W v B

THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION PROTECTIVE LIST

JUDGMENT 1 HIS HONOUR: This is an awkward matter which I dealt with in February and May of this year. After my second judgment it would seem that the plaintiff appealed to the Court of Appeal. However, the material before the Court of Appeal apparently was defective and on 4 June 2001 Hodgson JA referred the matter back to this Court because he was concerned that I had not fully dealt with the claims made by the plaintiff in her summons filed on 21 November 2000. That is certainly correct, and the reason why it happened that way is that everyone seemed to acknowledge at the hearing before me that it was not the matters raised in the summons which were really concerning the parties. The real dispute was what should happen to the protected person's home unit at Dee Why, and what should happen to ensure that the protected person was adequately funded for her ordinary living. 2 As is implicit from one of my earlier judgments the matter came to my attention when I received an application for directions under s 12 of the Protected Estates Act, 1983 from the Acting Protective Commissioner. He asked what, in all the circumstances, he should do about the sale or retention of the protected person's unit at Dee Why. His report seemed to indicate there was some problem in having the unit inspected. I advised that a Court Visitor should be asked to prepare a report on the matter and nothing should happen until then. In due course, the Court Visitor inspected the property and made a report. 3 That action seems to have sparked the issue by the plaintiff of the summons which was filed on 21 November 2000. 4 I will set out the first two orders in the summons, and then paraphrase the balance. Orders 1 and 2 are: "(1) An Order that the First Defendant is directed by the Second Defendant to be removed as financial manager of the estate of (the protected person) in accordance with its powers and duties as stated in Division 4, Section 76.27 and sub-paragraph 27, and Section 30 of the Protected Estates Act, 1983. (2) A Declaration and Order that financial management by the Second Defendant of (the protected person) be revoked by this Honourable Court finding the Second Defendant has neglected and unethically performed or withheld its duties and responsibilities, in accordance to Section 28 of the Protective Estate Act, 1983". 5 I will interpolate that the first defendant is the plaintiff's sister and the second defendant is the Protective Commissioner. 6 The third order sought was for overdue and/or withheld monies to be paid to the plaintiff for the living allowance on behalf of the protected person. 7 Orders 4 to 7 were in like plight. Order 8 was "that the financial management be solely the responsibility of the Plaintiff, without any involvement of the First or Second Defendants, as both Defendants have not ethically satisfied the requirements of such a position/function as set out in the Supreme Court Directions and Authorities dated 25 November, 1999." 8 Order 9 was that the plaintiff remain and continue to be the sole carer of (the protected person). Order 10 was damages for home invasion on 2 May 2000; and Order 11 was for costs. 9 The history of the matter should be noted. 10 On 24 May 1996, the Guardianship Board on the application of the first defendant made an order that the estate of the protected person be subject to management under the Protected Estates Act 1983, and that the management of the estate be committed to the Protective Commissioner. Powers of Attorney made in favour of both the plaintiff and the first defendant had existed prior to this order. 11 An application was made to have this order revoked but, on 29 October 1996, the Guardianship Board appointed the plaintiff and the first defendant as joint financial managers. 12 That order was reviewed by the now Guardianship Tribunal on 7 September 1998, discharging the joint managers and committing the management of the estate once more to the Protective Commissioner. 13 However in the next year on 9 November 1999 the Protective Commissioner was again dismissed as manager and the first defendant was appointed sole proper financial manager. Additionally on that day the Guardianship Tribunal appointed the Public Guardian as the guardian with accommodation powers for the period of twelve months. 14 The statement of these orders shows the various swings that have been made in orders protecting the protected person over the last five years and really they have not been at all conducive to any stability. They are understandable because of the great passion with which both the plaintiff and the first defendant have acted with respect to what should happen to their mother. 15 A major sticking point was that the protected person owns a unit at Dee Why. At least during 1998 the son of the plaintiff was occupying the unit together with the protected person, apparently on a "rent free" basis, and declined to make any contribution. The plaintiff always maintained that her son was necessary for the care of her mother because she, the plaintiff, could not be in the unit twenty four hours a day and there was a requirement that someone be there. It is recognised in the authorities, see particularly Countess of Becktive v FCT (1932) 47 CLR 417, that a carer for a protected person is not accountable for collateral benefits that they may receive because of the care. However, the benefit being obtained apparently by the son appeared to be out of proportion to what was reasonable in all the circumstances. 16 The Guardianship Tribunal's order of 9 November 1999 seems to have expired twelve months after it was made. Accordingly, at the time when the summons was filed there was nothing for this Court to discharge or effect. 17 Thus, when the summons was called on before me in December 2000, the Court endeavoured to get to the heart of the matter. An order was made on 11 December 2000 to provide for some $4,000 to be made available to the plaintiff for care of the protected person. The matter then was concerned with the well-being of the protected person and the flow of money to her and where she should live. 18 On 6 February 2001 I gave reasons for judgment. I was probably fairly weak in those reasons in that I indicated certain views and set out plainly that before a final decision could be made the Court would need to have an independent assessment of the pros and cons of the protected person living in the Dee Why unit or some other place, or living in a nursing home. I said (page 9) that there are a number of people who are specialised in providing advice in the geriatric area and it would be most helpful if there was some independent report rather than one sister saying her mother would be better off living at her home, and the other sister saying she should live in a nursing home. I also said it would be very useful to have some other material. 19 However, on 7 May 2001none of that material was provided. The material I did have mainly from the first defendant, was that if the protected person continued to live in the Dee Why unit there would be a deficiency of at least $1,000 a year and as much as $6,000 a year and that could not be funded for very much longer. I said (page 2), referring to my February judgment: "Last time I noted that the plaintiff said that she may be willing to top up the deficiency but that has not been taken any further since February." 20 I said that there was no use adjourning the matter any further and I must make a decision. I said that generally I agree with the plaintiff that it is appropriate that ladies of the age of ninety should be able to live in their own home, but I then said: "…however, in the light of the deficiency, and in the absence of the evidence I asked for, there is only one possible solution and that is that the unit has to be sold and I would direct the Protective Commissioner accordingly." 21 That direction, of course, was finishing off the request for directions that had been made as matter number G266/96 that I referred to earlier. 22 I should just note this before dealing with the summons itself: the Court Visitor made a report. It is not the usual practice to make that report available to the parties. Indeed, historically the report of the Court Visitor was not even seen by the then Master for Lunacy; see Theobald, The Law Relating to Lunacy (Stevens, London, 1924) p 128. However, the Court has a discretion and in this matter I think it would be difficult for the parties to address what appeared to be the real practical issue between them unless they had access to the report and I made it available. Although there is a disinclination to make these reports available the Judge will make it available where he or she considers it is in the interests of justice to do so. 23 The laws respecting incapable persons in this State are fragmented. The intention of the legislature is that, prima facie, they should be dealt with before the Guardianship Tribunal which is supposed to be a Tribunal which can deal with the matter less formally and less expensively than the Supreme Court. However, the Guardianship Tribunal has very limited powers and has only statutory powers. 24 The Protective Commissioner occupies a strange position. He is an officer of the Court for certain purposes. He exercises the power of the Court for various purposes such as, for instance, the power to authorise solicitors to act for alleged incapable persons in litigation, and the Deputy Registrar hearing matters in this List also acts as the person giving the Protective Commissioner directions to Private Managers. Technically this causes problems but in practice it is a good practical solution to the problems. 25 However, the Protective Commissioner also has duties as a statutory officer which are given to him directly under the Protected Estates Act, or sometimes because of an order made by the Guardianship Tribunal. It is sometimes difficult to work out what particular power the Commissioner is exercising. 26 On top of all this structure is the Supreme Court. The Supreme Court is given powers by the Protected Estates Act and other legislation, but it also has inherent powers as parens patriae and as such has the care of all persons who need its protection. 27 Accordingly, when the present summons was issued, as I have said clearly as a response to what the Protective Commissioner had done, it seems to me appropriate whilst the parties were before the Court to exercise inherent power to hear what the parties wanted to say about the Protective Commissioner's proposals and to make whatever orders were necessary for the well-being of the protected person and her property. 28 I tried to see that the incapable person could live where she wanted to live or in her own unit but I was withheld any meaningful information, save that it would be a continued drain on her resources to do so. Accordingly I made the order. 29 Today, as the matter has come back from the Court of Appeal, it is necessary to deal with particular paragraphs in the summons and finally dispose of the summons, and I will do that tomorrow, ie make final orders. 30 However, it emerges today that after I made the order on 7 May the protected person was assisted by the first defendant to move out of the Dee Why unit into property in the South Illawarra region. The plaintiff calls that "abduction". The first defendant says it was not abduction but her solicitor says it was done because the first defendant reasonably believed that the protected person would be used as a pawn in a battle to prevent the unit being sold. 31 The matter is back before the Guardianship Tribunal on 28 June 2001. That is the body to which the primary jurisdiction is conferred. I do hope on that day the Tribunal will, quoting Shakespeare, "be bloody bold and resolute" because it would seem a final solution which people must adhere to must be reached. That is far preferable to see-sawing between one party and the other for years. 32 On the material before me there is no alternative but to sell the unit, regrettable though that is. If there is other material put before the Guardianship Tribunal, perhaps some other decision should be made but a definite solution has to be made. 33 However, pending the hearing by the Guardianship Tribunal on 28 June, or if the Guardianship Tribunal wishes to refer the matter back to the Court for review by the Court, the Court in its inherent jurisdiction must make some decision as to where the protected person is to live. I have made it quite clear that in my view she has to be in some pleasant accommodation and have access to both her daughters. If there is some apprehended violence order preventing one of the daughters from having access to her mother at a particular spot, then I think the Court should grant injunctions to make sure the mother is not in that particular spot. 34 In view of past conduct the parties should be assured that the Court will police such injunctions with vigour, ie, anyone who breaks that injunction usually will spend twenty eight days in gaol for any first offence and three months for any subsequent offence. I am sorry to say that in a family dispute, but a firm decision must be made. I will stand that aspect of the matter over to tomorrow to make appropriate orders, including the making of injunctions, although I hope - though I have little confidence - that the parties might be able to reach some agreement in the meantime. 35 Going back to the summons, the claims made in paragraphs 1 and 2 are really incomprehensible. I asked the plaintiff where she got the reference to 76.27. It appears that she is referring to Part 76(27) of the Supreme Court Rules. That Rule allows the Protective Commissioner to remove a manager. The primary jurisdiction under that Rule is conferred on the Protective Commissioner. Whilst the Judge will review a decision made under that Rule if it is flawed, the Court holden before a Judge does not exercise primary jurisdiction. As the Protective Commissioner has not made any determination under the Rule, nor has he improperly declined to make a determination thereunder, there is no reason for the Judge to enter into the fray. 36 So far as any order is concerned about removing the financial manager, there is probably no financial management order in place at the moment. However, if there were such an order or if the Protective Commissioner has failed to make a determination on the matter, on the evidence I have heard to date I would not disturb it. It would seem to me from the evidence I have heard that the first defendant is a perfectly capable financial manager. The only problem in the administration is ill feeling between the sisters, which is probably the fault of both of them. 37 So far as amounts owing to the plaintiff for care, the material does not sufficiently indicate that there has been any dereliction and I do not consider that I should make any order. 38 So far as damages for home invasion are concerned, there is insufficient material to make any order. 39 Accordingly, in my view the summons should be dismissed. However, at the moment I will stand the matter over until tomorrow so that before I finally dispose of the summons I can make some protective orders as to the accommodation of the protected person and access to her by her daughters, at least up until 28 June 2001.

[NB on 8 June 2001, Young CJ in Eq accepted undertakings

from both parties aimed at preserving the protected person's

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