PB v BB

FACTUAL CONTEXT 17The plaintiff is the mother, and principal carer, of the defendant. In addition to themselves, their family unit comprises the father, and a sibling, of the defendant. They all live together in France. 18The defendant (an adult) was severely injured in a motor vehicle accident, in Australia, in December 2008. He suffered brain damage which has left him, beyond reasonable doubt, disadvantaged in personal management of his affairs. 19In proceedings in the District Court of New South Wales his mother acted as his tutor on his claim for compensation arising out of the accident. 20Those proceedings were settled. By a judgment entered on or about 7 December 2012, the defendant was awarded approximately $1,000,000. 21Money was paid into court in satisfaction of the judgment debt. 22That money, subject to adjustments not presently material, remains held by the District Court pending the determination of these proceedings in the Supreme Court. 23The funds in court represent the defendant's principal asset. He has no other property of substance. 24He is unable to work. He receives social security benefits from the French state, as well as similar payments from the Lifetime Care and Support Scheme administered under the Motor Accident (Lifetime Care and Support) Act 2006 NSW. 25He has no source of income other than social security benefits and such interest as may be earned on the funds presently in court. 26The plaintiff, ostensibly with the consent of the defendant, applies to this Court for orders to the following effect: (a)a declaration, pursuant to s 41(1)(a) of the NSW Trustee and Guardian Act 2009, that the defendant is incapable of managing his affairs. (b)an order, also pursuant to s 41(1)(a) of the Act, that the estate of the defendant be subject to management under the NSW Trustee and Guardian Act. (c)an order, under s 41(1)(b) of the Act, that the plaintiff, a named French lawyer and a named French financial manager be appointed as joint managers ("the managers") of the estate of the defendant. (d)orders designed to permit the funds presently in court to be paid, out of the District Court, to the managers with a view to their transmission to France. (e)on condition that the managers satisfy the requirements of French law governing the management of property of persons in need of protection (pursuant to which law the managers will administer the defendant's estate as a "management committee"), an order authorising the managers, upon the payment of funds out of court, to transfer the funds to a bank account (in the nature of what, in New South Wales, would be recognised as a solicitor's trust account), from which they will be transferred to another account to be administered by the managers, as a committee, on behalf of the defendant.

THE NATURE OF THE COURT'S JURISDICTION 27In this area of the law the nature of the broad jurisdiction conferred on the Court by legislation such as the NSW Trustee and Guardian Act 2009 NSW, and the manner of its exercise, is generally informed by the general law: usually defined by reference to "the inherent jurisdiction" of the Court: see, eg, Re M and the Protected Estates Act 1983 [2003] NSWSC 344 at [7]; In Re Knight (a Lunatic) [1898] 1 Ch 257. 28Historically, the legislation enacted from time to time has provided a regulatory framework, and an administrative infrastructure, for the beneficial exercise of a broad jurisdiction, over the person and property of individuals in need of protection, including that attributed to the inherent jurisdiction. The nature of the problems addressed by the Court, whatever be the source of its jurisdiction, tends to govern the purpose and operation of the jurisdiction. 29The Court's inherent jurisdiction over the property and person of a protected person is "extremely wide", to adapt the description of English law found in M Davies, AS Bell and PLG Brereton (eds), Nygh's Conflict of Laws in Australia, (Lexis Nexis Australia, 8th ed, 2010) at para [31.1]. That jurisdiction is derived from English law: JM Bennett, A History of the Supreme Court of New South Wales, (Law Book Co, Sydney, 1974), ch 7; Philip Powell, The Origins and Development of the Protective Jurisdiction of the Supreme Court of New South Wales (Forbes Society, Sydney, 2004); BE Porter and MB Robinson, Protected Persons and their Property in NSW (Law Book Co, Sydney, 1987), pp 37-39. 30It extends at least as far as making orders respecting the estate of a person in need of protection where either the person, or his or her property, is within the territorial jurisdiction of the Court: MS v ES [1983] 3 NSWLR 199 at 200G-202A and 202G-203B; Re FN and the Mental Health Act 1958 [1984] 3 NSWLR 502 at 523G-524B. 31Upon an exercise of inherent jurisdiction, the Court can make an order authorising the transfer of a protected person's estate (in whole or part) outside the territorial jurisdiction of the Court provided, and to the extent, that the Court is satisfied that it is in the best interests of the protected person that the particular order be made: HS Theobald, The Law Relating to Lunacy (Stevens and Sons, London, 1924), pp 19-20, 380, 472-473 and 477. 32The fact that a manager of a protected person's estate is appointed in New South Wales does not mean that a fund under management must remain within the State; if demonstrably secure arrangements are in place for protection of the fund in another territorial jurisdiction, it may be appropriate to authorise the manager to transfer the fund there: MS v ES [1983] 3 NSWLR 199 at 203E-F, citing Re Brown (a Lunatic) [1895] 2 Ch 666; Re Knight (a Lunatic) [1898] 1 Ch 257 and, as a contrasting case, Re Barlow's Will (1887) 36 Ch D 287. 33In Re FN [1984] 3 NSWLR 520 at 524B Powell J interpreted English case law as establishing a principle that, in a case such as that presently before the Court, it will be appropriate to order the transfer to the foreign jurisdiction of at least some of the income of the fund in New South Wales if it can be shown that the property is required for the maintenance or other purposes of the protected person, but otherwise it would not be appropriate to do so. That formulation of the law was applied by Young CJ in Eq in Re M and the Protected Estates Act 1983 [2003] NSWSC 344 at [10]. 34To the extent that it is no more than a particular application of the general principle that the Court will exercise its protective jurisdiction only if, and to the extent, it is in the protected person's interests to do so, I agree with this formulation of the law. 35To the extent that it might be construed as a limitation on the Court's jurisdiction, rather than a rule of practice governed by an appeal to the interests of a protected person, I decline to embrace it. 36A comparison between what Powell J wrote in Re FN [1984] 3 NSWLR 520 at 524B and what he wrote in MS v ES [1983] 3 NSWLR 199 at 203E-F suggests that his Honour's statement of principle in Re FN was intended to operate as a principle of management practice rather than as an inflexible rule of law. 37An illustration that that must be so is found in In Re JLS De Larragoiti (a person of unsound mind) [1907] 2 Ch 14 at 18-19, one of the cases cited by his Honour in Re FN. There the English Court of Appeal departed from a rule of practice stated in terms similar to those articulated by his Honour in Re FN. It ordered that property of a lunatic resident in France be transferred to France although not required for his maintenance. 38The Court's protective jurisdiction, if and when duly engaged, is generally limited only by the purpose it serves (namely, protection of the person and property of a person in need of protection) and, whether stated in terms of jurisdiction or discretion, considerations of utility: Theobald, The Law Relating to Lunacy (1924), pp 362-363, 380 and 382; cf, In re Clarke [1898] 1 Ch 336 at 340-342. 39That a person incapable of managing his or her affairs can, and should, be made the subject of the Court's protective jurisdiction is not a proposition dependent upon the legislation expressly invoked in these proceedings or the Protected Estates Act 1983 NSW, which preceded it; except to the extent that the 1983 Act swept away what Powell J perceived to be legislative constraints on the inherent jurisdiction of the Court in relation to the management of property. 40The general jurisdiction to protect a person incapable of managing his or her affairs was recognised in a series of cases that coincided with the formative period of the New South Wales legal system, culminating in proclamation of the Third Charter of Justice (Letters Patent of 13 October 1823 issued pursuant to the "New South Wales Act" of 1823, 4 Geo. IV, c 96), which conferred foundational jurisdiction on this Court, and the Australian Courts Act 1828 (9 Geo. IV c83), which prescribed the date for the reception of English law in New South Wales. 41In a treatment of the topic apparently informed by Theobald (in The Law Relating to Lunacy, 1924) at p 5) Powell J tells us, in MS v ES [1983] 3 NSWLR 199 at 202C-G and CCR v PS (No 2) (1986) 6 NSWLR 622 at 634G et seq, that Ridgeway v Darwin (1802) 8 Ves. 65; 32 ER 275; Ex parte Cranmer (1806) 12 Ves. 445; 33 ER 168 at 170-171; and In re Holmes (1827) 4 Russ 182; 38 ER 774 represent English law at the time of the establishment of the Supreme Court of NSW and the reception of English law in New South Wales. 42Reference might also be made to Sherwood v Sanderson (1815) 19 Ves 280; 34 ER 521 where Lord Eldon explained the difference, in English jurisprudence, between the jurisdiction exercised (usually) by the Lord Chancellor over those of unsound mind and the jurisdiction exercised by him as a judge of the Court of Chancery. That distinction is, principally, of historical interest in these proceedings because this Court is the repository of both types of jurisdiction. 43The fact that, at p 295, Theobald had reservations about the authority of Lord Eldon's line of cases in the English legal system, as subsequently developed by legislation, is not to the point for an Australian lawyer, particularly following enactment of the Australia Acts 1986 (Imp/Cth). 44The impact of the cases identified by Theobald is sometimes obscured by a number of factors. 45First, they proceed via discussion of now obsolete procedural forms that reflect the assignment of responsibility for decision-making between juries and judges in old English procedure. 46Under the influence of Lord Coke through his report of Beverley's Case (1603) 4 Co Rep 123b; 76 ER 118 at 1122, and the form of the two principal Writs of Commission issued by Chancery for a Common Law trial by jury of the question whether a person was of unsound mind (the writ de idiota inquirendo and the writ de lunatico inquirendo), English law tended to confine the concept of unsoundness of mind to a person accorded the status of an "idiot" (a "natural fool", lacking capacity from birth) or that of a "lunatic" (a person once of sound mind, but not so at the time of the jury's verdict): Powell, The Origins and Development of the Protective Jurisdiction of the Supreme Court of New South Wales (2004), pp 3-6; Sir William Blackstone, Commentaries on the Laws of England (9th "received" ed, 1783), Volume 1, pp 303-306; Sir William Holdsworth, A History of English Law, Volume 1 (7th ed revised, 1956), pp 473-476. 47Lord Eldon, in Ridgeway v Darwin (1802) 32 ER 275 at 276, broke that mould by taking action to protect a person "unable to act with any proper and provident management, liable to be robbed by anyone; under that imbecility of mind, not strictly insanity, but as to the actual mischief calling for as much protection as actual insanity." 48He had earlier accommodated such a case in the concept of a "Commission, not of lunacy, but in the nature of a Writ de lunatico inquirendo; in which, it must be remembered, it is not necessary to establish lunacy; but it is sufficient, that the party is incapable of managing his own affairs": Gibson v Jeyes (1801) 6 Ves 267; 31 ER 1044 at 1047; 6 Ves. Jun. Supp 594; 34 ER 936. 49Secondly, the breadth of the language deployed by Lord Eldon in Ridgway v Ridgway and its scope for adaptation to a variety of circumstances were (first in England, then in New South Wales, and thereafter in New South Wales until enactment of the Protected Estates Act 1983) constrained by legislation that was interpreted in some quarters as having qualified the primary concept of "a person incapable of managing his or her affairs" by requiring any lack of capacity to be attributable to a particular reason (eg, "disease" or "age"). 50Thirdly, that legislation, until enactment of the Protected Estates Act 1983 in New South Wales, focussed on the attribution of a "status" to a person (said to be "mentally ill") instead of upon the functional question whether he or she was capable of managing his or her affairs. 51That perspective was reinforced by institutional arrangements for dealing with the mentally ill that carried with them a need to preserve the liberty of somebody incapable of managing his or her property, but not necessarily in need of protective institutionalisation. 52Fourthly, some judges, in their exposition of the law, have clothed their judgments in technical language (sometimes "legal", sometimes "medical") that may, in substance, reflect no more (or less) than an ongoing concern to ensure that the protection afforded to the person and property of every person includes protection of his or her civil liberties against an unwarranted exercise of protective jurisdiction. 53The concept of "incapacity" manifests subtle variations depending on context (as recognised in Gibbons v Wright (1954) 91 CLR 423 at 437-438 upon a consideration of the validity of an inter vivos transaction in civil proceedings) and, at times, the law relating to management of the property of a person in need of protection has been articulated, not to advantage, in terms better adapted to other areas of the law, such as the criminal law. 54By its use of the expression "the person is incapable of managing his or her affairs" and addressing such a person's problem of self-management as a discrete topic, with provision of an administrative structure that has a declaration of management incapability at its centre, the current legislation (focussing upon s 41 of the NSW Trustee and Guardian Act 2009 NSW) draws strength, and flexibility, from the line of cases that commences with the judgment of Lord Eldon in Ridgeway v Darwin. 55Fifthly, not uncommonly (as appears in RH v CAH [1984] 1 NSWLR 694 at 706D-707B) the true import of a judge's reasons for judgment published in this area of the law needs to be tested against the orders in fact made consequent upon the judgment. Confronted with a person in need of protection judges, generally, have allowed themselves to be ruled, not by their heads alone, but also by their hearts. The prevailing ethos appears always to have been that the practice of courts, upon an exercise of protective jurisdiction, is (to quote Theobald, The Law Relating to Lunacy (1924), at p 382) "directed to administration without strife in the simplest and least expensive way." 56There is no absolute entitlement in a protected person, or anybody else, for an order of the nature sought to be made in these proceedings. It is an order which lies within the discretion of the Court: In Re Knight (a Lunatic) [1898] 1 Ch 257 at 260-261. 57Insofar as legislation has been enacted as overlaying the inherent jurisdiction of the Court, the Court's statutory jurisdiction has generally been construed as operating along similar lines: Re M and the Protected Estates Act 1983 [2003] NSWSC 344 at [7]. 58In MS v ES [1983] 3 NSWLR 199 at 203B Powell J said, in relation to the inherent jurisdiction, that "[the] fact that this Court has jurisdiction in the matter does not ... mean that it will inevitably exercise it: the Court will exercise its jurisdiction only if it is in [the protected person's] interests that it do so." His Honour applied a more general principle in RH v CAH [1984] 1NSWLR 694 at 706G: "... the court will not normally exercise its jurisdiction [over the person or estate of a person in need of protection] unless it is at least desirable, if not necessary, in the interests of [the person in need of protection] to do so." 59That statement of principle translates directly to an exercise of jurisdiction under chapter 4 of the NSW Trustee and Guardian Act 2009 by reason of s39 of the Act. 60That section is in the following terms: "39 General principles applicable to Chapter It is the duty of everyone exercising functions under this Chapter with respect to protected persons or patients 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." 61A case (such as that presently before the Court) of a protected person who is domiciled, not merely resident, overseas, and who has no present or prospective ongoing connection of substance with Australia, might be thought, prima facie, to be a candidate for an order permitting the whole of his or her estate to be transferred to the jurisdiction of domicile. 62Nevertheless, a factor which lies at the heart of a determination whether such an order should be made is the existence, nature and perceived effectiveness of a regime for protection of the interests of the protected person in the foreign jurisdiction to which property is to be removed. 63The Court can, and perhaps ordinarily should, condition its grant of orders of the type here sought on: (a) the provision of personal undertakings to the Court from a person, or persons, acting in, or proposed to be appointed to, management of the protected person's estate; and (b) evidence confirmatory of engagement, in fact and not merely in prospect, with the institutional system available for protection of the incapable person in his or her jurisdiction of domicile. 64The governing principle remains the need in each case to consult, and to act in furtherance of, the protected person's interests. 65This principle is not, at least in its invocation, constrained by technicalities. At p 380 of The Law Relating to Lunacy (1924), Theobold puts the point thus: "The Lunacy jurisdiction [that is, the protective jurisdiction] is parental and protective. It exists for the benefit of the lunatic [we would, today, prefer the broader expression 'protected person'], but it takes a large and liberal view of what that benefit is, and will do on behalf of a lunatic not only what may directly benefit him [or her], but what, if he [or she] were sane, he [or she] would as a right minded and honorable [person] desire to do."

APPLICATION OF JURISDICTION TO FACTS 66On the evidence adduced in these proceedings there is no dispute, or any scope for independent doubt, that the defendant is a person incapable of managing his affairs. That is established by reference to primary facts deposed to by both family and independent, medically qualified witnesses. 67Nor is there any dispute, or scope for independent doubt, about the personal circumstances of the defendant, domiciled with his family in France. 68The question for determination in these proceedings focuses on how the Court can, and should, respond to the apparently permanent separation of the defendant's person and estate. 69On the evidence I am, in principle, satisfied that it is in the interests of the defendant to make orders in substantially the terms sought provided that the prospective managers are bound to work within a public regulatory regime. I assume that arrangements can be, if they have not already been, put in place in France, under French law, to protect the interests of the defendant in a manner similar to, and to a degree consistent with, the standards embodied in Australian law. I am satisfied, in principle, that no useful purpose would be served by a requirement that property of the defendant remain in New South Wales notwithstanding (upon the assumption I have made) the availability of measures protective of his interests in France. 70My level of satisfaction about these matters is expressed to be "in principle" because: (a) in the nature of the application presently under consideration, the Court lacks the assistance of a contradictor, ready, willing and able to test evidence and submissions advanced in support of the application; and (b) the efficiency of any arrangements proposed for the protection of the defendant depends upon the presence not only of somebody to guard his interests, but also somebody to guard the guard, over time. 71Subject to confirmation that the institutional protections available to the defendant in France have been engaged in fact, and not merely prospectively, the object of the orders made consequent upon this judgment is to permit an orderly entrustment of the defendant's New South Wales property to a management committee bound, according to French law, to act in his interests on an ongoing basis and generally. 72All going according to plan, the defendant and those who care for him can, and will, look principally to the French legal system for protection of his estate on a day-to-day basis. The managers appointed by this Court, prospectively with liberty to transfer managed property to France, must clearly be answerable for their conduct in France. In formal terms they should also remain accountable to this Court, should it be necessary to call them to account for protection of the defendant's interests.

ORDERS 73I make orders and notations (here anonymised) to the following effect: (1)DECLARE, pursuant to s 41(1)(a) of the NSW Trustee and Guardian Act 2009 NSW, that the defendant is incapable of managing his affairs. (2)ORDER that the estate of the defendant be subject to management under the NSW Trustee and Guardian Act 2009. (3)Upon their undertaking, jointly and severally, to this Court that: (a) if and when they transfer property of the defendant to France, or acquire or hold property on behalf of the defendant in France, they will at all times comply with French law governing the administration of the estate of a person, such as the defendant, who is incapable of managing his own affairs; and (b) they will at all times act bona fide in the interests of the defendant, ORDER that the plaintiff, the nominated French lawyer and the nominated French financial manager ("the managers") be jointly appointed managers of the estate of the defendant subject to the orders and direction of the NSW Trustee and Guardian. (4)ORDER that, on the death or discharge of any of the managers, custody of the defendant's estate continue to the remainder of them, subject always to the orders and direction of the NSW Trustee and Guardian. (5)ORDER that the managers may not do anything in reliance on their appointment as managers of the estate of the defendant until the NSW Trustee and Guardian has authorised them to assume management of the defendant's estate. (6)DIRECT that, before authorising the managers to assume management of the defendant's estate, the NSW Trustee and Guardian: (a)secure from the managers (personally or by the solicitor on the record for the plaintiff in these proceedings) written confirmation that, jointly and severally, they give to the Court the undertakings recorded in paragraph 3 of these Orders; (b)obtain, by application to the District Court of NSW in the name of the NSW Trustee and Guardian on behalf of the defendant, the funds presently held in that Court on behalf of the defendant; and (c)make arrangements with the managers, and regulatory authorities in France, for an orderly transfer of the estate of the defendant to management of the managers under the supervision of the regulatory authorities in France. (7)ORDER, subject to further orders of the Court and any orders or directions of the NSW Trustee and Guardian, that the managers are at liberty to transfer to France so much of the estate of the defendant as is located in New South Wales and to hold and administer it there on behalf of the defendant. (8)ORDER that the costs of the plaintiff and the defendant be paid out of the estate of the defendant on an indemnity basis. (9)ORDER that all parties be at liberty to apply as they may be advised. (10)ORDER that the plaintiff provide a copy of these Orders to the New South Wales Trustee and Guardian. 74I note that the evidence presently before the Court is that any cheque payable to the managers, for delivery to them in France, should be drawn in favour of what we, in Australia, would recognise as a trust account of the manager who is in practice as a lawyer in France. 75Having noted that evidence, I leave to the NSW Trustee and Guardian the mechanics of giving effect to this judgment, reserving to all parties liberty to apply to enable any particular difficulties to be addressed by the Court if, as and when need be.

Amendments 16 September 2013 - Deletion of the word "an" in the first line. Amended paragraphs: 48 16 September 2013 - amended party details Amended paragraphs: coversheet 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: 16 September 2013