Supreme Court New South Wales Medium Neutral Citation: Re W and L (Parameters of Protected Estate Management Orders) [2014] NSWSC 1106 Hearing dates: - Decision date: 14 August 2014 Before: Lindsay J (in Chambers) Decision: 1. In the case of W: Orders for adjournment of an application for appointment of a protected estate manager until after determination of a claim for personal injury compensation. 2. In the case of L: Orders for revocation of management orders notwithstanding that the protected person remains incapable of managing his affairs. Catchwords: MENTAL HEALTH - Guardians, committees, administrators, managers and receivers - Appointment - Application for appointment of a protected estate manager - Application made in anticipation of personal injury compensation - Protected person without other property - Application adjourned until after resolution of compensation litigation MENTAL HEALTH - Guardians, committees, administrators, managers and receivers - Appointment and removal - Management and administration of property - Application for revocation of management orders - Protected person remains incapable of managing affairs - Protected person without property - No utility in continuation of management orders notwithstanding that the protected person is incapable of managing affairs - Revocation of management orders Legislation Cited: NSW Trustee and Guardian Act 2009 NSW Corporations Act 2001 (Cth) Protected Estates Act 1983 NSW Supreme Court Act 1970 NSW, s23 Interpretation Act 1987 NSW Guardianship Act 1987 NSW New South Wales Act of 1823, 4 Geo IV c96 Australian Courts Act 1828, 9 Geo IV c83 Cases Cited: AC v OC (a minor) [2014] NSWSC 53 at [45] - [47]. Ex parte Fermor (1821) Jac. 404 at 404; 37 ER 903. In re Gordon (1847) 2 Ph 242; 41 ER 935. RAP v AEP [1982] 2 NSWLR 508 at 512 C - D Ability One Financial Management Pty Ltd v JB by his Tutor AB [2014] NSWSC 245 at [182]. JMK v RDC and PTO v WDO [2013] NSWSC 1362 at [53] - [56]. M v M [2013] NSWSC 1495. Countess Bective v Federal Commissioner of Taxation (1932) 47 CLR 417 at 420 - 423. David by her Tutor the Protective Commissioner v David (1993) 30 NSWLR 417. Willett v Futcher (2005) 221 CLR 627 Richards v Gray [2013] NSWCA at [152] - [160]. Re Gouder [2005] NSWSC 1116 at [5], Holt v Protective Commissioner (1993) NSWLR 227 at 237G-238A. Re Q (Young J, 29 May 1985, unreported). Re C [2012] NSWSC 1097 at [64]-[66]. In Re WM (a person alleged to be of unsound mind) (1903) 3 SR (NSW) 552. PB v BB [2013] NSWSC 1223 at [29]. In Re WM (1903) 3 SR (NSW) 552 at 565 In re Clarke [1898] 1 Ch 336 at 340-342. Re an Alleged Incapable Person (1959) 77 WN (NSW) 156. Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd (2000) 200 CLR 591 at 599 - 600 [2], 627 [94], 652 - 653 [162] and 669-670 [211]. Re Eve (1986) 31 DLR (4th) 1 at 16-17; [1986] 2 S.C.R. 388 at 410-411. Secretary, Department of Health and Community Services v JWB and SMB (Marion's Case) (1992) 175 CLR 218 at 258-259. CCR v PS (No 2) (1986) 6 NSWLR 622 at 640 Ridgeway v Darwin (1802) 8 Ves.65; 32 ER 275. Ex parte Cronmer (1806) 12 Ves. 445; 33 ER 168 at 170 - 171. Sherwood v Sanderson (1815) 19 Ves. 280; 34 ER 521. In re Holmes (1827) 4 Russ 182; 38 ER 774. MS v ES [1983] 3 NSWLR 199 at 202 C - G. Texts Cited: H.S. Theobald, The Law Relating to Lunacy (Stevens & Sons, London, 1924) M. Davies, A. S. Bell and P.L.G Brereton (eds), Nygh's Conflict of Laws in Australia (LexisNexis Australia, 8th ed, 2010 P.L.G. Brereton "Acting for the Incapable - A Delicate Balance" (2012) 35 Australian Bar Review 244 J.M. Bennett, A History of the Supreme Court of NSW (Law Book Co, Sydney, 1974). Category: Principal judgment Parties: Re W Plaintiff: Father of W Defendant: W Re L Plaintiff: Mother of L (and Manager of his estate) Defendant: L (a protected person) Representation: Re W Solicitors for the plaintiff: Lamrocks, Penrith. Re L Solicitors for the plaintiff: Slattery Thompson, Earlwood. File Number(s): Re W: 2014/00178482 Re L: 2014/00036701 Judgment INTRODUCTION 1This judgment examines, from two contrasting perspectives, principles governing management of the estate of a person who, because of an inability to manage his or her own affairs, is in need of an exercise of the Court's protective jurisdiction. 2One case (that of W) concerns an application for the appointment of a protected estate manager in anticipation of recovery of personal injury compensation, the only property of substance presently likely to be held by the subject person. 3The other (relating to L) concerns an application for revocation of management orders (referable to a person with a continuing inability to manage his affairs) because compensation awarded to him for personal injuries has been exhausted, and there is presently no other property of substance to be managed. THE NATURE OF THE PROTECTIVE JURISDICTION 4The protective jurisdiction of the Court exists for the protection of the person, and property, of a person who, incapable of managing his or her affairs, is in need of protection. 5Whatever is done, or not done, in exercise of the jurisdiction is to be done, or not done, for the benefit, and in the interests, of the person in need of protection. PARAMETERS OF AN ORDER FOR PROTECTED ESTATE MANAGEMENT 6The protective jurisdiction is not dependant for its existence, or exercise, upon the presence of property; but an entitlement to property residing in a person incapable of managing his or her affairs may provide an occasion upon which, to protect the interests of that person, the jurisdiction can be called into service: AC v OC (a minor) [2014] NSWSC 53 at [45] - [47]; Re Eve (1986) 31 DLR (4th) 1 at 14 and 16-17; [1986] SCR 388 at 410-411. 7The means by which the Court endeavours to protect the property of a person in need of protection include an order for the appointment of a person, or persons, to manage the estate (property) of the person under the direction of the Court and (in relation to an order made under the NSW Trustee and Guardian Act 2009 NSW) the NSW Trustee and Guardian ("the NSW Trustee"). 8A management order is a means to an end, not an end in itself. 9Even if a declaration of incapacity has been made (eg, under s41(1)(a) of the NSW Trustee and Guardian Act 2009) a person who lacks the capacity to manage his or her affairs in particular respects, but is otherwise able to do so, may be left to manage what he or she can self-manage: NSW Trustee and Guardian Act, ss40 and 71(2). Freedom of decision, freedom of action, engagement with community and self-reliance are important objects of the NSW Trustee and Guardian Act: s39. 10The same is true of the general law. In the 19th century practice of the English Lord Chancellor that continues to inform the "inherent" jurisdiction of this court, a "lunatic (by commission so found)" could be left to manage his or her own affairs, so far as able, by an order granting him or her liberty to engage in a particular class of business, coupled with directions: eg, Ex parte Fermor (1821) Jac. 404 at 404; 37 ER 903; In re Gordon (1847) 2 Ph 242; 41 ER 935. As summarized by H.S. Theobald, The Law Relating to Lunacy (Stevens & Sons, London, 1924) at page 41: "The appointment of a committee of the estate [ie, a protected estate manager] is not essential. In a proper case a lunatic so found may be left to manage his own estates [property]". 11On an assessment of what is, or may be, a "proper case" for a "protected person" (defined, by s 38 of the NSW Trustee and Guardian Act, as a person in respect of whom an order has been made under chapter 4 of the Act or under the Guardianship Act 1987 NSW for his or her estate to be subject to management under the NSW Trustee and Guardian Act), or any other person in need of protection, to manage his or her own affairs, an important consideration is the practical utility of a manager vis-à-vis property required to be managed. 12Occupation of the office of a protected estate manager is not, in theory, contingent upon possession of property under management. 13A protected estate manager occupies a unique office as a publicly appointed, and publicly regulated, agent of a protected person: Ability One Financial Management Pty Ltd v JB by his Tutor AB [2014] NSWSC 245 at [166] - [175]. 14The Court can, as a matter of jurisdiction, appoint a manager to a presently unpropertied estate in anticipation of a protected person's receipt of property for management. 15A manager does not cease to hold office as a protected estate manager merely because property presently under management is exhausted or otherwise rendered non-existent. 16That said, the practical utility of the office of a protected estate manager does generally depend upon the existence of property under management. Without property, or at least the prospect of property, there is no "estate" to manage. Without property, there is no fund from which to allow a manager, as an accounting party, to draw remuneration, and indemnification for expenses, to which the manager may be entitled: Ability One Financial Management Pty Ltd v JB by his Tutor AB [2014] NSWSC 245 at [74] - [77]. 17The utility of a management order must, like other features of the protective jurisdiction, be measured by reference to whether it is of benefit to, and in the interests of, the protected person. 18Ordinarily, an absence of property under management is likely to tell decisively against the making of management orders, or decisively in favour of an order for revocation of management orders. 19The obligations of a manager of a protected estate (formerly known as a "committee of the estate") are distinct from those of a guardian (formerly known as a "committee of the person"), though, in a particular case, there may be some intersection in the performance of the respective obligations of each office: Theobald, The Law Relating to Lunacy, pages 40 - 46. See, for example, Re C [2012] NSWSC 1097 at [46] - [69]. 20Each case must, of course, be considered on its own facts, including not only actual facts presently known but also, so far as they can be known, prospective developments. 21The management of one person's affairs by another, and administration of the Court's protective jurisdiction generally, must, almost inevitably, be attended by a need to comply with formal requirements. 22The Court endeavours to ensure that the practice of its Protective List is directed towards administration of the jurisdiction without strife in the simplest and least expensive way: Theobald, The Law Relating to Lunacy , page 382; RAP v AEP [1982] 2 NSWLR 508 at 512 C - D; PB v BB [2013] NSWSC 1223 at [10] and [14] - [16]; M v M [2013] NSWSC 1495 at [11] - [13], [20] and [50] (f) and (m) - (p). 23Upon consideration of how to administer the jurisdiction in this way, care needs to be taken not to subordinate the interests of a person in need of protection to the convenience of others, including persons who, from time to time, might be engaged in management of their affairs or in advancement of their interests. 24This requires an exercise of judgement by the Court, often in a state of imperfect knowledge about the affairs of a person in need of protection, based on accumulated experience in other cases. AN APPLICATION FOR A MANAGEMENT ORDER IN ANTICIPATION OF RECEIPT OF AN AWARD OF COMPENSATION FOR PERSONAL INJURIES (Re W) 25By a summons filed in this Court on 16 June 2014 the plaintiff (the father of the defendant) seeks, against the defendant W, orders of the type for which s41 of the NSW Trustee and Guardian Act 2009 provides: (a)a declaration that W is incapable of managing her affairs: s41(1)(a). (b)an order that the estate of W be subject to management under the NSW Trustee and Guardian Act: s41(1)(a). (c)an order that a named licensed trustee company be appointed as manager of the estate of W: s41(1)(b). 26Nothing presently turns on the identity of the proposed manager. It is a "licensed trustee company" within the meaning of the Corporations Act 2001 Cth, s 601 RAA, and is governed by Chapter 5D of that Act. In the abstract, prima facie it is, accordingly, a "suitable person" for the appointment as a manager within the meaning of the NSW Trustee and Guardian Act: Ability One Financial Management Pty Ltd v JB by his Tutor AB [2014] NSWSC 245 at [182]. Whether it is in fact suitable for appointment to management of the estate of W, or any other protected estate, requires an assessment of the facts of the particular case at the time when a manager is to be appointed. 27W was born in 1989. She is presently aged 25 years. She lives with the plaintiff, her father, who cares for her as a single parent. 28There is no evidence before the Court suggesting that notice of the present application has been given to W's mother or other members of her family. It may be that the Court will dispense with any requirement for such notice, but a dispensation order of that character is not lightly, or routinely, made. 29W was involved in a serious motor vehicle collision in 2011, as a result of which she suffered brain damage and related injuries. She has little property. Her only income is a Disability Support Pension. 30On 22 April 2014, W (by her father acting as her tutor) filed a statement of claim in the District Court of NSW claiming, in negligence, damages for personal injuries suffered in the motor vehicle collision. 31The defendant against whom that claim has been made has admitted liability, leaving the quantum of W's unliquidated claim for damages to be assessed. 32The District Court has listed its proceedings for a status conference on 30 October 2014. 33The solicitor for the plaintiff (W's father) anticipates that the trial of the District Court proceedings will be held early in that Court's 2015 term, no less than 6 months or so in the future. 34Affidavits filed in support of the plaintiff's Protective List summons include two medical reports evidently prepared in support of W's claim for personal injury compensation. One is dated 31 October 2013. The other is dated 5 November 2013. They may be updated, or contested, in the compensation proceedings. 35The affidavit sworn by the plaintiff, personally, in support of the summons (sworn on 6 June 2014, but evidently prepared before the commencement of the District Court proceedings) includes a paragraph to the following effect: "In the event that [W] does receive significant lump sum compensation, I have significant concerns regarding her ability to manage her financial affairs." 36This, and other features of the case, suggest that: (a) but for the prospect of an award of "significant" compensation being made in her favour, there would be no necessity for, or utility in, the making of orders for management of W's estate, by a licensed trustee company, as a protected person; and (b) management orders are sought from this Court, at this stage, largely for the convenience of the solicitor having carriage of the District Court proceedings or, perhaps, to pre-empt a contest in the District Court about the nature or extent of W's injuries or the compensation to which she may be entitled. 37At the interface between protective and compensation proceedings, vigilance is required lest non-adversarial, protective proceedings are subordinated to the demands of the conduct of personal injury compensation litigation, the dynamic of which can be antithetical to an exercise of the protective jurisdiction. 38As presently advised, I am not persuaded that it would be for the benefit, or in the interests, of W to make management orders in advance of the determination of the litigation. 39Absent management orders, the District Court proceedings are being conducted by the plaintiff, as tutor for W. There is nothing in the evidence to suggest that he is unable to perform that role, or that the services of a licensed trustee company are required for the conduct of the litigation. 40There is no suggestion at all that the conduct of the proceedings requires a protected estate manager, or a receiver, as distinct from merely a tutor authorized by rules of court (Uniform Civil Procedure Rules 2005 NSW, Part 7 Division 4, rr 7.13 - 7.18) to conduct the proceedings on behalf of W. This case is not in that respect similar to the protective proceedings that gave rise to R v P (2001) 53 NSWLR 664 at 666 [4] - 669 [18] and 683 [63] - [64]. W's father appears well able to provide instructions for the conduct of the District Court proceedings. Cf, P.L.G. Brereton "Acting for the Incapable - A Delicate Balance" (2012) 35 Australian Bar Review 244. 41If management orders were to be made now, the effect of those orders, as sought, would probably be to take the conduct of the District Court proceedings out of the hands of the plaintiff and, subject to the directions of the NSW Trustee and this Court, to place them in the hands of the protected estate manager: NSW Trustee and Guardian Act, s 71; David by her Tutor the Protective Commissioner v David (1993) 30 NSWLR 417; Uniform Civil Procedure Rules 2005 NSW, rule 7.15. The summons seeks no directions relating to the conduct of the District Court proceedings consequent upon the appointment of a protected estate manager. 42The evidence adduced in support of the summons does not address, in any substantial way, factors bearing upon forensic decisions that have been made, or are likely to be required to be made, in the conduct of the District Court proceedings. The affidavit of the prospective manager, verifying its consent to appointment, and its intention to claim remuneration for service as a manager, provides no evidence of any familiarity with, or strategy for, the conduct of the proceedings. 43The nominated manager may well be suitable for appointment after the completion of the District Court proceedings when, the plaintiff hopes, there will be need of a funds manager. However, the evidence does not permit a finding that it is presently suitable for appointment as manager of W's estate, at a time when W's claim for compensation has yet to be fully litigated. I am not prepared to infer, merely from the status of the plaintiff's nominee as a licensed trustee company, that it is familiar enough with the proceedings to be willing, able, and sufficiently informed of what is required, to take over management of the litigation. 44Viewed as a whole, the evidence adduced in support of the summons invites the observation that the making of orders for management of W's estate as a protected estate is regarded, on the plaintiff's side of the record, as: (a) merely an incident of the efficient conduct by the plaintiff's solicitor of a personal injury claim; and (b) subordinate to questions that might arise in the conduct of such a claim. 45This is not, manifestly, a case in which there is a need for, or utility in, placement of the cart before the horse. 46Absent some special circumstance, if management orders are to be made affecting W's estate they should be made when the District Court proceedings have been determined. No reasoned case has been made of a need for an exercise of protective jurisdiction in aid of the District Court proceedings. 47 Evidence in support of a claim for funds management expenses as part of the District Court proceedings (sanctioned by Willett v Futcher (2005) 221 CLR 627 and Richards v Gray [2013] NSWCA at [152] - [160]) does not require earlier appointment of a protected estate manager. 48Without a demonstrated need for the appointment of a protected estate manager to conduct the litigation, without information about the role proposed to be played by a protected estate manager in the conduct of the litigation, and without precise knowledge of fees proposed to be charged by a protected estate manager for the conduct of the litigation, the Court should be slow to involve in contested proceedings for personal injury compensation an entity which has, or may have, a vested commercial interest (which may differ from that of the person in need of protection) in the outcome of those proceedings. 49Decisions made in the conduct of personal injury compensation claims on behalf of a person in need of protection must be taken (for the benefit, and in the interests, of the individual) independently, and manifestly independently, of the commercial interests of a business entity that has been appointed, or aspires to be appointed, as manager of the individual's estate. 50If there is a need for a professional estate manager in the conduct of personal injury compensation proceedings on behalf of a person in need of protection, the prudent course may be to appoint such an entity as a receiver (in exercise of jurisdiction identified in JMK v RDC and PTO v WDO [2013] NSWSC 1362 at [53] - [56]) pending determination of the proceedings, reserving questions about the identity of any protected estate manager until the size and nature of the estate, and the needs of the person measured against that estate, are better known. 51The appointment of a protected estate manager is not a mere formality. Nor is the selection of a manager. Although due regard is had to the views of family and carers of a protected person, the protective jurisdiction is not a "consent jurisdiction" or anything of the like: M v M [2013] NSWSC 1495 at [50]. 52One of the factors that may bear upon the identity of any manager appointed to manage W's estate might be the amount of any compensation awarded to her: Holt v Protective Commissioner (1993) NSWLR 227 at 242E and 243D; M v M [2013] NSWSC 1495 at [50] (g) and (m) 53In making decisions about W's welfare, this Court should, moreover, be entitled to the benefit of evidence that may emerge as material in the conduct of the District Court proceedings. 54The appropriate orders, for the present, are the following: (1)Order that the Summons be listed before the Protective List Judge, for directions or hearing as the nature of the case may require, on 16 March 2015. (2)Note that related proceedings (numbered - - - in the - - - Registry of the District Court of New South Wales) have yet to be determined, and are presently likely to be the subject of a trial listed for early in 2015. (3)Reserve liberty to apply to the Protective List Judge generally. (4)Reserve all questions of costs. REVOCATION OF MANAGEMENT ORDERS AFFECTING A PROTECTED PERSON STILL INCAPABLE OF SELF-MANAGEMENT (Re L) 55L became a protected person when, on 30 July 2003, in proceedings numbered 27 of 2003 in the Protective List, the Court, on application of his mother, made a declaration that he was incapable of managing his affairs, and an order that she be appointed to manage his estate, pursuant to the Protected Estates Act 1983 NSW. 56The Protected Estates Act 1983 was repealed, and replaced, by the NSW Trustee and Guardian Act 2009, with effect from 1 July 2009. 57The declaration and orders made against L under the Protected Estates Act correspond, in form and substance, with those subsequently made against W under the NSW Trustee and Guardian Act. Section 13(1) of the 1983 Act became s41(1)(a) of the 2009 Act. Section 22 of the earlier Act became s41(1)(b) of the later Act. 58The office of the Protective Commissioner (referred to in the Protected Estates Act) was subsumed in that of the NSW Trustee under the NSW Trustee and Guardian Act: M v M [2013] NSWSC 1495 at [13]. 59L was born in 1968 with Down's Syndrome. He is presently aged nearly 46 years. He has never been, and in all likelihood never will be, capable of managing his own affairs. He has remained, at home, in the care of his parents. 60L was hit by a motor vehicle while crossing a road on 17 February 1993. He suffered injuries for which he received compensation (of approximately $166,000 net of expenses), in proceedings conducted by his father acting as his tutor, in the District Court of NSW. 61In the subsequent Protective List proceedings culminating in the making of management orders, L's mother was the plaintiff, and he was named as the defendant, with his father named as his tutor. 62The only property of substance L has ever owned has been the compensation moneys awarded to him by the District Court. 63Those moneys have been spent. The NSW Trustee is satisfied (to a standard of accounting consistent with Countess Bective v Federal Commissioner of Taxation (1932) 47 CLR 417 at 420 - 423) that they have been applied for the benefit of L, and that his family continues to care for him. 64In substance, L's estate now comprises only the periodic social welfare payments (a disability pension) he receives from the Commonwealth agency, Centrelink. 65By a summons filed on 5 February 2014 (in the current proceedings numbered 2014/00036701), L's mother seeks an order that the management orders of 30 July 2003 be "rescinded". L is the defendant named in the summons. 66The relief claimed in the summons is sought, squarely, on the basis that, the property under management having been substantially consumed, the management orders no longer serve a useful purpose despite the fact that L continues to be unable to manage his own affairs. 67If the relief sought in the summons is to be granted, it probably must be granted by an exercise of the Court's inherent jurisdiction, or the jurisdiction conferred on the Court by the Supreme Court Act 1970 NSW ("SCA"), s23. 68That is because: (a)the only express power for the revocation of management orders contained in the NSW Trustee and Guardian Act 2009 is that contained in s86 of the Act. (b)section 86 empowers the Court to revoke management orders on an application by a protected person if the Court is satisfied that the protected person is capable of managing his or her affairs. (c)L lacks the mental capacity to make a s86 application and does not purport to do so. (d)even if the Court were to take the view that a s86 application could be made by a tutor acting on behalf of a protected person (as contemplated, in a different context, in Re Gouder [2005] NSWSC 1116 at [5]), the second limb of s86(1) cannot be met. The Court cannot be satisfied that L is capable of managing his affairs. The contrary is the fact. He remains incapable. (e)although other provisions of the NSW Trustee and Guardian Act (particularly, ss 40, 64, 65 and 71) might be deployed to modify or ameliorate the operation of management orders, the presence of s86 in the Act as the only express power of revocation of such orders militates against a construction of the Act that locates another revocation power in an implication without resort to the Court's inherent or SCA s23 jurisdiction. (f)although s47 of the Interpretation Act 1987 NSW provides an express legislative warrant for removal and replacement of a protected estate manager (Holt v Protective Commissioner (1993) NSWLR 227 at 237G-238A; M v M [2013] NSWSC 1495 at [30] - [33]), it provides no clear foundation for revocation of management orders (including a declaration of incapacity) in toto. 69It is not necessary, in the current proceedings, to explore the outer limits of the express terms of the NSW Trustee and Guardian Act or s47 of the Interpretation Act. Resort can, and should, be had to the Court's inherent jurisdiction and SCA s23 jointly and severally. 70Confronted by a need to form a view, not only about the facts of the case, but also about the proper construction and practical operation of the NSW Trustee and Guardian Act, and the availability and scope of the Court's jurisdiction to grant relief of the nature sought in the summons, I gave a direction (on 2 June 2014) that the NSW Trustee, on notice to the plaintiff (L's mother), provide a report to the Court on a series of questions. 71The NSW Trustee complied with that direction by filing a responsive Report on 16 June 2014. These reasons for judgment have been prepared with the benefit of that Report. 72It is sufficient for present purposes to record that, having confirmed the accuracy of the underlying facts, the NSW Trustee (by Catherine Phang, Principal Legal Officer) submitted that "in this case it is in the interests of and for the benefit of [L] for the Court to use its inherent jurisdiction to revoke the orders made on 30 July 2003 as: (a)[L's] estate now consists only of the Centrelink payment [he periodically receives]. (b)[L's mother] can continue to be involved to [assist L] in managing the Centrelink payment without the need for a financial management order. (c)there appears to be a loving and caring family relationship [between L, his parents and his siblings] such that there does not appear to be any real risk that [L] will be disadvantaged in the conduct of his affairs or that money or property may be dissipated". 73In submissions leading to that submission, the NSW Trustee drew attention to the width of both the Court's inherent jurisdiction (preserved by the SCA, s22) and the jurisdiction conferred on the Court by s23 of that Act. 74Section 23 provides that "[the] Court shall have all jurisdiction which may be necessary for the administration of justice in New South Wales". 75It has been recognized as a source of protective jurisdiction: Re Q (Young J, 29 May 1985, unreported); Re C [2012] NSWSC 1097 at [64] - [66]. 76In Re Q, Young J treated the Court's inherent jurisdiction and that derived from SCA s23 as convergent, and described that blended jurisdiction in terms similar to, but perhaps more expansive than, the early 19th century cases associated with Lord Elden which (as explained in PB v BB [2013] NSWSC 1223 at [38] - [55]) recognized the Court's protective jurisdiction as extending to any person unable to manage his or her own affairs: Ridgeway v Darwin (1802) 8 Ves.65; 32 ER 275; Ex parte Croamer (1806) 12 Ves. 445; 33 ER 168 at 170 - 171; Sherwood v Sanderson (1815) 19 Ves. 280; 34 ER 521 and In re Holmes (1827) 4 Russ 182; 38 ER 774. That line of cases was recognized as representative of NSW law, as received from England, by Powell J in MS v ES [1983] 3 NSWLR 199 at 202 C - G and CCR v PS (No 2) (1986) 6 NSWLR 622 at 634G et seq. 77In Re Q, Young J's observations included the following: "[Section 23 of the Supreme Court Act or an inherent power no less ample] is the source of power of this court to make whatever order it considers appropriate for the protection and good management of the property of any person in New South Wales who is not fully able to take charge of his or her own property whether that disability comes about from infancy or mental illness or any other cause whatsoever... If a question arises as to whether this court has jurisdiction to make orders of a protective nature, that question is not to be answered by looking to particular heads of power conferred by statute but rather to s23 of the Supreme Court Act and the inherent power of this court to make plenary orders to protect the poor, the elderly, the children and the weak..." 78In Re C, White J (at [66]) treated SCA s23 as the source of the Court's inherent, parens patriae jurisdiction, and (at [56] and [62] - [67]) found there jurisdiction in the Court to remove a guardian or a financial manager appointed to that office by the Guardianship Tribunal (now the Guardianship Division of the Civil and Administrative Tribunal, "NCAT"). The circumstance that the Guardianship Act 1987 NSW and the NSW Trustee and Guardian Act conferred similar, express powers on the Tribunal (but not the Court) did not deprive the Court of its broader, inherent jurisdiction. 79Nothing in the NSW Trustee and Guardian Act operates to deprive the Court of its inherent, protective jurisdiction. A legislative extinguishment of that jurisdiction would require clear words (In Re WM (a person alleged to be of unsound mind) (1903) 3 SR (NSW) 552) not present in the NSW Trustee and Guardian Act. 80The Act is, rather, predicated on the Court's retention of its inherent jurisdiction. 81That jurisdiction is derived from the Imperial, British Legislation which, first, constituted the Court ("the New South Wales Act" of 1823, 4 Geo IV c96, s9, and clause 18 of "the Third Charter of Justice", letters patent dated 13 October 1823, promulgated pursuant to that Act) and, secondly, clarified the timing, terms and content of NSW's inheritance of English law (the Australian Courts Act 1828, 9 Geo IV c83, ss 11 and 24): J.M. Bennett, A History of the Supreme Court of NSW (Law Book Co, Sydney, 1974), chapter 7, especially pages 125 - 127; In Re WM (1903) 3 SR (NSW) 552 at 565. In my opinion, SCA s23 is an independent grant of power. 82SCA s23 supplements, but does not limit, the inherent jurisdiction preserved by SCA s22. 83The 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: PB v BB [2013] NSWSC 1223, citing Theobald, The Law Relating to Lunacy (1924) pages 362 - 363, 380 and 382; cf, In re Clarke [1898] 1 Ch 336 at 340-342. 84Section 39 of the NSW Trustee and Guardian Act points in the same direction by its adoption of general principles which reflect those long associated with an exercise of the Court's inherent jurisdiction: "39 General principles applicable to Chapter [4] It is the duty of everyone exercising functions under [chapter 4 of the NSW Trustee and Guardian Act, ss38 - 100] with respect to protected persons or patients to observe the following principles: (d)the welfare and interests of such persons should be given paramount consideration, (e)the freedom of decision and freedom of action of such persons should be restricted as little as possible, (f)such persons should be encouraged, as far as possible, to live a normal life in the community, (g)the views of such persons in relation to the exercise of those functions should be taken into consideration, (h)the importance of preserving the family relationships and the cultural and linguistic environments of such persons should be recognised, (i)such persons should be encouraged, as far as possible, to be self-reliant in matters relating to their personal, domestic and financial affairs, (j)such persons should be protected from neglect, abuse and exploitation." 85The inherent jurisdiction (compatibly with s39) is extremely wide: PB v BB [2013] NSWSC 1223 at [29], citing M. Davies, A. S. Bell and P.L.G Brereton (eds), Nygh's Conflict of Laws in Australia (LexisNexis Australia, 8th ed, 2010), para [31.1]. 86Its limits, and scope, have not been, and cannot be, defined. It is available to do whatever may be for the benefit of an incompetent person unable to care for himself or herself, and it is commonly invoked where there is need of a protective order uncontemplated by legislation: Re Eve (1986) 31 DLR (4th) 1 at 16-17 and 28-29; [1986] 2 S.C.R. 388 at 410-411 and 426 - 427, approved by the High Court of Australia in Secretary, Department of Health and Community Services v JWB and SMB (Marion's Case) (1992) 175 CLR 218 at 258-259. 87Although my attention has not been drawn to a reported case in which management orders have been revoked notwithstanding the continuing incapacity of a protected person, the NSW Trustee has brought to attention two unreported instances. 88In each of those cases (one in 2004, the other in 2010) the Protective List Judge of this Court, on a report by the Protective Commissioner or the NSW Trustee, approved revocation of management orders where, although there was no evidence of capacity for self-management, there was no practical utility in continuing the management orders, and it was in the best interests of the protected person that they be revoked. 89In all the circumstances, I am satisfied that the Court does have jurisdiction to revoke the management orders made on 30 July 2003 (as part of its inherent jurisdiction and, independently, by virtue of SCA s23) and that (for the reasons advanced by the NSW Trustee in its Report) it is in the interests, and for the benefit, of L that they be revoked. 90There can be no doubt about the standing of the applicant, the plaintiff, for revocation of L's management orders. She is his mother. With his father, she is his principal carer. She was the plaintiff in the proceedings leading to the making of the management orders now sought to be revoked, and the manager appointed by them. L continues to be a dependant member of his parents' household. If (as I assume) he has made no will, his parents would, if he were to die now, take his estate, if any, on an intestacy. 91Adopting the language of the NSW Trustee and Guardian Act as a formal measure of her standing vis-à-vis L as a protected person, L's mother is a person who has: (a) "a genuine interest" in decisions of the NSW Trustee, sufficient to allow NCAT to entertain an application for a review of them under s71(7)(d); and (b) a legitimate expectation of being consulted by the NSW Trustee by reference to its obligation, under s72, to consult relatives of a protected person. 92In any event, a stranger may apply for the appointment of a protected estate manager: Re an Alleged Incapable Person (1959) 77 WN (NSW) 156. The same should be held true vis-à-vis an application for revocation of management orders upon an exercise of the Court's inherent jurisdiction. Apart from consistency within the realm of protective jurisdiction, the law on this topic should conform to that governing an application for a writ of habeus corpus (or similar relief such as that now available under SCA s 69): Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd (2000) 200 CLR 591 at 599 - 600 [2], 627 [94], 652 - 653 [162] and 669-670 [211]. 93The question of standing ultimately returns to the rationale for the protective jurisdiction itself: the need for an accessible remedy for the protection of a person who, unable to manage his or her own affairs, is in need of protection. 94A practical safeguard on the availability of curial relief without any formal requirement for locus standii (independent of a proper case for orders serving the interests, and for the benefit, of a protected person) is the availability to the Court of assistance from the NSW Trustee and, in the case of an application by the NSW Trustee itself, the ability of the Court to invite assistance from a protected person's family, carers, friends and others. The Court's proceedings are essentially inquisitional rather than merely adversarial. 95By analogy with orders customarily made under s86 of the NSW Trustee and Guardian Act and incorporating orders falling within the powers conferred on the Court by s 64 of the Act, I make orders to the following effect: (1)Order that the declaration made on 30 July 2003 (in proceedings numbered 27 of 2003) that L is a person who is incapable of managing his affairs be revoked. (2)Order that the order made on 30 July 2003 (in proceedings numbered 27 of 2003) for the appointment of a manager of the estate of L be revoked. (3)Order that the estate of L be released from control of his mother as manager of his estate, and that she be discharged as manager. (4)Order that L's mother, as former manager of the estate of L, take such steps, in consultation with the NSW Trustee, as may be necessary or expedient to wind up the protected estate management of L's affairs in an orderly manner. (5)Order, pursuant to rule 36.4 of the Uniform Civil Procedure Rules 2005 NSW and s 64 of the NSW Trustee and Guardian Act, that these Orders take effect on the date that marks the expiry of 14 days from the date upon which a copy of the Orders is served on the NSW Trustee by the solicitor for L's mother (the plaintiff). (6)Note that no orders are made as to the costs of the proceedings, to the intent that each party pay his or her own costs. (7)Order that the solicitor for L's mother (the plaintiff), on or before 20 August 2014, serve a copy of these orders on the NSW Trustee (marked to the attention of Catherine Phang). 96I have taken the step of revoking the declaration of incapacity made on 30 July 2003 for the purpose of ensuring that the jurisdictional foundation for other management orders made on that date is removed. I have not, as is customary in s86 cases, made a declaration that L is a person capable of managing his affairs. Plainly, he is not. 97Revocation of the management orders cannot of itself prevent, or impede, an invocation of the Court's protective jurisdiction in aid of L should that be necessary or expedient in the future. What, if any, relief might be granted in the future must depend on the circumstances then prevailing. 98The "proper order" as to the costs of the current proceedings (in conformity with the practice of the Court in protective proceedings, as explained in CCR v PS (No 2) (1986) 6 NSWLR 622 at 640) is that there be no order as to costs. CONCLUSION 99Any decision about whether to make, or revoke, management orders affecting the property of a person incapable of managing his or her own affairs must, ultimately, be guided by an assessment of whether each particular order proposed is for the benefit, and in the interests, of the individual in need of protection. 100As in the cases considered in these proceedings, the Court may, from time to time, make or decline to make management orders, or decide or decline to revoke management orders, by reference to considerations of practical utility. 101The fact that a person is incapable of self-management necessarily engages the attention of the Court. It does not dictate a particular outcome. ********** 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: 14 August 2014