Re PQR and the Protected Estates Act 1983 [2005] NSWSC 729

RE: PQR AND THE PROTECTED ESTATES ACT 1983 JUDGMENT 1 HIS HONOUR: This is an application by the Protective Commissioner. 2 On 25 February 1993 this Court ordered that management of the estate of a protected person, PQR, be committed to the Protective Commissioner. PQR was, at the time, resident in New South Wales. 3 By 2004, PQR was married, and residing in the Australian Capital Territory. 4 On 2 August 2004 the Guardianship and Management of Property Tribunal (ACT) appointed PQR's wife and brother as guardians of PQR, and also as: "… plenary Managers with the power to act jointly and/or severally when necessary, of the estate of the protected person with all the powers and duties conferred by the Guardianship and Management of Property Act 1991." 5 That Tribunal also directed: "That the Guardianship and Management of Property Tribunal is to contact the Protective Commissioner of New South Wales to recommend withdrawal of order of the Supreme Court." 6 On 5 August 2004 the Deputy Registrar of that Tribunal wrote to the Protective Commissioner, informing him of that order and direction, and asking that the Tribunal be advised of the outcome of any decision. 7 Since the order of 2 August 2004, the Protective Commissioner has had no active role in the management of the estate of PQR. 8 On 17 January 2005 the Guardianship and Management of Property Tribunal of the ACT made an order appointing the Public Trustee of the ACT as "plenary Manager of the estate of the protected person with all the powers and duties conferred by the Guardianship and Management of Property Act 1991". By a separate order, the Public Trustee was appointed: "plenary manager of the property and financial affairs of the protected person with all the powers that the said protected person would have been entitled to exercise had he been capable if legally competent to do so subject to the further terms of this Order."

There was a direction from the Tribunal "That the Public Trustee arrange with the Protective Commissioner of New South Wales to have all funds for protected person transferred to their control." 9 Following a request by the Public Trustee in February 2005, the Protective Commissioner sent $70,000 to the Public Trustee from funds held by the Protective Commissioner. 10 By a further order of the Tribunal made on 26 April 2005, PQR's wife and brother were once again appointed as guardians of the protected person, and plenary managers with the same powers as had been conferred on them by the order of 2 August 2004. As well, the Tribunal's order noted "That the Public Trustee is to assist Managers to obtain all remaining funds from New South Wales Protective Commissioner belonging to protected person." 11 The Protective Commissioner continues to hold a little over $15,000 which (subject to any charges of the Protective Commissioner) is the property of PQR. 12 The Protective Commissioner proposes that the financial management order made in respect of the estate of PQR on 25 February 1993 be revoked to enable the estate to be managed by PQR's wife and brother upon the basis that: · He is resident in ACT; · His wife and brother were appointed as joint guardians and managers of his estate by order dated 26 April 2005 of the Guardianship and Management Property Tribunal in the Australian Capital Territory; and · It is accordingly in his best interests that the Order be revoked. 13 The Protective Commissioner also seeks approval for him paying and transferring to PQR's wife and brother all assets held by him for PQR. 14 The power of the New South Wales Supreme Court to appoint a person as manager of the estate of a protected person arises under section 22 Protected Estates Act 1983 ("PE Act"). Section 24 PE Act provides that, when the Protective Commissioner has management of the estate of a protected person committed to him, the Commissioner has and may exercise all functions necessary and incidental to its management and care, and such other functions as the Court may direct or authorise the Protective Commissioner to have or exercise. Specific examples of such functions are given in section 24(2) PE Act. Section 25 enables the Protective Commissioner to employ and pay any person to transact any business or do any act required to be transacted or done in the administration and management of the estate. Section 26(1) confers on the Commissioner power to exercise all functions as the protected person has and can exercise, or would have and could exercise if under no incapacity. Section 34(1)(a) PE Act provides that the management of the estate of a protected person is terminated (inter alia) upon the order that the estate be subject to management under the Act being revoked. Section 35 expressly confers upon the Court power to revoke any declaration made that a person is incapable of managing his or her affairs, and revoke the order that the estate of the person be subject to management under the Act, if the court is satisfied that the protected person is capable of managing his or her affairs. It is not contended in the present case that PQR is capable of managing his affairs, and indeed the various orders of the Tribunal proceed on the basis that he is not. 15 There is no power expressly conferred by the PE Act to revoke the order if it is in the best interests of the protected person to do so. 16 Section 65(2) PE Act makes provision for a country, state or territory outside New South Wales to be declared, by proclamation, to be a "reciprocating State". Section 67(1) PE Act provides: "Where a protected person is possessed of or entitled to or appears to be possessed of or entitled to real or personal property in a reciprocating State, the Protective Commissioner may authorise an officer charged by the laws of the reciprocating State with the care, recovery, collection, preservation and administration of the property of incapable persons to collect, recover, manage, sell or otherwise dispose of and administer the property …" 17 That provision is inapplicable in the present case because (a) the ACT has not been the subject of any proclamation under section 65, and (b) in any event, the property of the protected person which is in question in the present case is property which is presently located in New South Wales, not in the ACT. 18 Section 8(2) of the Guardianship and Management of Property Act 1991 (ACT) ("the ACT Act") confers on the Guardianship and Management of Property Tribunal, established by section 57 of that Act, power to appoint a manager to manage all, or a stated part of, the person's property, "with the powers that the Tribunal is satisfied are necessary or desirable to allow the manager to make decisions in relation to the property, in accordance with the decision-making principles". Section 8A of the ACT Act restricts the power of the Tribunal to appoint a manager for property in the ACT of someone who lives outside the ACT. However, there is no relevant limitation on the power of the Tribunal to appoint a manager of the property of someone who lives in the ACT, as PQR did at the date of each of the Tribunal's orders relating to him in 2004 and 2005. 19 Section 12 of the ACT Act enables the Tribunal to register the appointment of a person who is, under a "corresponding law" a manager of property of another person who lives outside the ACT. "Corresponding law" is defined in section 12 as "a law of a State or of another Territory, or a law of a prescribed country, that substantially corresponds to this Act." Because PQR did not live outside the ACT in 2004 and 2005, that power could not be used by the Tribunal in relation to the order of the Supreme Court appointing the Protective Commissioner as manager. 20 The various orders of the ACT Tribunal are ones which, once made, are entitled to full faith and credit throughout Australia (Re DEF and the Protected Estates Act 1983 [2005] NSWSC 534). The order appointing PQR's wife and brother as manager of his estate is an order which is fundamentally inconsistent with the order of this Court appointing the Protective Commissioner to have the management of the estate of PQR. This is because the ACT orders purport to state fully who are the people who have power to manage the estate of PQR, and the Protective Commissioner is not one of those people. It is not possible for two orders, one of which confers all powers of management relating to the estate of a protected person upon A, the other of which confers all powers of management relating to the estate of a protected person upon B, to both continue to operate. In my view, the only way in which a legal system which is required to recognise the validity of both the order of this Court of 25 February 1993 and the various orders of the Tribunal could deal with them is by regarding the orders of the Tribunal as having superseded the order of this Court, without formally revoking it. 21 When the orders of the Tribunal have left the order of this Court as an empty shell, the preferable course is to revoke it, rather than leave it in existence as a potential source of confusion. Even though no power in the PE Act states in so many words that this Court can revoke a management order in that situation, I am satisfied that power to revoke it is conferred by the general language of section 34(1)(a) PE Act. Even if I were wrong in that conclusion, the Court would have an inherent power to revoke it in the circumstances of this case, under its inherent power to deal with its own orders. It is not necessary for the purpose of this application to decide the larger question of whether the Court can revoke a management order if it is of the view that it is in the best interests of the protected person to do so. 22 Revoking a management order involves a substantive decision, outside the scope of an application for directions under section 12 PE Act. However, given that the orders of the Tribunal were made after all the procedural precautions required for the making of such an order had been satisfied, and that the lack of consent, for all practical purposes, of the order of this Court arises as a matter of law from the making of the order by the ACT Tribunal, I am satisfied that it is appropriate to make the substantive order without further notice to any person. ORDERS

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