenge is the result of some legal, factual or discretionary error, whereas, in the latter type of appeal, those powers may be exercised regardless of error: Allesch v Maunz (2000) 203 CLR 172 at 180-181 [23].
5. A hearing de novo generally involves the exercise of original jurisdiction and may require the original informant or complainant to start again, and to make out his, her or its case afresh: Harris v Caladine (1991) 172 CLR 84 at 124-125.

Clause 14 in the Context of the Supreme Court's "Rules of Court"

Intersection between Clause 14 and SCA s 75A

1. Clause 14 must be read with section 75A of the Supreme Court Act 1970 NSW although, by operation of section 75A(4), the clause largely displaces the section.
2. Section 75A applies to appellate review of administrative decisions as well as to appellate review of judicial decisions. Section 75A(4) directs attention to the particular appellate jurisdiction in aid of which the section is invoked; the limits of that jurisdiction, and of particular powers accompanying its grant; as well as the nature and purpose of the jurisdiction of the original decision-maker: Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390 at 399[27] - 401[30]; Tasty Chicks Pty Ltd v Chief Commissioner of State Revenue (NSW) (2011) 245 CLR 446 at 453 [16]-[17].
3. Section 75A is in the following terms (with emphasis added): "75A. Appeal (1) Subject to subsections (2) and (3), this section applies to an appeal to the Court and to an appeal in proceedings in the Court. (2) This section does not apply to so much of an appeal as relates to a claim in the appeal: (a) for a new trial on a cause of action for debt, damages or other money or for possession of land, or for detention of goods, or (b) for the setting aside of a verdict, finding, assessment or judgment on a cause of action of any of those kinds, being an appeal arising out of: (c) a trial with a jury in the Court, or (d) a trial: (i) with or without a jury in an action commenced before the commencement of section 4 of the District Court (Amendment) Act 1975 , or (ii) with a jury in an action commenced after the commencement of that section, in the District Court. (3) This section does not apply to: (a) an appeal to the Court under the Crimes (Local Courts Appeal and Review) Act 2001 , or (b) to a case stated under the Criminal Appeal Act 1912 . (4) This section has effect subject to any Act. (5) Where the decision or other matter under appeal has been given after a hearing, the appeal shall be by way of rehearing. (6) The Court shall have the powers and duties of the court, body or other person from whom the appeal is brought, including powers and duties concerning: (a) amendment, (b) the drawing of inferences and the making of findings of fact, and (c) the assessment of damages and other money sums. (7) The Court may receive further evidence. (8) Notwithstanding subsection (7), where the appeal is from a judgment after a trial or hearing on the merits, the Court shall not receive further evidence except on special grounds. (9) Subsection (8) does not apply to evidence concerning matters occurring after the trial or hearing. (10) The Court may make any finding or assessment, give any judgment, make any order or give any direction which ought to have been given or made or which the nature of the case requires."

A Distinction between Clause 14 and Old Section 67

1. In one important, particular respect, clause 14 is, in form, different from its predecessor, section 67 of the Guardianship Act.
2. So far as is presently material, section 67 (with emphasis added) was in the following terms: "67. Appeals to the Supreme Court (1) A party to a proceeding before the Tribunal (whether under [the Guardianship Act] or any other Act) may appeal to the Supreme Court from any decision of the Tribunal in that proceeding: (a) as of right, on a question of law, or (b) by leave of the Supreme Court, on any other question…. (3) The Supreme Court shall hear and determine the appeal and may make such orders as it thinks appropriate in the light of its decision. (4) Without affecting the generality of subsection (3), the orders that may be made by the Supreme Court on an appeal include: (a) an order affirming or setting aside the decision of the Tribunal, and (b) an order remitting the case to be heard and decided again by the Tribunal (either with or without the hearing of further evidence) in accordance with the directions of the Supreme Court. (5) Subject to any interlocutory order made by the Supreme Court, an appeal operates to stay the decision appealed against."
3. Section 67 was repealed on the commencement of the Civil and Administrative Tribunal Act.
4. Section 67(1) did not, as clause 14(1) does, distinguish between an "interlocutory decision" of the Tribunal and other kinds of Tribunal decisions.
5. The word "interlocutory" requires, in this context, an appreciation that all financial management orders made by the Tribunal are, in a sense, provisional because (to use deliberately neutral language) they can be modified or set aside. An interim financial management order (under section 25H of the Guardianship Act) carries, in its name, an express acknowledgement of its provisional character. Sections 25N-25R of the Act empower the Tribunal to review or revoke a financial management order. Sections 25S-25U of the Act empower the Tribunal to review the appointment of a financial manager.
6. Section 86 of the NSW Trustee and Guardian Act, by the generic terms in which it is expressed, empowers the Court to revoke either a "management order" (made under section 41(1)(a) or section 46(1) of that Act) or a financial management order made under the Guardianship Act.

Requirement of a Tutor, and Dispensation of the Requirement, in Supreme Court Proceedings

1. The need to recall legislative context, including rules of court governing the procedural framework of proceedings in the Court, reminds us that these things take their colour from the purpose of the particular proceedings, and that procedural rules are servants, not masters of the Court. This can be illustrated, in the context of the current proceedings, by an examination of the legislation governing the need for, and supervision of, a tutor for a person under legal incapacity. Cf, Maria Saravinovska v Krste (Chris) Saravinovski [2015] NSWSC 128 at [32]-[33].
2. On a literal reading of the Civil Procedure Act ("CPA") and the Uniform Civil Procedure Rules ("UCPR"), but subject to the stay for which clause 14(5) of Schedule 6 of the Civil and Administrative Tribunal Act provides, prima facie the plaintiff (a protected person within the meaning of the NSW Trustee and Guardian Act by virtue of the financial management order against her estate that is the subject of challenge in the proceedings) cannot commence or carry on the proceedings except by a tutor (UCPR rule 7.14 (1)) who, prima facie, should be the NSW Trustee (UCPR rules 7.15 (3)-(4)). A "protected person" within the meaning of the NSW Trustee and Guardian Act is "a person under legal disability" as defined by CPA section 3(1). For the purpose of the rules governing the appointment and removal of a tutor (UCPR Part 7 Division 4), the expression "person under legal incapacity" also includes "a person who is incapable of managing his or her own affairs": UCPR rule 7.13.
3. CPA section 80 provides express authority for the Court to give directions to a tutor in the conduct of proceedings. UCPR rule 7.18 provides express authority for the Court to appoint and removal a tutor. The Court also has express powers to dispense with requirements of rules of court and to mould procedures to accommodate particular cases.
4. Section 14 of the Civil Procedure Act provides that, "[in] relation to particular civil proceedings (defined in section 3(1) as "proceedings other than criminal proceedings"], the Court may, by order, dispense with any requirement of rules of court if satisfied that it is appropriate to do so in the circumstances of the case."
5. Section 16 of the Civil Procedure Act provides as follows: "16. Court may give directions in circumstances not covered by rules (1) In relation to particular civil proceedings, the court may give directions with respect to any aspect of practice or procedure for which rules of court or practice notes do not provide. (2) Anything done in accordance with such a direction (including the commencing of proceedings and the taking of any step in proceedings) is taken to have been validly done."

Relief attuned to the Nature of the Case

1. Upon an exercise of protective jurisdiction, whatever the form of originating process, the Court must remain mindful of the need to protect a person in need of protection. Depending on the circumstances of the case, a need for judicial vigilance may attend proceedings in which a protected person seeks to be rid of a financial management order or management order no less than proceedings in which such an order is sought or might otherwise need to be made.
2. In proceedings of this character, section 90(1) of the Civil Procedure Act and rule 36.1 of the Uniform Civil Procedure Rules call attention to the Court's powers and duties.
3. Section 90(1) provides that "[the] Court is, at or after trial or otherwise as the nature of the case requires, to give such judgment or make such order as the nature of the case requires.
4. UCPR rule 36.1 provides that "[at] any stage of proceedings, the Court may give such judgment, or make such order, as the nature of the case requires, whether or not a claim for relief extending to that judgment or order is included in any originating process of notice of motion."
5. Upon an exercise of protective jurisdiction (howsoever arising) the Court is bound to remain alive to the nature of the jurisdiction invoked.

The Types of NCAT Decisions Appealable under Clause 14

1. In other legislative contexts, where a distinction is drawn between orders that are "final" or "interlocutory" for the purpose of a determination whether leave to appeal is required as a pre-requisite of appellate challenge to an order, the question whether an order is "interlocutory" is assessed by reference to the degree of finality attaching to the order in the determination of legal rights: Hall v Nominal Defendant (1966) 117 CLR 423 at 439-440 and 443; Licul v Corney (1976) 180 CLR 213 at 220 and 225; and Carr v Finance Corporation of Australia Ltd [No. 1] (1981) 147 CLR 247 at 248 and 253-254.
2. A different approach than that taken in a context in which the contrast is simply between "interlocutory" and "final" orders is called for in clause 14 of Schedule 6 to the Civil and Administrative Tribunal Act, where: 1. there is a contrast, in clause 14 (1), between "an interlocutory decision" and "any other kind of decision"; and 2. clause 14 (2) marries together the concepts of "ancillary" and "interlocutory".
3. The Civil and Administrative Tribunal Act distinguishes between "an interlocutory decision", an "ancillary decision" and "other kinds of decision".
4. Section 5 governs the meaning of the word "decision". Section 4 contains definitions of the expressions "ancillary decision" and "interlocutory decision".
5. With emphasis added, section 5 is in the following terms: "5. Meaning of "decision" (1) In this Act, "decision" includes any of the following: (a) making, suspending, revoking or refusing to make an order or determination, (b) giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or permission, (c) issuing, suspending, revoking or refusing to issue a licence, authority or other instrument, (d) imposing a condition or restriction, (e) making a declaration, demand or requirement, (f) retaining, or refusing to deliver up, an article, (g) doing or refusing to do any other act or thing. (2) For the purposes of this Act: (a) a decision is made under enabling legislation or this Act if it is made in the exercise (or purported exercise) of a function conferred or imposed by or under the enabling legislation or this Act, and (b) a decision that purports to be made under enabling legislation or this Act is taken to be a decision made under the enabling legislation or this Act even if the decision was beyond the power of the decision-maker to make, and (c) a refusal of a decision-maker to make a decision under enabling legislation or this Act because the decision-maker considers that the decision concerned cannot lawfully be made under the enabling legislation or this Act is taken to be a decision made under the enabling legislation or this Act to refuse to make the decision requested, and (d) a failure by a decision-maker to make a decision within the period specified by enabling legislation or this Act for making the decision is taken to be a decision by the decision-maker at the end of the period to refuse to make the decision."

General Principles

1. Subject to qualifications reflective of the Supreme Court's different institutional setting, I adopt as appropriate to a consideration of clause 14(1) of Schedule 6 of the Civil and Administrative Tribunal Act, the "general principles" identified by Wright J, the President of NCAT, in Collins v Urban [2014] NSWCATAP 17 at [84], read in the context of his Honour's prefatory remarks in [82]-[83] and an appreciation that section 80(2) of the Act is in substantially the same terms as clause 14(1).
2. The qualifications on my acceptance of Wright J's statement of general principles are five in number. First, there is a need to take section 4 of the Guardianship Act specifically into account, which need was recognised by NCAT in BPY v BZQ [2015] NSWCATAP 33 at [33]-[34]. Secondly, there is a need to take into account the jurisdiction of the Supreme Court broader than clause 14. Thirdly, in deciding how to proceed in dealing with any challenge to a decision of the Guardianship Division, the Court must be mindful of a need, characteristic of the protective jurisdiction but reinforced by statute, to administer a protected estate without strife, in the simplest and least expensive way; with informality of procedure; and in a manner calculated to facilitate the just, quick and cheap resolution of real issues: Theobald, pages 59-60, 380 and 382; Civil and Administrative Tribunal Act, sections 36 and 38; Civil Procedure Act, sections 56-63. Fourthly, given the broad evaluative or discretionary content of most decisions made on an exercise of protective jurisdiction, guidance about what is or may be an error of principle may, in particular cases, be derived from House v The King (1936) 55 CLR 499 at 504-505. Fifthly, in reviewing an evaluative or discretionary decision of the Guardianship Division, the Court must make due allowance for the possibility that the Division's discretionary powers, in the exercise of protective jurisdiction, are unconfined except by the subject matter, scope and purpose of NCAT's jurisdiction (as has been noted, vis á vis the Court's powers, in paragraph 149 above).
3. In Collins v Urban, Wright J wrote the following: "82. The principles which govern the granting of leave to appeal by the Appeal Panel under s 80(2)(b) should generally be consistent with those which are applied by Courts when considering the question of leave to appeal. These have recently been summarised by the Court of Appeal in BHP Billiton Ltd v Dunning [2013] NSWCA 421. In addition, the Supreme Court has considered the principles which apply when granting leave to appeal to the Court from a decision of the Guardianship Tribunal in a number of cases including SAB v SEM [2013] NSWSC 253. The Guardianship Tribunal has now been absorbed into the Tribunal as the Guardianship Division. As there are alternate rights of appeal from decisions of the Guardianship Division to the Supreme Court or the Appeal Panel (see 12 to 14 of Schedule 6 to the Act) both by leave in the case of interlocutory decisions or on grounds other than a question of law, the same principles should apply in deciding whether to grant leave to appeal to the Court or to the Appeal Panel. 83. Further, the Appeal Panel has addressed the relevant principles to be applied when deciding whether to grant leave to extend an appeal to the merits of the decision (under s 113(2) of Administrative Decisions Tribunal Act 1997 (NSW)) in Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10. These principles may be applied by analogy when considering whether to grant leave to appeal under s 80(2)(b) of the Act. 84. The general principles derived from these cases can be summarised as follows: (1) In order to be granted leave to appeal, the applicant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [19] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; (2) Ordinarily it is appropriate to grant leave to appeal only in matters that involve: (a) issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; or (c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed. BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [20] and the authorities cited there, SAB v SEM [2013] NSWSC 253 at [8] and [9] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; (3) In relation to an application for leave to appeal relating to a question of practice and procedure, the application is to be approached with the restraint applied by an appellate court when reviewing such decisions, especially if the application is made during the course of a hearing: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [21] and the authorities cited there."

Application to this Case

1. In the current proceedings issues of principle, involving questions of public importance, arise for consideration. Bound up with those issues is a concern that the Tribunal's evaluation of the plaintiff's capacity for self-management may have miscarried, in substance, even if the nature of a particular error may not be discernible. The case calls for a general, critical review.
2. On one view of the evidence before the Tribunal the plaintiff might be said to have suffered a "reasonably clear" injustice because, on the face of the Tribunal's transcript for 17 June 2014, she appears to have been not only mentally alert, but also both mentally agile and feisty in manner.
3. At a superficial level at least, on the transcript, her performance (because it appeared to manifest capability of mind) does not sit well with the Tribunal's implicit reliance on Powell J's observations in PY v RJS [1982] 2 NSWLR 700 at 702B-E (modified by express reference to observations of White J in Re D [2012] NSWSC 1006 and Barrett J in P v R [2003] NSWSC 819) in the construction and application of the Guardianship Act, section 25G.
4. In its exposition of the elements of section 25G the Tribunal implicitly focused on Powell J's formulation of the test of whether a person is "incapable of managing his or her own affairs": namely (as the Tribunal expressed it): 1. whether the plaintiff was incapable of dealing, in a reasonably competent fashion, with the ordinary routine affairs of man; and 2. whether that caused a real risk of either: (i) disadvantage in the conduct of her affairs; or (ii) loss or dissipation of such monies or property that she may possess.
5. The Tribunal's exposition of the elements of section 25G made no reference to either the general principles set out in section 4, or the definition of "a person who has a disability" set out in section 3(2) of the Guardianship Act.
6. In the absence of an explicit, statutory definition of the concept of incapacity for self-management, these provisions, coupled with the elements expressly required by section 25G to be considered, are of critical significance in the current case.
7. That is because, by reference to the transcript, the plaintiff "is of advanced age" (section 3(2) (b)); she might arguably be described as "otherwise disabled" (within the meaning of section 3(2)(d)) by reason of her loss of capacity for independent living; and, by virtue of these facts, she might be described as "restricted in one or more major life activities to such an extent that [she] requires supervision or social habitation" (section 3 (2)).

THIS APPEAL : THE FRAMEWORK FOR DECISION

1. Having determined to decide the appeal "by way of a new hearing", the question of substance for the Court is not whether the Tribunal's financial management order should be set aside, but whether a financial management order can, and should, be made by the Court exercising the powers, and acknowledging the duties, of the Tribunal (Supreme Court Act, section 75A(6)) in exercise of the functions of the Tribunal under the Guardianship Act, Part 3A (sections 25D-25M).
2. In determining the appeal the Court is required to make such orders as it considers appropriate in light of its decision on the appeal, and as the nature of the case requires: Supreme Court Act, section 75A(10), Civil Procedure Act, section 90(1); Uniform Civil Procedure Rules, rule 36.1; Civil and Administrative Tribunal Act, Schedule 6 clause 14(4).
3. Although the broader, general protective jurisdiction of the Court is available in this case, if required in the administration of justice, the nature and ambit of the jurisdiction exercised by the Court by reference to clause 14, in context, is such that there is no necessity to invoke any other head of jurisdiction.
4. Accordingly, it is not necessary to exercise the jurisdiction available to the Court under: 1. the inherent, protective jurisdiction conferred on the Court by the Third Charter of Justice, 1823 and related Imperial legislation (JM Bennett, A History of the Supreme Court of NSW (Law Book Co, Sydney, 1974), chapter 7, especially pages 125-127; In Re WM (1903) 3 SR (NSW) 552 at 565; PB v BB [2013] NSWSC 1223 at [40]); 2. the jurisdiction of the Court (as "may be necessary for the administration of justice in New South Wales") under the Supreme Court Act, section 23, sometimes (as in Re C [2012] NSWSC 1097 at [64]-[66], noted in Re W and L (Parameters of Protected Estate Management Orders) [2014] NSWSC 1106 at [74]-[82]) described as a source of the Court's inherent protective jurisdiction; or 3. the powers of the Court under the NSW Trustee and Guardian Act to appoint a protected estate manager (section 41) or to revoke a management order or financial management order (section 86).
5. That said, the jurisdiction exercised by the Court by reference to clause 14 and the Guardianship Act (and the jurisdiction exercised by the Tribunal under the Guardianship Act) is informed by the purposive character of the Court's protective jurisdiction, which provides the template for the legislative scheme for the appointment of financial managers by the Tribunal.

Context : The Legacy of Powell J as the Court's "Protective Judge"

1. The Importance of Legislative Context. This language, centrally focused on a person's "capability" for "management" of "his or her own affairs", can be found in what are, broadly, comparable provisions of the Guardianship Act and the NSW Trustee and Guardian Act.
2. Although the terminology employed in this legislation is broadly similar, the concept of "capability for self-management" might involve subtle differences depending on context.
3. It is necessary to make that point because the work of the Mental Health Review Tribunal, in particular, involves a different focus in the making and revocation of orders for management of estates.
4. There is broad similarity between the work of the Tribunal (under sections 25E, 25G, 25M and 25P of the Guardianship Act) and the Court (under sections 40, 41 and 86 of the NSW Trustee and Guardian Act) in the making and revocation of orders subjecting an estate to management under the NSW Trustee and Guardian Act. That is largely because of the symmetry between section 4 of the Guardianship Act and section 39 of the NSW Trustee and Guardian Act in the articulation of "general principles" governing an exercise of functions under the legislation.
5. The different focus of the Mental Health Review Tribunal manifests itself in its distinctive rationale.
6. The MHRT is constituted by the Mental Health Act 2007 NSW, section 140. It is both guided, and constrained, by various legislative statements of objects to be achieved, principles to be applied and factors to be taken into account, including: 1. in the Mental Health Act, sections 3, 68 and 105, read with section 195; 2. in the Mental Health (Forensic Provisions) Act 1990 NSW, sections 40 and 74; and 3. in the NSW Trustee and Guardian Act, section 39.
7. Implicit in those provisions, and in the legislation that governs the work of the Mental Health Review Tribunal generally, is the foundational idea common to all types of protective jurisdiction, that paramountcy should be afforded to the welfare and interests of a person in need of protection. However, in dealing with people who are mentally ill or mentally disordered and, particularly, with forensic patients, a decision-maker focused on what is in the interests, and for the benefit, of a person in need of protection may need to accommodate a competing need for protection of others or the community generally: A (by his tutor Brett Collins) v Mental Health Review Tribunal (No 4) [2014] NSWSC 31 at [144]-[166].

Revisionism : A Return to Legislative Test, informed by Legislative Purpose

1. With the benefit of full argument, in Re R [2014] NSWSC 1810 at [94], White J declined to follow PY v RJS, noting that the statutory test of incapacity to manage one's affairs (for which section 86 of the NSW Trustee and Guardian Act provides) involves consideration of the subjective circumstances of the individual in question, rather than (as Powell J's test suggests) an objective assessment of a person's ability to deal competently with "ordinary routine affairs of man". His honour wrote (with citations added): "94. My difficulty with the reasoning of Powell J in PY v RJS is that the test propounded by Powell J did not address the terms of the statute itself which speaks of a person being capable or incapable of managing his (or her) affairs, not the ordinary routine affairs of man. I need not repeat what I said in Re D [2012] NSWSC 1006 at [61]. The High Court has recently repeatedly stressed that the text of the statute is both the beginning and finishing point of statutory interpretation. Nonetheless, having regard to the course of authority, I considered that I should follow the test stated by Barrett J in P v R [2003] NSWSC 819 which more closely approximated the words of the statute. I think the "subjective" interpretation is in accordance with s 39 of the NSW Trustee and Guardian Act 2009 that provides that the paramount consideration in the exercise of functions under Ch 4 is the welfare and interests of the person concerned (s 39(a)). It is supported by Lindsay J in PB v BB at [6] and [8] …."
2. The passages from PB v BB [2013] NSWSC 1223 at [6] and [8], extracted in White J's judgment, are as follows: "6. Whether viewed through the lens of s 41 or the antecedent general law, the question whether a person is incapable of managing his or her own affairs focuses attention on the personal circumstances of that person. 8. Of central significance is the functionality of management capacity of the person said to be incapable of managing his or her affairs, not: (a) his or her status as a person who may, or may not, lack "mental capacity" or be "mentally ill"; or (b) particular reasons for an incapacity for self-management."
3. Re R provides a timely warning of a need, commonly experienced, to avoid encumbering the text of legislation with judicial gloss. A problem in itself, the problem becomes greater when a particular expression (such as "incapable of managing his or her affairs" or some variation thereof) is not read afresh in light of current legislation as a whole.

The Time Perspective(s) of a Finding of Incapacity for Self-Management

1. The evaluative character of the assessments to be made by reference to the several paragraphs of section 25G was dealt with by Powell J, at least in part, within the framework of an assessment of incapacity to self-management. As Hallen AsJ in EB & Ors v Guardianship Tribunal & Ors [2011] NSWSC 767 at [136] paraphrased Powell J's determination in McD v McD [1983] 3 NSWLR 81 at 86C-D: "The relevant time for considering whether a person is incapable of managing her, or his, affairs is not merely the day of the hearing, but the reasonably foreseeable future"
2. As a statement of principle, I accept that proposition: cf, CJ v AKJ [2015] NSWSC 498 at 27. However, it is implicit in the terms of section 25G, and other manifestations of the protective jurisdiction, rather than explicit. Any decision to make, or to revoke, a financial management order, by its very nature, requires a backward glance designed to elucidate the present and the future; a firm grasp of present realities; and an element of anticipation of future problems and solutions. Management of the estate of a person in need of protection involves an exercise in risk management.

The Text : The Guardianship Act, Sections 3(2), 4 and 25G

1. The Guardianship Act (like the NSW Trustee and Guardian Act and, before it, the Protected Estates Act) is both beneficial and protective, such that it should be construed so as to afford the "fullest relief which the fair meaning of its language will allow", taking into account the history and broader context of the protective jurisdiction as a whole: Protective Commissioner v D (2004) 60 NSWLR 513 at 521-522 [48]-[55], 532 [104], 540 [149]-[150], 543 [167] and 544-545 [173].
2. Although the legislation is informed by history and experience of the protective jurisdiction generally, particular importance attaches to respect for the text. Social legislation of this character is intended to be widely understood throughout the community, by lay people as well as professionals, across a spectrum of callings. It is not written in language designed for lawyers, doctors or social workers alone. It must be comprehensible to individuals, and families, affected by its operation.
3. References to a "person's capability to manage his or her own affairs", and variants of that expression, are not expressly defined in the Guardianship Act or the NSW Trustee and Guardian Act, with which the Guardianship Act must be read to understand the implications of a financial management order being made.
4. References here to a person's "own affairs" should be read as references to the "affairs" of the particular person whose "capability" requires assessment: Re R [2014] NSWSC 1810 at [93]-[94]; CJ v AKJ [2015] NSWSC 498 at 27. This conforms to the language of the text evidenced by the word "own" in section 25G. It reflects the orientation of the "general principles" in section 4 towards each person as an individual. It accords with the Equity tradition, with which the protective jurisdiction has long been aligned, of insisting on an examination of particular facts ("all the circumstances") in individual cases.
5. Greater difficulty, both in the abstract and in practice, may attach to the meaning and operation of the word "capability" and its derivatives. That difficulty is not entirely avoided by resort to synonyms such as "able" or "fitness".
6. At the highest level of abstraction, the expression "(in)capable of managing his or her own affairs" may best be described by reference to the purpose for which the protective jurisdiction exists. A person is "incapable of managing his or her own affairs" if "not able to take care" of himself or herself: Marion's Case (1992) 175 CLR 218 at 258, citing Lord Eldon in Wellesley v Duke of Beaufort (1827) 2 Russ 1 at 20; 38 ER 236 at 243. This language and the idea it embodies inform, and are reflected, in the several paragraphs of section 25G, reinforced by sections 3(2) and 4, of the Guardianship Act.

Discretion, Necessity, Best Interests, Benefit and Utility : Guardianship Act, sections 25E and 25G, read with sections 3(2) and 4

1. A finding of incapacity for self-management is a necessary, but not a sufficient, condition for the making of a financial management order under the Guardianship Act, section 25E.
2. The word "may", twice appearing in section 25E, indicates that the powers conferred by the section may be exercised or not, at the discretion of the Tribunal: Interpretation Act 1987 NSW, section 9. It does not mean "must": Ward v Williams (1955) 92 CLR 496 at 505-506; Finance Facilities Pty Limited v Federal Commissioner of Taxation (1971) 127 CLR 106 at 134-135 and 138-139.
3. Nevertheless, the discretionary powers conferred on the Tribunal are not at large. Generally, as earlier noted, they are confined by the subject matter, scope and purpose of the protective jurisdiction. In particular, they are confined by a need to consider whether there is a need for a protected estate manager (section 25G(b)) and whether it is in the subject person's best interests that a financial management order be made (section 25G(c), read with sections 3(2) and 4 of the Guardianship Act).
4. Confirmation that a finding of incapacity for self-management is not a sufficient cause for the making of a financial management order can be found in section 25P(2)(b) of the Guardianship Act. That provision contemplates that the Tribunal may revoke a financial management order if it considers that it is in the best interests of a protected person that a revocation order be made, even though the Tribunal may not be satisfied that the protected person is capable of managing his or her affairs.
5. One illustration of a case where it may be appropriate to dispense with a protected estate manager despite a finding of incapacity for self-management may be, by analogy with the Court's inherent jurisdiction, where there is no practical utility in burdening a person or his or her estate with the administrative infrastructure necessarily involved in protected estate management: Re W and L (Parameters of protected estate management orders) [2014] NSWSC 1106 at [87]-[89] and [95]. Another, drawing specifically upon the liberal intent of the general principles set out in section 4 of the Guardianship Act, may be a case in which the Tribunal decides to take a risk in allowing a person in need of protection an opportunity to enjoy freedom of decision, freedom of action and the possibility of normal life living in community with an empathetic family: cf, M v M [1981] 2 NSWLR 334 at 336A-B, 336C-D and 337F-338D; CJ v AKJ [2015] NSWSC 498 at [50]-[51] and [54]-[58].

Introduction

1. The current case can be appropriately addressed, and determined, within the parameters of the Guardianship Act, with special reference to sections 3(2), 4, 25E, 25G and 25M. It is not necessary, specifically, to invoke the assistance of the Court's inherent jurisdiction.
2. In moving towards an assessment of whether the plaintiff is, or is not, "capable of managing her affairs" within the meaning of section 25G(a) I here have specific regard to the legislative context in which that expression appears.

(1) The views of the plaintiff, personally

1. I pay regard to each of the general principles for which section 4 provides, noting especially (as contemplated by section 4(d)) the plaintiff's strong antipathy to her estate being managed by a protected estate manager of any description.
2. I acknowledge the importance of the views she has expressed and (as illustrated by her counsel's specific invocation of paragraphs (b), (c), (d) and (f) of section 4) the equally important value to be attributed to her personal autonomy and dignity.
3. Although the protective jurisdiction is, by nature, not a "consent jurisdiction" (M v M [2013] NSWSC 1495 at 50), the welfare principle dictates that these factors have high priority.

(2) Is the plaintiff "disabled" within the meaning of the Guardianship Act, s 3(2)(a)-(d)?

1. At the age of 92 years; frail of body, with a substantial hearing deficit; vulnerable to exploitation; lacking insight into her vulnerability; and physically unable to live alone or independently, the plaintiff is "a person… who is … physically, sensorily disabled, and of advanced age… or who is otherwise disabled" within the meaning of sections 3(2)(a), 3(2)(b) and 3(2)(d).

(3) Is the plaintiff, by virtue of a disability, restricted in one or more major life activities to such an extent that she requires supervision or social habilitation within the meaning of section 3(2)?

1. The plaintiff is by virtue of her disability restricted in one or more life activities. Physically, she is incapable of living alone or independently. She was unable to organise her own admission to the aged care facility in which she currently resides. She was dependent on her friend KM to do that for her. She required assistance (as it happens, his) to travel to Sydney for her appearance before the Court. In my examination of her, she appeared not to appreciate the distinction (so far as it might bear upon the availability of resources to her) between a testamentary gift to KM and an immediate, commercial concession to him in the same amount. She seemed to imagine that she could, here and now, give away property or property's worth, and still be able to dispose of it by will. Despite her claim to business acumen, she appeared to me to have difficulty coming to terms with the detail of a relatively simple tax invoice presented to the Court by her solicitor, accounting for costs and disbursements he deducted (apparently without reference to section 71(1) of the NSW Trustee and Guardian Act, but relying upon the plaintiff's acquiescence) from the $25,000 paid into his trust account by KM by way of a refund of moneys earlier paid to KM on the plaintiff's account.
2. That the plaintiff's disability is of such a degree that, by reason of her disability, she requires "supervision" and "social habilitation" within the meaning of section 3(2) is confirmed, to my observation, by: (a) her apparent failure to appreciate the distinction between a testamentary gift to KM and an immediate, commercial concession to him in the same amount; (b) the difficulty she experienced in reading, and comprehending, her solicitor's tax invoice; (c) her apparent dependency upon KM, her solicitor and her doctor to assist her with management of her affairs should management of her estate not be committed to the NSW Trustee; and (d) an apparent inability on her part to appreciate that her son (the second defendant) might, objectively, have had a reasonable foundation for his concern that she had agreed in principle to sell her residence to KM at a substantial undervalue.
3. In assessing the plaintiff's current attitude towards her son, allowance must be made for her angst at being subjected to proceedings in NCAT on his application, and her suspicion that he is motivated solely by a desire to grasp her property for himself. However, even allowing full measure for these factors as not unreasonable in themselves, the plaintiff is unable to see anything in him except the diabolical, and nothing of objective grounds for concern about her dealings with KM.

(4) Despite any need the plaintiff may have for supervision or social habilitation, is she reasonably able (within the meaning of sections 4(a)-(c), 4(f), 25G(b) and 25G(c)) to determine what is in her best interests, and to protect her own welfare and interests, in a normal, self-reliant way without the intervention of a protected estate manager?

1. Having had the benefit of an examination of the plaintiff, I fear that she is not reasonably able to determine what is in her best interests, and to protect her own welfare and interests, in a normal, self-reliant way without the intervention of a protected estate manager.
2. That is because: (a) she appeared to me not to appreciate the distinction, so far as it might bear upon the availability of resources to her, between a testamentary gift to KM and an immediate, commercial concession to him in the same amount; (b) she appeared to me to be unable to grasp the detail of her solicitor's relatively simple tax invoice; (c) she appeared, emphatically, incapable of appreciating that her son, the second defendant, might reasonably have had concerns about her welfare and best interests in her dealings with KM; and (d) in her inability, or unwillingness, to disclose her true age to the Court and to her own lawyers, she displayed either ignorance about a fundamental fact or a complete lack of judgement about her duty of candour in dealing with the Court and about where her best interests lie.

(5) Despite any need the plaintiff may have for supervision or social habilitation, is she in need of protection from neglect, abuse or exploitation (having regard, particular, to sections 4(a), 4(g), 25G(b) and 25G(c))?

1. The plaintiff is in need of protection from neglect, abuse or exploitation because: (a) she is vulnerable to exploitation, but she lacks insight into her vulnerability, and she is over confident about her ability to manage their own affairs; (b) although she is capable of manifesting acute judgment about particular matters, her ability to do so is not consistent over time; (c) she has demonstrated, in her dealings with KM, an inability to appreciate the significance, to her let alone her family, of conferring upon him a substantial commercial advantage which would deplete the property available to her should she require it; and (d) after the sale of her residence, it is likely that (in addition to an investment unit) she will have a liquid fund of between $125,000 to $150,000 or thereabouts which she says she would simply leave in her account to buy "things from the chemist, clothes or just ordinary things", apparently without a clear appreciation of the need to invest or otherwise protect such a large amount, more than she could use in day-to-day living. It can, and should, be available for everyday requirements; but, so far as practicable, it should be preserved as a fund to meet unforeseen contingencies, not lightly given away.
2. The plaintiff's apparent lack of appreciation of a need to safeguard this fund is consistent with her earlier, cavalier attitude to conferral of a substantial benefit on KM by her proposal (abandoned only by the intervention of protective proceedings) to sell her residence to him at a $100,000 discount on market value. Had she effected that sale, her possession of a contingency fund would, to that substantial extent, have been diminished.
3. (6) What are the plaintiff's "affairs" to be managed (section 25G)?
4. Assets. In broad terms, the plaintiff's gross estate comprises: 1. her former residence, valued between $360,000 and $380,000, but say $370,000. 2. an investment unit, valued at about $275,000. 3. funds held in trust by the NSW Trustee, approximately $11,500. 4. personal bank account credit balances, approximately $3,200.
5. From about $25,000 held in trust by the solicitor for the plaintiff, as a refund of moneys by KM, the solicitor (after deducting costs and disbursements associated with his conduct of these proceedings on behalf of the plaintiff) remitted to the NSW Trustee the balance of approximately $11,470.

(7) All things considered, is the plaintiff a person incapable of managing her own affairs within the meaning of section 25G?

1. In my judgement, the plaintiff is incapable of managing her own affairs within the meaning of section 25G having regard, particularly, to: (a) the course of events in the plaintiff's dealings with KM and her continuing, social dependence upon him; (b) her inability to appreciate that her son might reasonably have had concerns about her welfare and best interests in dealing with KM; (c) her inability to appreciate the distinction, so far as it might bear upon the availability of resources to her, between a testamentary gift to KM and an immediate, commercial concession to him in the same amount; (d) her inability to grasp the detail of her solicitor's tax invoice; (e) her inability, or unwillingness, to disclose her true age to the Court and to her own lawyers when candour and accuracy were both called for; and (f) a risk that, if not supervised in management of a large, liquid capital asset, she might part company with it, to KM for example, to the detriment of herself and her family, particularly her disabled son (presently under adequate care, as she reported to the Court, but at an age when his needs may become unpredictably greater), in part out of spite towards her able bodied son for his challenge of her capacity for self- management.
2. In making a finding that the plaintiff is incapable of managing her own affairs, I do not overlook contrary expressions of opinion by the plaintiff's solicitor (in an affidavit sworn 27 February 2015) and her doctor (in a single page report dated 27 February 2015, marked Exhibit P2). Having had an opportunity to examine the plaintiff personally, and the factual matrix of her life, I am confident in differing from them. The plaintiff managed to conceal her true age from her solicitor, despite his close attention to that question, and from her doctor. Neither the solicitor nor the doctor appears to have examined with a sufficiently critical eye the course of her dealings with KM, the prudence of those dealings or the risk that she might be open to exploitation.
3. Nor do I overlook the results of a "cognitive impairment test" administered by the plaintiff's aged care facility, in about December 2013, recording that she had "no/minimal impairment". Those results must be taken into account upon an assessment of the plaintiff's capacity for self-management, but they are not determinative. Nor do they outweigh the factors that have led me to conclude that the plaintiff is incapable of managing her own affairs.

(8) Is there a need for a financial manager (section 25G(b))?

1. In my assessment there is a need for another person to manage the plaintiff's affairs, on her behalf, within the meaning of section 25G(b).
2. In reaching that conclusion I put to one side her need (in common with many in the community) for professional assistance in effecting a sale of land or managing a rental property. That she needs that assistance does not, of itself, carry the consequence that she has a "need" of the type described in section 25G(b).
3. I also accept, for the purpose of the current judgment, that it is within the plaintiff's capabilities to manage her pension income without day-to-day supervision, provided, at least, that regular arrangements are in place to ensure timely payment of recurrent fees due to her aged care facility.
4. The plaintiff's need for another person to manage her affairs focuses, principally, upon the risk that, without supervision, she cannot be relied upon not to give away capital assets (including, prospectively, the balance of proceeds of sale of her residence) without due regard to her welfare and interests. Incidentally, the fact that (as I have found) she has this need is reinforced by her need to effect a sale of her residence and to have her investment property duly managed.
5. A finding that there is a need for another person to manage the plaintiff's affairs, on her behalf, is not inconsistent with steps being taken to ensure that the plaintiff's freedom of decision and freedom of action are restricted as little as possible in management of her estate: Guardianship Act, section 4(b). As a matter of jurisdiction, section 25E(2) of the Act confirms that a specified part of the plaintiff's estate could be excluded from any financial management order made. By virtue of section 71 of the NSW Trustee and Guardian Act, a protected estate manager could, by instrument in writing, authorise the plaintiff to deal with a specified part of her estate notwithstanding that (by the virtue of section 71(1) of the Act) the power of a protected person to deal with his or her estate is suspended in respect of so much of the estate as is subject to management under the Act. Subject to the overriding jurisdiction of the Court (under the Act and in its inherent jurisdiction) to give directions relating to management of a protected estate, the NSW Trustee has broad and flexible powers under the Act to facilitate a beneficial and cost-effective form of management.

(9) Is it in the plaintiff's best interests that a financial management order be made (section 25G(c))?

1. In my assessment, it is in the plaintiff's best interests that a financial management order be made so as to assist her in management functions she is unable to perform and to protect her, against herself, in the orderly management of her capital, including her investment property and, in due course, the proceeds of sale of her residence.
2. Provided she is protected against rash conduct in dispossession of her capital, I presently see no difficulty in: (a) her being fully consulted, personally, about any decisions that need to be made about the realisation of assets or the deployment of capital; or (b) her having free management of her pension, and a small but liberal contingency fund, subject only to secure arrangements being made for timely payment of her recurrent aged care facility fees.
3. I note, in passing, that section 72 of the NSW Trustee and Guardian Act imposes on the NSW Trustee a statutory obligation to proceed in a consultative way. The importance of such an obligation was emphasised in Holt v Protective Commissioner (1993) 31 NSWLR 227 at 239G-241C.

(10) Should a specified part of the estate of the plaintiff be excluded from any financial management order (section 25E(2))?

1. Although section 25E(2) of the Guardianship Act (an analogue of section 40 of the NSW Trustee and Guardian Act) permits a specified part of an estate of a protected person to be excluded from a financial management order, the power to make a partial management order needs to be approached with caution, lest due management of a protected estate be prejudiced: Re Application for partial management orders [2014] NSWSC 1468.
2. I am sympathetic to the plaintiff being allowed to manage her pension income, and a small contingency fund, but I am not satisfied that a partial management order (excluding that part of her estate to be managed by the plaintiff personally) is either necessary or appropriate, at least as matters presently stand. Far greater flexibility, coupled with administrative oversight, is likely to be available through leaving to the NSW Trustee an opportunity to exercise the powers it has, such as those under section 71 of the NSW Trustee and Guardian Act, to allow the plaintiff freedom of decision and action, consistent with maintenance of her estate, including payment of moneys due to her aged care facility.

(11) A final check against the welfare principle (section 4(a))

1. Touching base with the welfare principle (recognised by Marion's Case (1992) 175 CLR 218 at 258 and reflected, particularly, in section 4(a) of the Guardianship Act), and measuring the Court's orders against what is in the interests, and for the benefit, of the plaintiff (as required by Holt v Protective Commissioner (1993) 31 NSWLR 227 at 283D-F and 241G-242A and GAU v GAV [2014] QCA 308 at [48]), I am satisfied that: 1. the plaintiff is not capable of managing her own affairs (Guardianship Act, section 25G(a)); 2. there is a need for another person to manage the plaintiff's affairs on her behalf (Guardianship Act, section 25G(b)); 3. it is in the plaintiff's best interests that a financial management order be made (Guardianship Act, section (25G(c)); 4. the plaintiff's estate should be subject to management under the NSW Trustee and Guardian Act (Guardianship Act section 25E(1)); 5. no part of the plaintiff's estate should be excluded from the financial management order (Guardianship Act, section 25E(2)); 6. in the absence of any other person suitable for appointment as manager of the plaintiff's estate, management of the estate should be committed to the NSW Trustee (Guardianship Act, section 25M); and 7. although no formal directions should, at this stage, be given to the NSW Trustee so as to bind the course it may take in management of the plaintiff's estate, it should be encouraged to consider whether (subject to secure arrangements being made for the timely payment of the plaintiff's aged care facility fees) she can freely manage her pension and a small, but liberal, contingency fund on a day-to-day basis.

CONCLUSION

1. These findings carry the consequence that (in conformity with clause 14(4) of Schedule 6 to the Civil and Administrative Tribunal Act, the orders made by the Guardianship Division of NCAT on 17 June 2014 (committing management of the estate of the plaintiff to the NSW Trustee as her financial manager) should be confirmed by orders of this Court.
2. Accordingly, I make the following orders: 1. ORDER that any requirement, under the Uniform Civil Procedure Rules 2005 NSW or otherwise, for the plaintiff to have conducted these proceedings by a tutor be dispensed with. 2. ORDER that the orders made by the Guardianship Division of the NSW Civil and Administrative Tribunal on 17 June 2014 (committing management of the estate of the plaintiff to the NSW Trustee as her financial manager) be confirmed. 3. DECLARE that the plaintiff is not capable of managing her own affairs. 4. ORDER that subjection of the estate of the plaintiff to management under the NSW Trustee and Guardian Act 2009 NSW be confirmed. 5. ORDER that committal of management of the estate of the plaintiff to the NSW Trustee be confirmed. 6. DECLARE that the instrument dated 20 December 2013, entitled "Enduring Power of Attorney", executed by the plaintiff in favour of [KM], is of no force or effect.
3. Subject to allowing the parties an opportunity to be heard as to costs, I am inclined to make no orders as to costs, and not to require the solicitor for the plaintiff to account for the costs and disbursements he deducted from trust funds remitted to the NSW Trustee pursuant to an order made by the Court on 9 March 2015.
4. Prima facie, having regard to the modest size of the plaintiff's estate, as well as the course of the proceedings, the proper order as to costs seems to me to be that no costs orders be made: CCR v PS (No 2) (1986) 6 NSWLR 622 at 640; CAC v Secretary, Department of Family and Community Services [2014] NSWSC 1855 at [129]-[134]; CAC v Secretary, Department of Family and Community Services [2015] NSWSC 344 at [11]-[15].
5. In expressing that view, I am mindful that the outcome of the proceedings has been substantially that for which the plaintiff's son (the second defendant) has contended; and equally mindful that, in the protective jurisdiction, costs do not routinely follow the event.

Amendments 19 May 2015 - Paragraph 281 last line, section 25M amended to section 25G. 02 June 2015 - Paragraph 295 amended "advanced stage" to "advanced age". 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: 02 June 2015