RH v CAH [1984] 1 NSWLR 694; re WM (1903) 3 SR (NSW) 552, applied.

Guardianship and Administration Act 1995 (Tas).

Procedure - Supreme Court procedure - Tasmania - Jurisdiction and generally - Whether jurisdiction under Charter of Justice remains or has been removed or affected by legislation - Damages for personal injuries paid under order to Public Trustee for investment for benefit of person mentally incapacitated - Public Trustee administrator of property of person under Guardianship and Administration Act 1995 (Tas) - Application to court to expend part of damages on land and house.

RH v CAH [1984] 1 NSWLR 694; re WM (1903) 3 SR (NSW) 552, applied.

Guardianship and Administration Act 1995 (Tas).

Supreme Court Civil Procedure Act 1932 (Tas), ss2(4)(a), 6(1), 187.

Procedure - Supreme Court procedure - Tasmania - Practice under Rules of Court - Payment into and out of court and tender - Damages for personal injuries - For person under disability - Mental incapacity - Damages paid under order to Public Trustee for investment - Public Trustee administrator under Guardianship and Administration Act 1995 (Tas) - Application for authority to expend on land and house - Whether court has jurisdiction - Whether application should have been made to Guardianship and Administration Board.

RH v CAH [1984] 1 NSWLR 694; re WM (1903) 3 SR (NSW) 552, applied.

Supreme Court Civil Procedure Act 1932 (Tas), ss2(4)(a), 6(1), 187.

IN THE MATTER OF THE AFFAIRS OF ANDREW PHILIP HODGES and IN THE MATTER OF THE GUARDIANSHIP AND ADMINISTRATION ACT 1995 and IN THE MATTER OF ORDER 24 RULE 11 OF THE RULES OF THE SUPREME COURT; ex parte THE PUBLIC TRUSTEE

3 Application remitted to his Honour Mr Justice Wright for further hearing.

IN THE MATTER OF THE AFFAIRS OF ANDREW PHILIP HODGES

and IN THE MATTER OF THE GUARDIANSHIP AND ADMINISTRATION ACT 1995 and IN THE MATTER OF ORDER 24 RULE 11 OF THE RULES OF THE SUPREME COURT; ex parte THE PUBLIC TRUSTEE

I agree with the reasons for judgment of Crawford J.

IN THE MATTER OF THE AFFAIRS OF ANDREW PHILIP HODGES and IN THE MATTER OF THE GUARDIANSHIP AND ADMINISTRATION ACT 1995 and IN THE MATTER OF ORDER 24 RULE 11 OF THE RULES OF THE SUPREME COURT; ex parte THE PUBLIC TRUSTEE

On 20 June 1995 the Public Trustee filed in the Court a certificate of disability under the Mental Health Act 1963, s88, with respect to Andrew Philip Hodges. By virtue of s93(1), the effect of the certificate was that Mr Hodges was deemed to be a patient within the meaning of Part VI of that Act and the Public Trustee was deemed to have been appointed the committee of his estate under s86.

Mr Hodges is an adult, but he was a minor when on 26 June 1987 he suffered a serious injury as a result of a motor vehicle accident and was rendered quadriplegic. An action claiming damages for his injuries was instituted in his name by a next friend and on 7 August 1996 the Master approved the compromise of the claim and judgment was entered in Mr Hodges` favour for $2,000,532.55. The Master ordered inter alia that "$1,700,000.00 be paid out of court to the Public Trustee for the State of Tasmania for investment on behalf of the plaintiff in securities authorised by law including any contributory first mortgages of real estate in Tasmania". The Master also ordered that further monies out of the judgment sum also be paid to the Public Trustee "for investment on behalf of the plaintiff in securities authorised by law including first mortgages of real estate in Tasmania". The Master ordered that the Public Trustee attend to the satisfaction of six accounts from out of the settlement, those accounts totalling $244,543.60 and that the Public Trustee pay $54,844.25 to two named persons.

On 13 October 1997 Wright J heard an ex parte application by the Public Trustee by which an order was sought that the Public Trustee be permitted to purchase on behalf of Mr Hodges land at 6A Compton Road, Old Beach, for $65,000 and an order that the Public Trustee be permitted to expend a sum up to $476,500 for the construction of a house on that land for Mr Hodges. It was specially designed and it was proposed to build it to nursing home standard with special facilities and accommodation features. Wright J did not doubt that the proposal was reasonable and appropriate to meet a large number of Mr Hodges' special needs. However his Honour held that he had no jurisdiction to make the orders sought and dismissed the application. Pursuant to the Rules of Court O76, r6, the Public Trustee renewed the application by way of appeal to the Full Court, claiming that the learned judge erred in determining that he was without jurisdiction.

On 1 September 1997, shortly before the application was heard by Wright J, the provisions of the Mental Health Act 1963, PtVI (which contained ss82 to 98), were repealed by the Guardianship and Administration (Miscellaneous Amendments) Act 1996, s38, at the same time as the Guardianship and Administration Act 1995 ("the 1995 Act") commenced. The deemed appointment, under the Mental Health Act 1963, s93(1), of the Public Trustee as the committee of Mr Hodges` estate was directly affected by the 1995 Act, Sch4, cl5, in the following way:

"5 Where the Public Trustee has been appointed as a committee on the filing of a certificate of disability under the Mental Health Act 1963 and the appointment was in force immediately before the commencement date--

(a) the certificate of disability is taken to be an administration order made under this Act; and

(b) the Public Trustee is taken to be administrator of the estate of the person to whom the order relates without limitation of his or her powers."

By the repeal of the Mental Health Act 1963 and the enactment of the 1995 Act, Parliament removed from this Court the powers it had under the 1963 Act to appoint committees and to otherwise control and direct the management and administration of the property and affairs of persons of unsound mind. A new legislative scheme was introduced under which the Guardianship and Administration Board, which was constituted by the 1995 Act, may make administration orders appointing a person to be the administrator of the estate of a person with a disability who, by reason of the disability, is unable to make reasonable judgments in respect to matters relating to all or any part of his or his estate and is in need of an administrator. The person appointed as administrator may be the Public Trustee, the Public Guardian, a trustee company or any other person. By the 1995 Act, s56, an administrator has many powers with respect to inter alia the general care and management of the estate, although under s57 the administrator must at all times act in the best interests of the represented person. An administrator is at all times subject to the advice and directions of the Board, on application made to the Board or upon the Board's own motion (s61) and an administrator must report to the Board with its accounts in accordance with s63. The powers of this Court or a judge, under the Mental Health Act 1963, no longer exist. However, under s75 a question of law arising in a hearing before the Board may be reserved in the form of a special case stated for the opinion of the Court and under s76 an appeal may be brought to the Court from a determination of the Board on a question of law or, with the leave of the Court, on any other question.

Because of the 1995 Act, Sch4, cl5, cited above, the Public Trustee had ceased to be the committee of Mr Hodges` estate at the time of the application to Wright J. Instead the certificate of disability was taken to be an administration order made under the 1995 Act and the Public Trustee was taken to be administrator of the estate under that Act. It was the opinion of Wright J that the Public Trustee's application ought to have been made to the Guardianship and Administration Board established under the 1995 Act and not to the Court or a judge, because of the provisions of the 1995 Act, s61. Those provisions are:

"61--(1) An administrator may apply to the Board for advice or directions on any matter relating to the scope of an administration order or the exercise of any power by the administrator under it.

(2) The Board may require notice of the application under subsection (1) to be given to any person that the Board directs and may exercise its powers under this section without a hearing.

(a) approve or disapprove of any act proposed to be done by the administrator; and

(b) give such advice as it considers appropriate; and

(c) vary the administration order or make any other order that it could have made on the original application relating to the administration of the estate that it considers necessary.

(4) The Board of its own motion may direct, or offer advice to, an administrator in respect of any matter.

(5) An administrator who contravenes a direction given to him or her under this section is guilty of an offence and is liable on summary conviction to a fine not exceeding 20 penalty units."

Before Wright J, counsel for the Public Trustee submitted that the basis for the jurisdiction of the Court or a judge to make the orders sought is to be found in the Rules of Court, O24, r11, the relevant terms of which are:

(a) money is recovered by or on behalf of, or adjudged or ordered or agreed to be paid to, or for the benefit of a person under disability; or

(b) money paid into Court is accepted by or on behalf of a person under disability,

that money shall, unless the Court or a judge otherwise directs, be paid to the Public Trustee.

(2) Where the Public Trustee is the committee of the estate of the person under disability, any money paid to him under this rule in respect of that person shall, subject to any directions of the Court or a judge, be dealt with by him in such manner as he is authorized or required to deal with the property of that person under Part VI of the Mental Health Act 1963.

(3) In a case where sub-rule (2) of this rule does not apply, any money paid to the Public Trustee under this rule in respect of a person under disability shall, subject to any directions of the Court or a judge, be held in trust and applied by him in such manner as he may think fit for the maintenance and education or otherwise for the benefit of the person under disability.

(4) Where the Public Trustee holds any money or other property in trust under sub-rule (3) of this rule, he may at any time request the Court or a judge to give him directions as to the trust or its administration, or to vary any directions already given in relation thereto, or to determine any question arising therein, and any such directions or determination may be given accordingly."

Wright J was of the opinion that the 1995 Act, s61, by necessary implication, excluded the powers of direction and control heretofore exercised by the Court under O24, r11, and that "the supervisory and advisory functions of the Court have effectively been passed over to the Board in any case in which the Public Trustee is committee of an estate and handling the funds received for investment in that capacity". His Honour considered that "it would be inconsistent with the legislation for the Court to continue to exercise the role prescribed by r11(2). In cases to which r11(2) does not apply, the situation provided for in r11(3) and (4) would appear to be unaffected".

Before this Court however, counsel for the Public Trustee submitted that the basis for the jurisdiction is to be found in the Charter of Justice, that the jurisdiction has not been removed from the Court by the 1995 Act or any other legislation and that O24, r11 merely contains the method or procedure for exercising that jurisdiction. The Charter of Justice (1831) cl22, authorised the Court in these terms:

"Power to Appoint Guardians of Infants and of Lunatics, &c.

And We do hereby authorize the said Supreme Court of Van Diemen`s Land to appoint guardians and keepers of infants and their estates according to the order and course observed in that part of our United Kingdom called England and also guardians and keepers of the persons and estates of natural fools and of such as are or shall be deprived of their understanding or reason by the act of God so as to be

unable to govern themselves or their estates--which We hereby authorize and empower the said Court to inquire, hear, and determine by inspection of the person or such other ways and means by which the truth may be best discovered and known."

Upon the passage of the Supreme Court Civil Procedure Act 1932 actions for damages for personal injuries could be instituted by a lunatic by his or her committee and such actions could also be instituted by persons of unsound mind not so found by inquisition by a next friend. See the Rules of Court O18, r16, in the second schedule to the Act at that time. Damages recovered in such an action, whether following a trial or a compromise, were paid to the committee, if the plaintiff was a lunatic, for not only was the committee responsible for the action but it also handled the lunatic's estate. However there was a special rule of court regulating the payment of damages recovered by a person who was of unsound mind not so found by inquisition. In such a case there was no committee. By O24, r10, it was required, unless the Court or a judge otherwise directed, that the damages recovered or awarded be paid to the Public Trustee, and that, subject to any general or special direction of the Court or a judge, the Public Trustee should hold and apply the damages in such manner as he might think fit for the maintenance and education or otherwise for the benefit of such person of unsound mind. It was further provided by that rule that the Public Trustee, in any case in which he was a trustee under the rule, might at any time request the Court or a judge to give him directions as to the trust or its administration, or to vary directions which might already have been given in regard thereto, or to determine any question arising therein, and such directions or determination might be given accordingly. There was no need for O24, r10, to apply to the case of a lunatic and his or her committee, for the committee had powers, and the Court had jurisdiction over the committee`s exercise of those powers, with regard to the control and management of the estate of the lunatic, by virtue of the Supreme Court Civil Procedure Act 1932 PtVIII (ss87 to 161). It is also worth noting that damages paid to a lunatic's committee were liable to become mixed with the other funds and assets of the lunatic`s estate and to cease to be identifiable as a specific fund to which provisions such as those of O24, r10, might readily be applied in any event.

By the Mental Health Act 1963, which commenced on 1 December 1964, essentially all of the lunacy provisions of the Supreme Court Civil Procedure Act 1932, which had given the Court jurisdiction in lunacy, were repealed and a new system for the management of the property and affairs of patients (persons incapable, by reason of mental disorder, of managing their property and affairs) was introduced by PtVI of the 1963 Act. By virtue of the new provisions the Public Trustee, or some other person, could be appointed by order of a judge to be the committee of a patient (s86) and the Public Trustee by filing a certificate of disability, was deemed to have been so appointed (s93(1)).

On 15 May 1965 the Rules of the Supreme Court 1965 commenced to operate. They included O24, r11(1) to (4), in their present form. Those provisions were similar to those of the previous O24, r10, the alterations largely reflecting the alteration in the law which had been effected by the Mental Health Act 1963. By sub-rule(1) it is provided that in any cause or matter money recovered by a person under disability shall, unless the Court or a judge otherwise directs, be paid to the Public Trustee. That is what happened in this case. It was not otherwise directed and the money was paid to the Public Trustee. By sub-rule(2) it is provided that where the Public Trustee is the committee of the estate of the person under disability, the money paid to him under the rule in respect of that person shall, subject to any directions of the Court or a judge, be dealt with by him in such manner as he is authorised or required to deal with the property of that person under the Mental Health Act 1963, PtVI. In this case, directions were given by the Master. By sub-rule(3), where the Public Trustee is not the committee of the estate of the person under disability, any money paid to the Public Trustee under the rule in respect of a person under disability shall, subject to any directions of the Court or a judge, be held in trust and applied by him in such manner as he may think fit for the maintenance and education or otherwise for the benefit of the person under disability. Finally by

sub-rule(4), it is provided that where the Public Trustee holds any money or other property in trust under sub-rule(3), he may at any time request the Court or a judge to give him directions as to the trust or its administration, or to vary any directions already given in relation thereto, or to determine any question arising therein, and any such directions or determination may be given accordingly.

It should be observed that the Rules of Court, which are made under the power to make rules conferred by the Supreme Court Civil Procedure Act 1932, PtXIV, are mere rules of procedure for carrying the Act into effect (s187) and do not confer any new jurisdiction on the Court which does not already exist apart from the rules. British South Africa Coy v Companhia de Mocambique [1893] AC 602 at 628; Swindell v Bulkeley (1886) 18 QBD 250 at 253. It should also be observed that the Supreme Court Civil Procedure Act 1932 did not "take away, lessen, or impair any jurisdiction, power, or authority (judicial or ministerial) which, immediately before the commencement of this Act, was vested in or capable of being exercised by the Supreme Court or by any one or more of the judges thereof, whether sitting in Court or in chambers or elsewhere". The Act, s2(4)(a). Further, by virtue of the Act, s6(1), the jurisdiction of the Court and its judges, which immediately before its commencement was vested or capable of being exercised under, or by virtue of inter alia the Charter of Justice, was, except as was otherwise provided in the Act, to be exercised, so far as regards procedure and practice, in the manner provided by the Act and the Rules of Court.

It was submitted by counsel that the jurisdiction of the learned judge to make the orders sought in this case is to be found in the Charter of Justice. Clearly the jurisdiction could not be found elsewhere. The 1995 Act gives no such jurisdiction, only the Guardianship and Administration Board being given power to advise and direct an administrator.

In RH v CAH [1984] 1 NSWLR 694, Powell J considered the separate Charter of Justice which applied to the Supreme Court of New South Wales, when hearing an application concerning a person whose condition was not one of "mental illness" but of "mental infirmity" and to whom the Mental Health Act 1958 (NSW) therefore did not apply. His Honour found jurisdiction in the Charter of Justice (NSW) and declared the person to be of unsound mind and incapable of managing her own affairs, appointed a committee of her estate and made other orders. Many years before, in re WM (1903) 3 SR (NSW) 552 at 567 Owen J, with whom the other members of the Court agreed, held that the powers conferred on the Supreme Court of New South Wales by the Charter of Justice (NSW) still remained vested in the Court notwithstanding the enactment of the Lunacy Act 1878, which Owen J regarded as only substituting a new mode of inquiry by petition to the Court itself, for the old mode of inquiry by a commission de lunatico inquirendo. By the same logic, the same was the case in this State following the enactment of the lunacy provisions of the Supreme Court Civil Procedure Act 1932. (I note that by that Act, s90, it was expressly provided that after its commencement no commission in the nature of a writ de lunatico inquirendo could be issued.) See also re Magavalis [1983] Qd R 59; Smith v Reynolds [1989] VicRp 25; [1989] VR 309.

The terms of the Charter of Justice (NSW) were identical with the Charter of Justice applying to this State as concerns the authority given to both courts over infants, natural fools and such persons as may be deprived of their understanding or reason by the act of God. In RH v CAH at 703 Powell J pointed out that the Charter conferred on the court jurisdiction to exercise that part of the Royal Prerogative which related to persons of unsound mind, and which was exercised on behalf of the Crown by a high officer of State--usually, but not always, the Lord Chancellor--to whom the care and commitment of the persons and estates of persons of unsound mind were granted by letters patent under the Sign Manual. Although concluding at 706, that the Charter gave him jurisdiction in the matter before him, Powell J pointed out that it does not follow, from the mere fact that the court has jurisdiction, that the court will exercise it. His Honour thought, on the contrary, that the court should not usually exercise its jurisdiction in such matters unless it is at least desirable, if not necessary, in the interests of the person who is a natural fool etc (see the Charter of Justice) that it do so.

On the basis of the authorities to which I have referred, I conclude that the Supreme Court of this State retains the jurisdiction which was given to it by cl22 of the Charter of Justice. That however is not a complete answer because before the Court or a judge exercises that jurisdiction it should appear that the case is an appropriate one for its exercise. RH v CAH (supra) at 706. If this had been a case in which the monies had simply been paid out of court to the Public Trustee without a direction in the terms in fact made by the Master, it would be a strong case for arguing that the Court or a judge ought not concern itself. The 1995 Act would apply and the Public Trustee would be taken to be administrator of Mr Hodges' estate as if an administration order had been made under that Act, and in view of the provisions of the Act and the obvious wishes of Parliament, it would be more appropriate for any directions concerning the application of the money to be sought by the Public Trustee under that Act from the Guardianship and Administration Board. It is not desirable that the Court encourage a situation in which applications could be made either to the Board or to a judge, depending on the whim of the applicant. In some cases it may not be appropriate for a judge to deal with an application, for the money originally recovered in a court action may well be mixed by the administrator with other funds of the estate, over which the judge would have no jurisdiction whatever, whereas the Board would have jurisdiction, in the usual case, over all of the assets of the estate including those which originated from the damages recovered in the action. It is also worth noting that there might be a risk, if applications were allowed to be made to both the Board and to a judge, of conflicting directions being given and of an applicant applying funds in accordance with a direction given by a judge in contravention of a direction given by the Board, which would be an offence under the 1995 Act, s61(5).

However, there is a particular aspect of this case which in my view calls for the Court or a judge to exercise the jurisdiction given by the Charter of Justice and give directions, rather than stand aside and allow the Board to deal with the matter. I refer to the terms of the order made by the Master on 7 August 1996 which caused the damages to be paid to the Public Trustee in the first place. The Master ordered that the sum of "$1,700,000.00 be paid out of court to the Public Trustee for the State of Tasmania for investment on behalf of the plaintiff in securities authorised by law including any contributory first mortgages of real estate in Tasmania". The Master also ordered that further monies out of the judgment sum also be paid to the Public Trustee "for investment on behalf of the plaintiff in securities authorised by law including first mortgages of real estate in Tasmania". The Master ordered that the Public Trustee attend to the satisfaction of six accounts from out of the settlement, those accounts totalling $244,543.60, and that the Public Trustee pay $54,844.25 to two named persons. After satisfaction of those accounts and payment of the last mentioned sum the Public Trustee was restricted by the terms of the order to investing the balance of the money paid to him pursuant to the order in securities authorised by law, including first mortgages of real estate in Tasmania. Without further directions from the Court, none of the money could lawfully be applied toward any other object. It is arguable that the Guardianship and Administration Board could not approve the application by the Public Trustee of the money for the acquisition of land and the construction on it of a house for Mr Hodges, because the terms of the Master`s order do not permit the use of the funds for those objects. It is therefore desirable, if not essential, that the Court or a judge exercise the jurisdiction which was given by the Charter of Justice, to make whatever orders are necessary and appropriate for expenditure of the funds for the benefit of Mr Hodges.

It is therefore my respectful conclusion that the learned judge was in error in holding that he was without jurisdiction and in dismissing the application for the reasons given by him. I would set aside the order by which the application was dismissed and remit it to the learned judge for determination on its merits, in accordance with law.

IN THE MATTER OF THE AFFAIRS OF ANDREW PHILIP HODGES and IN THE MATTER OF THE GUARDIANSHIP AND ADMINISTRATION ACT 1995 and IN THE MATTER OF ORDER 24 RULE 11 OF THE RULES OF THE SUPREME COURT; ex parte THE PUBLIC TRUSTEE

The Public Trustee, as the administrator of the estate of Andrew Hodges by virtue of a certificate of disability made under the Mental Health Act 1963, has sought the approval of the Court for the expenditure of certain moneys for the benefit of that person. The original application for approval was rejected on the basis that the provisions of the Guardianship and Administration Act 1995 ("the Act") obviated any need for the approval of the Court. There is no question as to the appropriateness of the intended use of the moneys which were paid to the Public Trustee pursuant to a judgment of this Court entered for Hodges. The original determination was removed to the Full Court pursuant to the Rules of the Supreme Court, O76, r6. The issue is whether the provisions of the Act operate as a code and preclude supervision of such moneys by the Court or inhibit control of such funds from any statutory body other than the Guardianship Board.

The original appointment of the Public Trustee was effected by virtue of the Mental Health Act 1963, certain provisions of which were repealed by the Guardianship and Administration (Miscellaneous Amendments) Act 1996, s38, with the result that the Act affected the original grant of legislative power in the following manner:

"5--Where the Public Trustee has been appointed as a committee on the filing of a certificate of disability under the Mental Health Act 1963 and the appointment was in force immediately before the commencement date--

(a) the certificate of disability is taken to be an administration order made under this Act; and

(b) the Public Trustee is taken to be administrator of the estate of the person to whom the order relates without limitation of his or her powers."

The issue is whether that enactment requires the Public Trustee to obtain approval of the Guardianship Board, or whether such approval should still be the province of this Court. The Act, s61, provides:

"(1) An administrator may apply to the Board for advice or directions on any matter relating to the scope of an administration order or the exercise of any power by the administrator under it.

(2) The Board may require notice of the application under subsection (1) to be given to any person that the Board directs and may exercise its powers under this section without a hearing.

(a) approve or disapprove of any act proposed to be done by the administrator; and

(b) give such advice as it considers appropriate; and

(c) vary the administration order or make any other order that it could have made on the original application relating to the administration of the estate that it considers necessary.

(4) The Board of its own motion may direct, or offer advice to, an administrator in respect of any matter.

(5) An administrator who contravenes a direction given to him or her under this section is guilty of an offence and is liable on summary conviction to a fine not exceeding 20 penalty units."

Current or competing powers are afforded by the Rules of Court, O24, r11, which states:

(a) money is recovered by or on behalf of, or adjudged or ordered or agreed to be paid to, or for the benefit of a person under disability; or

(b) money paid into Court is accepted by or on behalf of a person under disability,

that money shall, unless the Court or a judge otherwise directs, be paid to the Public Trustee.

(2) Where the Public Trustee is the committee of the estate of the person under disability, any money paid to him under this rule in respect of that person shall, subject to any directions of the Court or a judge, be dealt with by him in such manner as he is authorized or required to deal with the property of that person under Part VI of the Mental Health Act 1963.

(3) In a case where sub-rule (2) of this rule does not apply, any money paid to the Public Trustee under this rule in respect of a person under disability shall, subject to any directions of the Court or a judge, be held in trust and applied by him in such manner as he may think fit for the maintenance and education or otherwise for the benefit of the person under disability.

(4) Where the Public Trustee holds any money or other property in trust under sub-rule (3) of this rule, he may at any time request the Court or a judge to give him directions as to the trust or its administration, or to vary any directions already given in relation thereto, or to determine any question arising therein, and any such directions or determination may be given accordingly."

The learned primary judge determined that by implication the Act excluded power and control by the Court under O24 and vested such responsibility in the Board. The power afforded to the Court is that granted by the Charter of Justice 1831, cl 32, which provides:

"Power to Appoint Guardians of Infants and of Lunatics, &c.

And We do hereby authorize the said Supreme Court of Van Diemen's Land to appoint guardians and keepers of infants and their estates according to the order and course observed in that part of our United Kingdom called England and also guardians and keepers of the persons and estates of natural fools and of such as are or shall be deprived of their understanding or reason by the act of God so as to be unable to govern themselves or their estates--which We hereby authorize and

empower the said Court to inquire, hear, and determine by inspection of the person or such other ways and means by which the truth may be best discovered and known."

Language aside, the breadth and extent of the provisions of the Charter make it clear that the grant of power touches the core of the manner in which society governs itself. The grant of power clearly entrusts the Court with the responsibility of supervising the affairs of those disadvantaged by reason of disability. It would require a clear statement by Parliament that such power be removed and granted to an administrative body. Whilst the Rules of Court are made pursuant to the Supreme Court Procedure Act 1932, and of themselves confer no jurisdiction, they are a valid reflection of the basic requirement that the courts are entrusted with the supervision of the affairs of disadvantaged persons. Absent clear statement by Parliament, it could not be said that the Act was intended to repeal the relevant provision of the Charter.

The judgment obtained by Hodges was one entered by way of compromise, approved by the Master of this Court, and the order included that:

"... $1700,000 be paid out of court to the Public Trustee for the State of Tasmania for investment on behalf of the plaintiff in securities authorised by law including any contributory first mortgages of real estate in Tasmania"

and that further moneys be paid to the Public Trustee:

"... for investment on behalf of the plaintiff in securities authorised by law, including first mortgages of real estate in Tasmania."

The Master was required to both approve a compromise for a person unable, by reason of disability, to make considered judgment, and further to delimit the permitted use of the moneys comprised in such judgment. It remained the responsibility of the Court to ensure compliance with the terms of that order. It would make little sense for Parliament to require the Court to abrogate responsibility for ensuring that there was compliance with its own order. The jurisdiction of the Court should only be removed by clear and unambiguous language of Parliament (Johnson and Another v Director-General of Social Welfare (Vic) [1976] HCA 19; (1976) 50 ALJR 562). Discordance between general and specific legislation was considered by Powell J in R H v C A H and Others [1984] 1 NSWLR 694, a case involving consideration of apparent conflict between the Mental Health Act 1958 (NSW) and the Charter of Justice. The Court determined that the provisions of the Charter were paramount. In his reasons at 703, Powell J concluded that:

"In conferring on this Court jurisdiction in respect of `natural fools, and ... such as are or shall be deprived of their understanding or reason by the act of God' the Charter of Justice was conferring upon the court jurisdiction to exercise that part of the Royal Prerogative which related to persons of unsound mind, and which was exercised on behalf of the Crown by a high officer of State--usually, but not always, the Lord Chancellor--to whom the care and commitment of the persons, and estates of persons, of unsound mind were granted by letters patent under the Sign Manual."

In this case, Hodges is a quadriplegic and ought not be regarded as a natural fool. Powell J examined the history and use of the comparable terms and approved of the classification followed by Lord Cook in his reporting of Beverley`s Case [1598] EngR 5; [1603] 4 CO Rep 123b, that:

"... And it must be known, that there are four manners of non compos mentis 1 Idiot or fool natural. 2 He who was of good and sound memory, and by the visitation of God has lost it ..."

"Although, in current parlance, an 'idiot` is generally regarded as being a person so deficient in mind as to be totally and permanently incapable of rational conduct (see GPG v ACF; Concise Oxford Dictionary, 7th ed (1982) at 495) in contrast to an 'imbecile`, who has such a want of reason as prevents him from attaining any considerable amount of knowledge or intelligence (see Pope op cit at 8) the researches of counsel, and my own research, would suggest that, although the definition of an 'idiot` in law was a strict one and a narrow one (see Ball v Mannin (1829) 1 Dow & Clark 380 at 392; at [1829] EngR 165; 6 ER 568 at 570 per Lord Tenterden CJ), it was not so strict as to exclude persons who, although severely, or profoundly retarded, were not totally incapable of any rational conduct whatsoever."

"... that a person who is as severely retarded as is C falls within that class of persons described in the Charter of Justice as 'natural fools` and that, accordingly, this Court has jurisdiction to appoint a committee of her person and estate."

That approach is consistent with that taken by other courts and jurisdictions (see In re W M (1903) 3 SR NSW 552; Re Magavalis [1983] 1 Qd R 59, and Smith v Reynolds and Others [1989] VicRp 25; [1989] VR 309.

There remains the question as to the manner in which this Court should exercise its supervisory jurisdiction. This issue was also addressed by Powell J in R H v C A H (supra) in the following terms, at 706-707:

"It does not, however, follow, from the mere fact that the court has jurisdiction, that the court will do so; on the contrary, the court will not normally exercise its jurisdiction in such matters unless it is at least desirable, if not necessary, in the interests of a defendant that it do so: see, for example, M v M [1981] 2 NSWLR 334 at 337; DW v JMW.

It seems to me that this is a case in which it might properly be said that it is necessary, in the interests of C, that the court exercise its jurisdiction to appoint a committee, for, since 1 June 1983, when C was discharged as a 'patient`, there has been no-one whom the law would recognize as having authority to make decisions--as, for example, consenting to an operation for C--affecting C's welfare: see, for example, Hayes & Hayes, op cit 158.

The question however, remains: whether, having appointed a committee, the court may, or should, do more. In my view, it may, and it should.

While, once a person is committed to the care of a committee, the latter, in the absence of special order, has a general discretion as to the former`s care and treatment, the court retains its supervisory role, and may, in an appropriate case, where it is in the patient's interests that it do so, make a variety of orders, including an order for access: see, for example, R v Clarke [1762] EngR 76; (1762) 3 Burr 1362; 97 ER 875; Ex parte Lyttleton [1801] EngR 189; (1801) 6 Ves Jun 7; 31 ER 911; see also Re B (An Alleged Lunatic) [1891] 3 Ch 274 at 277."

In ordinary matters it might be more appropriate for a person to seek directions from the Guardianship Board and it should not be seen that the jurisdiction of the Court excludes such course. The powers and duties are concurrent (Re DJR and the Mental Health Act, 1958 [1983] 1 NSWLR 557). Ordinary matters, especially absent disputation, ought remain the province of the Board. But where there are substantial questions involving the rights of a patient, recourse ought be permitted to

the inherent jurisdiction of the court (P McI v K M McI (1987) 10 NSWLR 243). In the circumstances of this case, the estate of the person subject to disability is chiefly comprised of moneys received as a result of a "compromised" action for damages. The order of this Court permitted the Public Trustee certain powers of investment and restricted the power of the Public Trustee to invest the balance of the moneys in security authorised by law. The Public Trustee was not permitted to deal with such moneys outside those terms without the sanction of the Court. In effect, the order of the Court created a trust conferring limited powers in the Public Trustee (Wood v The Public Trustee of Western Australia, unreported, Supreme Court of Western Australia, 581995). In the circumstances of this case, the Public Trustee is seeking to expend a sum of money up to $476,500 for the construction of a house, specially designed to accommodate the disabilities of Hodges, and the sum represents a significant portion of the damages award.

In my opinion, the learned judge possessed jurisdiction to determine the matter. I would propose that the order be set aside and an order be made remitting the matter to the learned judge for determination on its merits.