A v A - [2015] NSWSC 1778

Supreme Court

New South Wales

Medium Neutral Citation: A v A [2015] NSWSC 1778
Hearing dates: 16 November 2015
Date of orders: 27 November 2015
Decision date: 27 November 2015
Jurisdiction: Equity - Protective List
Before: Lindsay J
Decision:
(1) Order that an Application to revoke a protected estate management order and a tutorship order be dismissed.
(2) Order that no orders as to costs of compensation proceedings (in which the NSW Trustee acts as tutor for the applicant, an incapable person) be enforced against the NSW Trustee without the leave of this Court.
Catchwords:
PROTECTIVE JURISDICTION – Financial management order and tutorship order – Litigant in person – Incapable of managing affairs – Application for the Applicant, revocation of orders – Application dismissed

MENTAL HEALTH – Guardians, committees, administrators, managers and receivers - Appointment – Management of estate– Tutor in common law compensation proceedings – Meaning of incapacity for self-management
PRACTICE – NSW Trustee and Guardian Act – Protected estate manager – Tutor in common law compensation proceedings- Litigant in person – Incapable of managing affairs - Appointment of NSW Trustee as manager and tutor
Legislation Cited: Australian Courts Act 1828 (Imp)
Civil Procedure Act 2005 NSW
Civil Procedure Act 2005 NSW, section 56
Guardianship Act 1987 NSW
New South Wales Act 1823
NSW Trustee and Guardian Act 2009 NSW
Uniform Civil Procedure Rules 2005 NSW (UCPR)
Cases Cited: Ability One Financial Management Pty Limited and Anor v JB by his Tutor AB [2014] NSWSC 245 at [30]-[32], [48-[63]
Bobolas v Waverley Council [2012] NSWCA 126 at [60]-[62]
CAC v Secretary, Department of Family and Community Services (No. 2) [2015] NSWSC 344 at [15]-[16]
CCR v PS (No. 2) (1986) 6 NSWLR 622 at 640
CJ v AKJ [2015] NSWSC 498 at [22]-[43]
David by her tutor the Protective Commissioner v David (1993) 30 NSWLR 417 at 436E - 437C
Gibbons v Wright (1954) 91 CLR 423 at 434-438
GNM v ER [1983] 1 NSWLR 144 at 148C-149D
H v H [2015] NSWSC 837 at [27]-[37]
IR v AR [2015] NSWSC 1187 at [100]-[118], especially [111]-[113]
JMK v RDC and PTO v WDO [2013] NSWSC 1362 at [53]-[56] and [68](5)
M v M [2013] NSWSC 1495 at [10]-[20], [46]-[48]
Mao v AMP Superannuation Limited [2015] NSWCA 252 at [49]-[50] and [53]
Murphy v Doman (2003) 58 NSWLR 51
P v NSW Trustee and Guardian [2015] NSWSC 579 at [25]-[36], [227]-[273]. [290]-[292]
PY v RJS [1982] 2 NSWLR 700 at 702B-E, D-E
Re Application for partial management orders [2014] NSWSC 1468 at [19]-[24], ‘23]-[30]
Re Eve [1986] 2 SCR 388 at 407-417; (1986) 31 DLR (4th) 1 at 14-21
Re K, an incapable person in in receipt of interim damages awards [2014] NSWSC 1286 at [38]-[49]
Re W and L (Parameters of protected estate management orders) [2014] NSWSC 1106 at [39]-[53]
RL v NSW Trustee and Guardian (2012) 84 NSWLR 263 at 284[93]-285[96],
Secretary, Department of Health and Community Services JWB and SMB (Marion’s Case) (1992) 175 CLR 218 at 258-259
Wellesley v Duke of Beaufort (1827) 2 Russ 1 at 20; 38 ER 236 at 247
Texts Cited: HS Theobald, The Law Relating to Lunacy (Stevens & Sons, London, 1924), pages 54, 401-403 and 511-513.
JM Bennett, A History of the Supreme Court of New South Wales (Law Book Co, Sydney, 1974), chapter 7.
Philip Powell, The Origins and Development of the Protective Jurisdiction of the Supreme Court of New South Wales (Forbes society, Sydney, 2004)
Category: Principal judgment
Parties: Plaintiff (Applicant): A Protected Person
Defendant (First Respondent): Common Law Adversary of the Protected Person
(Second Respondent): NSW Trustee, Protected Estate Manager
Representation:
Counsel:
Plaintiff: In person
Defendant: D Hanna
Protected Estate Manager (NSW Trustee & Guardian): R Foord
Solicitors:
Defendant: Moray & Agnew
NSW Trustee & Guardian: Colin Daley Quinn Solicitors

File Number(s): 2015/000195132015/00186082

Judgment

INTRODUCTION

Before the Court is an application by a litigant in person (the applicant) for:

an order that management orders made by me, under section 41 of the NSW Trustee and Guardian Act 2009 NSW, on 20 July 2015 (in proceedings numbered 2015/00019513 in the Protective List of the Equity Division of the Court) be revoked; and

an order that orders made by me on 3 August 2015 (in proceedings numbered 2015/00086082 in the Common Law Division of the Court) to the effect that, subject to further order, the NSW Trustee (as protected estate manager of the applicant) be appointed as tutor for the applicant (the plaintiff in each of the Common Law Division proceedings and proceedings numbered 2009/00333800 in the District Court of NSW) be set aside.

The application was made on 12 October 2015 (orally and by reference to a document miss-styled “summons seeking leave to appeal” filed in the Equity Registry on 6 October 2015) and heard on 16 November 2015, allowing the parties to the application an opportunity to assemble evidence not conveniently available at the time the application was first made.
The respondents to the application are:

the party (for convenience, here designated the first respondent) on whose application the orders presently under challenge were made; and

the NSW Trustee (for convenience, here designated the second respondent).

The precise jurisprudential bases upon which the application before the Court is made need not be explored in detail. That is because: first, section 86 of the NSW Trustee and Guardian Act 2009 expressly allows a “protected person” (an expression defined by section 38 of the Act to include a person, such as the applicant, in respect of whom a management order under section 41 of the Act is in force) to apply for an order that the management order be revoked, and that consequential orders be made to give effect to the revocation; secondly, the present application is made squarely on the basis that the applicant alleges that he is capable of managing his own affairs, thus directly engaging section 86; thirdly, the order for appointment of the NSW Trustee as the applicant’s tutor is predicated upon its appointment as manager of his protected estate; and fourthly, at the time the orders presently under challenge were made, I advised the applicant that it would be open to him, in the ordinary course, to make an application for the orders to be discharged or varied if he maintained his stance that he is capable of managing his own affairs.

PROCEDURAL CONTEXT

The occasion, and necessity, for making the orders presently under challenge arose out of proceedings in the District Court of NSW (numbered 2009/00333800), the subject of an application to this Court (in the proceedings numbered 2015/00086082 in the Common Law Division of the Court) that they be transferred to this Court, in which the applicant (as plaintiff) has sued the first respondent (as defendant) for personal injury compensation.
In the District Court proceedings:

the first respondent (with the backing of an insurer which has carriage of all proceedings on his behalf) has long admitted liability to the applicant for damages yet to be assessed.

a judge of the District Court has determined that the applicant is, within the meaning of the Uniform Civil Procedure Rules 2005 NSW (UCPR), incapable of managing his affairs and, accordingly, in need of a tutor to conduct the proceedings on his behalf.

proceedings for assessment of the damages to which the applicant is entitled to have long been stymied by his inability to manage the litigation, either personally or through representation.

despite recurrent protests to the contrary, the applicant has been unable to obtain, or at least to retain:

the consent of any person willing, and able, to act as his tutor; or

the services of a solicitor, or barrister, prepared to act for him without the intervention of a tutor.

the insurer, and lawyers, acting on behalf of the first respondent take the view (consistently with, if not reflective of, the case management duties imposed on them by the Civil Procedure Act 2005 NSW, section 56) that they are under a duty to bring to the attention of the Court a perceived necessity for protected estate management orders (under section 41 of the NSW Trustee and Guardian Act), committing the estate of the applicant to management under the NSW Trustee and Guardian Act, if his entitlement to damages is to be assessed, in a regular way, on its merits.

THE PROBLEM STATED

The first respondent applied for the orders now under challenge because, in practical terms, absent such orders, the District Court proceedings (or, if a transfer order is made, the proceedings in the Common Law Division) could not be heard on their merits but must, in effect, remain stayed.
Unless and until the compensation proceedings are finally determined, experience suggests that they will be the subject of repeated, misconceived applications by the applicant, as a litigant in person, which, absent a finding that he is in no need of a tutor, are bound to fail, giving rise to oppression of all participants in the process, and persistent complaints by the applicant that he is a “victim” of a legal system that cannot, or will not, accommodate him.
From every prospective, the due administration of justice (including an effective exercise of protective jurisdiction) requires a solution to this problem.
It is not a problem unique to these proceedings, although each case is unique in its own way and must be approached so.
The applicant in the present proceedings lacks the insight to see that, without professional help to overcome a disability, he is likely to cruel his reasonable prospects for success in his common law, compensation proceedings
One does not need to be a doctor to recognise the applicant’s disability. It is, or should be, patent even to an untrained eye: in the course of the proceedings in which he has been engaged to date; in the rambling and, not uncommonly, inconsistent character of his submissions; in the quality of paperwork he routinely submits to the Court; in his apparent inability to accept, or at least not to bite, a helping hand when offered to him; in his restless frustration with his lot; in his delusional confidence in his own ability, in all things; and in his equally delusional tendency to blame everybody but himself for lack of progress in his compensation proceedings.
That said, if medical evidence be necessary to support a finding of fact that the applicant is incapable of managing his affairs, it can be found in abundance in the evidence of Dr Patricia Jungfer, an experienced consultant psychiatrist. In a report dated 18 November 2014 commissioned by former solicitors of the applicant she expressed an opinion that he “lacks capacity to provide instructions to legal counsel”. On the hearing of the present application, subpoenaed by the applicant to attend, she gave oral evidence in which (with the benefit of examination by counsel, the Court and the applicant) she had adhered to that opinion, elaborated her reasons for it, and confirmed that, in her opinion, the applicant is incapable of managing his affairs.
Dr Jungfer’s evidence reinforces what is, or should be, obvious to any independent, lay observer. The applicant lacks the insight to make a reasonable, informed decision about what is in his best interests. That lack of insight is compounded by both: (a) an inability to process information rationally; and (b) a tendency to be emphatic, to the point of being intransigent, in his expression of choices he makes, even if his choices are patently improvident.

CONCEPTUAL ANALYSIS OF THE PROBLEM

In the absence of a person able, and willing, to volunteer as the applicant’s tutor, the only practical way forward, by a two step process, appeared to me (and continues to appear to me) to be the making of orders of the type now under challenge.
As a matter of convention, the NSW Trustee (the second respondent) accepts that it can be, and it regularly is, appointed as a protected estate manager by the Court (or as the equivalent, a financial manager, appointed under the Guardianship Act 1987 NSW by the NSW Civil and Administrative Tribunal (“NCAT”) sitting in its Guardianship Division) without notice or, if given notice, without inquiry as to whether or not it consents to such an appointment.
As a matter of practice, no person other than the NSW Trustee is appointed to manage a protected estate without the necessity for his, her or its consent. Rules of court reflect this: UCPR rule 57.5(1)(d). The NSW Trustee is the State’s protected estate manager of last resort: M v M [2013] NSWSC 1495 at [46]-[48]; Ability One Financial Management Pty Limited and Anor v JB by his Tutor AB [2014] NSWSC 245 at [30]-[32].
As a protected estate manager, the NSW Trustee is liable under rules of court to be appointed tutor of the protected person: UCPR rules 7.15(3) and 7.15(4).
Appointment of a tutor, under those rules, ordinarily depends upon the prospective tutor consenting to the appointment: UCPR rules 7.15(4) , 7.16(a) and 7.18(5)(b); Mao v AMP Superannuation Limited [2015] NSWCA 252 at [49]-[50] and [53].
Consistently with those rules, and for good practical reasons, the Court does not ordinarily appoint the NSW Trustee as the tutor of a protected person (in pending proceedings instituted otherwise than through the agency of the NSW Trustee) without allowing it an opportunity to object to its appointment or, at least, to seek directions in management of the protected estate before, or in conjunction with, its appointment as a tutor.
Given an opportunity to survey proceedings as a protected estate manager before taking up the office of a tutor, the NSW Trustee has not only an opportunity to investigate facts, and to assess the costs and benefits of proceedings to the protected person, but also, from a position of strength, for the benefit and in the interests of the protected person, to negotiate a way forward with his or her adversarial opponent.
In theory, the Court could direct the NSW Trustee, as a protected estate manager, to consent to an application as a tutor (NSW Trustee and Guardian Act, section 64; RL v NSW Trustee and Guardian (2012) 84 NSWLR 263 at 284[93]-285[96]), or it could (mindful of the dictates of the protective jurisdiction exercised by the Court, and the NSW Trustee’s role in management of protected estates) dispense with any requirement under rules of court for the NSW Trustee’s consent (CPA sections 14 and 16; UCPR rule 7.14(4).
However, it would only be in a rare case that the NSW Trustee’s consent to appointment as a tutor would, or should, be dispensed with.
Service as a protected estate manager, or as a tutor, can be onerous enough in itself. Appointment to each office involves acceptance, or imposition, of fiduciary obligations to a person in need of protection, and exposure to a personal liability for costs, as well as the burden of dealing with a person who, through incapacity, might be personally troublesome.
Appointment as a tutor, in proceedings not commenced by the person appointed as a tutor, can be particularly onerous. It involves picking up proceedings not the subject of an earlier, rational assessment of prospects for success, and dealing with baggage arising from conduct of proceedings by others, not all of whom might have been competent to have carriage of the proceedings.
Once appointed as a protected estate manager, and armed with powers it has as a manager, the NSW Trustee generally needs, and should be allowed, an opportunity to survey the field of litigious battle onto which, even without its consent, it has been dumped.
Unless protected by orders made in exercise of the Court’s protective jurisdiction, a tutor is inherently at risk as to costs in the proceedings in which he, she or it serves as a tutor.
In a case such as the present, in which the NSW Trustee is called upon to act as a tutor in pending proceedings (not being proceedings commenced by the NSW Trustee), it may be appropriate to order that no costs orders be made, or (if made) enforced, against the NSW Trustee (in the proceedings in which it serves as a tutor) without the prior leave of the Court exercising protective jurisdiction.
In a case such as the present, where the NSW Trustee is appointed as a protected estate manager and as a tutor on the application of an adversarial opponent of the protected person, a term might be imposed on those orders, an undertaking might be extracted from the adversarial opponent, or an order might be made to give effect to the need, in due administration of the Court’s protective jurisdiction, to protect the NSW Trustee acting, in the public interest, as a manager and tutor of last resort.
In the present case, before consenting to an order that it be appointed as the applicant’s tutor, the NSW Trustee extracted from the first respondent an undertaking that the first respondent would not seek or enforce any order for costs against it.
Since the orders presently under challenge were made, and with the benefit of that undertaking, the NSW Trustee has retained an experienced firm of solicitors who have, in turn, retained an experienced barrister to act in the applicant’s best interests in advancement of his personal injury compensation claim. This, in itself, is more than the applicant has been able to achieve for himself in several years of wasted litigation.
If the applicant is unable to manage his affairs, in the absence of a realistic, alternative nominee for the office of manager or the office of tutor, the NSW Trustee will be left (as, in this judgment, I find it should be entrusted) with the task of discharging the obligations of those offices.
If the applicant did not have reasonable prospects of recovery of compensation in the proceedings in which he has the first respondent as his adversarial opponent, the only other alternative (of allowing the District Court proceedings to remain, in effect, stayed for want of a tutor) would need to be given active consideration; but that is not this case.

(IN)CAPACITY FOR SELF-MANAGEMENT : APPLICABLE PRINCIPLES

So, attention must turn to principles governing an answer to the question whether the applicant is, or is not, able to manage his affairs.

Onus of Proof

That question is best considered afresh, without any presumption arising from the pendency of the orders under challenge. The purposive character of an exercise of protective jurisdiction, manifested in section 39 of the NSW Trustee and Guardian Act, militates against the imposition of a legal onus of proof on any person by reference to the contingency for which the introductory words of section 86(1) of the Act provide. The requirement that the Court must be “satisfied” of an applicant’s capacity for self-management may cast on the applicant a forensic onus, but no more.
A contrary view, based on PY v RJS [1982] 2 NSWLR 700 at 701D- E, has held sway for some time. It is that a protected person who applies for revocation of a management order affecting him or her bears an onus to prove that he or she is capable of managing his or her own affairs.
That view could still reasonably be held on a reading of section 86(1) in isolation. However, in my opinion, it cannot survive a reading of the NSW Trustee and Guardian Act as a whole, or a consideration of how the current legislative regime, viewed in the larger perspective, is intended to operate and in fact operates.
The general principles set out in section 39 of the NSW Trustee and Guardian Act (which have their origins in section 4 of the Guardianship Act, a fundamental touchstone of the Guardianship Division of NCAT and its legislative predecessors) require a more flexible, nuanced approach than that found in PY v RJS.
In all cases, the Court is obliged to apply an independent mind to the question of capacity, conscious that there is a strong public interest element in the proceedings, and that they are not adversarial in character.

The same considerations apply, with no less force, upon an exercise of the Court’s inherent jurisdiction, which has not been displaced by section 86 and which, in an appropriate case, may need to be engaged in revocation of a management order even though a protected person remains incapable of self-management: Re W and L (Parameters of protected estate management orders) [2014] NSWSC 1106 at [55] et seq. A decision can be made that a management order should be revoked, notwithstanding ongoing incapacity, where it is for the benefit, and in the best interests, of the protected person that the order be revoked: CJ v AKJ [2015] NSWSC 498 at [51]-[53].
Capacity for self-management lies at the heart of both: (a) the making and revocation of protected estate management orders; and (b) a finding as to the necessity, or otherwise, for proceedings to be conducted through a tutor.
The key expression “(in)capable of managing his or her affairs” is found in the following pivotal legislative provisions, as well as elsewhere in NSW legislation:

the NSW Trustee and Guardian Act, section 41, relating to orders by the Supreme Court for management of the affairs of a person incapable of managing his or her affairs.

the NSW Trustee and Guardian Act, section 86, empowering the Supreme Court, on application by a protected person, to revoke management orders if satisfied that the protected person is capable of managing his or her affairs.

UCPR rule 7.13, which, in rules of court governing the appointment or removal of a tutor, expands the definition of “person under legal incapacity” found in CPA section 3(1) to include (in addition to a “protected person” within the meaning of the NSW Trustee and Guardian Act, section 38) “a person who is incapable of managing his or her affairs”.

Within the NSW court system, the Supreme Court alone has an inherent protective jurisdiction (derived from the New South Wales Act 1823 (Imp), the Third Charter of Justice proclaimed under that Act and the Australian Courts Act 1828 (Imp), preserved by section 22 of the Supreme Court Act 1970 NSW and reinforced by section 23 of the same Act), based on the historical example of the office of the Lord Chancellor of England, over a person who is unable to manage his or her own affairs: PB v BB [2013] NSWSC 1223 at [27]-[65]; JM Bennett, A History of the Supreme Court of New South Wales (Law Book Co, Sydney, 1974), chapter 7; Philip Powell, The Origins and Development of the Protective Jurisdiction of the Supreme Court of New South Wales (Forbes society, Sydney, 2004).

Management of Protected Estates

The Court’s inherent jurisdiction is supplemented by statutory powers for the management of estates, found principally in chapter 4 (sections 38-100) of the NSW Trustee and Guardian Act, that provide for the estate of an incapable person to be “subject to management” under the Act and, accordingly, to be subject to an administrative regime managed, or monitored, by the NSW Trustee under the supervision of the Court and, in relation to administrative decisions, the Civil and Administrative Tribunal of NSW (“NCAT”): M v M [2013] NSWSC 1495 at [10]-[20]; Ability One Financial Management Pty Limited and Anor v JB by his tutor AB [2014] NSWSC 245 at [48-[63]; P v NSW Trustee and Guardian [2015] NSWSC 579 at [25]-[36].
A protected estate “manager” appointed under section 41 of the NSW Trustee and Guardian Act is the modern NSW equivalent of a “committee of the estate” historically appointed, removed and supervised by the Lord Chancellor of England upon an exercise of inherent jurisdiction: IR v AR [2015] NSWSC 1187 at [100]-[118], especially [111]-[113].
Whatever the source of the Court’s power to appoint, or to revoke the appointment of, a protected estate manager, the power is purposive in character. In relation to the inherent jurisdiction, that is clearly stated in Secretary, Department of Health and Community Services v JWB and SMB (Marion’s Case) (1992) 175 CLR 218 at 258-259, citing Re Eve [1986] 2 SCR 388 at 407-417; (1986) 31 DLR (4th) 1 at 14-21 and Wellesley v Duke of Beaufort (1827) 2 Russ 1 at 20; 38 ER 236 at 247. For decisions made under the NSW Trustee and Guardian Act, section 39 of the Act sets out “general principles” substantially to the same effect.
For present purposes, the key provisions of the NSW Trustee and Guardian Act to notice are sections 39, 40 and 41, here extracted so far as relevant, with emphasis added:

“39 General principles applicable to Chapter
It is the duty of everyone exercising functions under this Chapter [Chapter 4, entitled “Management functions relating to persons incapable of managing their affairs] with respect to protected persons [ie, persons in respect of whom an order is in force for the whole or part of the person’s estate to be subject to management under the NSW Trustee and Guardian Act]… to observe the following principles:
(a) the welfare and interests of such persons should be given paramount consideration,
(b) the freedom of decision and freedom of action of such persons should be restricted as little as possible,
(c) such persons should be encouraged, as far as possible, to live a normal life in the community,
(d) the views of such persons in relation to the exercise of those functions should be taken into consideration,
(e) the importance of preserving the family relationships and the cultural and linguistic environments of such persons should be recognised,
(f) such persons should be encouraged, as far as possible, to be self-reliant in matters relating to their personal, domestic and financial affairs,
(g) such persons should be protected from neglect, abuse and exploitation.
40 Orders for management may apply to part of estate
An order may be made under this Chapter for the management of the whole or part of the estate of a person.
41 Orders by Supreme Court for management of affairs
(1) If the Supreme Court is satisfied that a person is incapable of managing his or her affairs, the Court may:
(a) declare that the person is incapable of managing his or her affairs and order that the estate of the person be subject to management under this Act, and
(b) by order appoint a suitable person as manager of the estate of the person or commit the management of the estate of the person to the NSW Trustee.
(2) The Supreme Court may make an order on its own motion or on the application of any person having a sufficient interest in the matter.
(3) For the purposes of this section:
(a) evidence of a person’s capability to manage his or her own affairs may be given to the Supreme Court in any form and in accordance with any procedures that the Court thinks fit, and
(b) the Court may personally examine a person whose capability to manage his or her affairs is in question or dispense with any such examination, and
(c) the Court may otherwise inform itself as to the person’s capability to manage his or her own affairs as it thinks fit….”

In grappling with how to deal constructively with a litigant in person who evidently lacks capacity for self-management, the legislative mandate in section 41(2) for the Court to make a management order on its own motion (reinforced by the procedural authority conferred on the Court by section 41(3)) should not be overlooked.
It is not in every case that an applicant for a management order can be found. This has been illustrated recently by Mao v AMP Superannuation Limited [2015] NSWCA 252 at [50], with the consequence that proceedings were left in limbo. Another example, in which Slattery J worked through the present problem in a way broadly consistent with the solution offered to it in this judgment, is found in Hazairin Iskandar v Zulfikri Mahbur and Ors (No. 6) (15 February 2012, unreported), following on from his Honour’s judgment in the same case, reported as [2011] NSWSC 1056 at [9] and [13].
Although section 40 contemplates that a management order may be made in respect of part only of an estate, rather than the whole estate, the due administration of a protected estate (including its supervision by the NSW Trustee and the Court) requires caution in the making of a partial management order: Re Application for partial management orders [2014] NSWSC 1468 at [19]-[24].
Depending on the facts of the case, in a particular case it may be appropriate to make a partial management order (limiting the property under management to a cause of action the subject of pending proceedings) in aid of the appointment of a person to act as tutor for the protected person in those proceedings. Examples of such an order can be found in Hazairin Iskandar v Zulfikri Mahbur and Ors (No. 6) at [28] and in the chambers order of Palmer J paraphrased in Re K, an incapable person in receipt of interim damages awards [2014] NSWSC 1286 at [3].
Whatever form of management order may be made, care may need to be taken, both upon an exercise of protective jurisdiction by the Court (or by the Guardianship Division of NCAT exercising analogous statutory powers), and in the supervision of tutors by the Supreme Court or by another court seized of proceedings in which an incapable person is a party, to ensure that a person in need of protection has his or her estate, and adversarial proceedings in which he or she may be engaged, managed in an orderly way designed to protect his or her interests: Re W and L(Parameters of protected estate management orders) [2014] NSWSC 1106 at [39]-[53]; Re K, an incapable person in in receipt of interim damages awards [2014] NSWSC 1286 at [38]-[49]; Re Application for partial management orders [2014] NSWSC 1468 at [23]-[30] and H v H [2015] NSWSC 837 at [6]-[22].

Appointment and Supervision of a Tutor

The key legislative provisions, in the Civil Procedure Act 2005 and the Uniform Civil Procedure Rules 2005, relating to the necessity for, and the appointment, removal and supervision of, a tutor in adversarial proceedings may be summarised as follows, as far as presently material:

a “person under legal incapacity” is defined as including:

a person who is incapable of managing his or her affairs (UCPR rule 7.13); and

a “protected person” within the meaning of the NSW Trustee and Guardian Act (CPA section 3(1) namely (by virtue of section 38 of the NSW Trustee and Guardian Act), a person in respect of whom an order is in force under the NSW Trustee and Guardian Act or the Guardianship Act that the whole or any part of the person’s estate be subject to management under the NSW Trustee and Guardian Act.

a person under legal incapacity is not permitted to commence or carry on proceedings except by a tutor: UCPR rules 7.14(1).

a person may become the tutor of a person under legal incapacity without the need for an order of the court: UCPR rule 7.15(1).

ordinarily, in the case of proceedings with respect to the estate of a protected person, the tutor of that person is to be the person who has the management of the person’s estate (as a protected estate manager) under the NSW Trustee and Guardian Act.

anything that the UCPR authorise or require a party to do in relation to the conduct of proceedings may, if the party is a person under legal incapacity, be done on his or her behalf by his or her tutor: UCPR rule 7.15(6).

the Court may appoint and remove a tutor, control the appointment process, and make ancillary orders: eg, UCPR rules 7.15(4), 7.15(5) and 7.18.

on the application of a tutor, the Court may give directions with respect to the tutor’s conduct of proceedings, whether before the Court or any other court, on behalf of the person under legal incapacity: CPA section 80.

Independently of these provisions, the Court’s inherent protective jurisdiction extends to supervision of the appointment, and conduct, of tutors, including the appointment of a tutor in proceedings pending in the Court itself or proceedings pending in the District Court of NSW: Re P [2006] NSWSC 1082, approved in Bobolas v Waverley Council [2012] NSWCA 126 at [60]-[62].

The Meaning of (In)capacity for Self-Management

The meaning of the expression “(in)capable of managing his or her own affairs” takes flavour from the context in which it appears.
In the context of the appointment or removal of a protected estate manager, its meaning is no longer driven by a necessary association with mental illness, despite its origins in the Lord Chancellor’s “lunacy jurisdiction”: David by her tutor the Protective Commissioner v David (1993) 30 NSWLR 417 at 436E - 437C; P v NSW Trustee and Guardian [2015] NSWSC 579 at [247]’s-248] and [290]-[292]. The focus is, instead, on functionality: whether, for whatever reason, the particular person is unable to manage his or her affairs.
The same change of emphasis might, in theory, apply to the concept of incapacity for self-management in the conduct of proceedings; but, as Murphy v Doman (2003) 58 NSWLR 51 demonstrates, the usual factual scenario, upon consideration of a perceived need for a tutor, is one in which a litigant is thought to lack the mental capacity necessary to conduct particular proceedings.
A fundamental point of connection between the two interrelated concepts of (in)capacity for self-management is found in the observations of the High Court of Australia in Gibbons v Wright (1954) 91 CLR 423 at 434-438.
There the High Court observed that the law, generally, does not prescribe any fixed standard of “capacity” required for the transaction of business. The level of capacity required is relative to the particular business to be transacted, and the purpose of the law served by an inquiry into a person’s capacity.
Observations made by Campbell JA in Guthrie v Spence (2009) 78 NSWLR 225 at 256 [174]-[175], by reference to Gibbons v Wright, confirm that the concept of (in)capacity for self-management is purpose-driven and task-specific.
Upon consideration of a necessity for a tutor, the Court of Appeal applied Gibbons v Wright expressly in Murphy v Doman (2003) 58 NSWLR 51 at 58 [33]-[34].
For many years Gibbons v Wright appears to have been submerged in discussion of the concept of “(in)capacity” in the context of protected estate management orders because of adherence to phraseology originally crafted by Powell J in PY v RJS [1982] 2 NSWLR 700 at 702B-E. His Honour instructed us to test capacity for self-management by reference to whether there is capacity for “dealing, in a reasonably competent fashion, with the ordinary routine affairs of man”.
Nevertheless, reviewing the jurisprudence in light of the State’s current legislative regime, there has been a return to the approach for which Gibbons v Wright is the prime authority. Development of the case law in moving to that position is traced in CJ v AKJ [2015] NSWSC 498 at [22]-[43]; P v NSW Trustee and Guardian [2015] NSWSC 579 at [227]-[273]; and H v H [2015] NSWSC 837 at [27]-[37].
In CJ v AKJ [2015] NSWSC 498 at [27]-[34] the view to which I came (and to which I adhere) after an examination of authorities, old and new, was that, ultimately, the concept of (in)capacity for self-management bears the ordinary meaning of language used to describe it, informed by the purpose and principles of the protective jurisdiction, measuring an individual’s capacity for self-management against the “affairs” of the particular individual rather than a hypothetical construct such as “the ordinary affairs of man”.
For convenience, I repeat here my summary of the authorities in CJ v AKJ:

“27. In the absence of an express legislative definition, the expression “(in)capable of managing his or her affairs” should be accorded its ordinary meaning, able to be understood by the broad community (lay and professional) it serves, remembering that:
(a)   the concept of incapacity for self-management is an integral part of the protective jurisdiction which, historically, arose from an obligation of the Crown (now more readily described as the State) to protect each person unable to take care of him or her self: Marion’s Case (1992) 175 CLR 218 at 258, citing Wellesley v Duke of Beaufort (1827) 2 Russ 1 at 20; 38 ER 236 at 243.
(b)   of central significance is the functionality of management capacity of the person said to be incapable of managing his or her affairs, not: (i) his or her status as a person who may, or may not, lack “mental capacity” or be “mentally ill”; or (ii) particular reasons for an incapacity for self-management: PB v BB [2013] NSWSC 1223 at [5]-[9] and [50].
(c)   the focus for attention, upon an exercise by the Court of its protective jurisdiction (whether inherent or statutory), is upon protection of a particular person, not the benefit, detriment or convenience of the State or others: Re Eve [1986] 2 SCR 388 at 409-411, 414, 425-428, 429-430, 431-432 and 434; (1986) 31 DLR (4th) 1 at 16-17, 19, 28-30, 31, 32 and 34; JPT v DST [2014] NSWSC 1735 at [49]; Re RB, a protected estate family settlement [2015] NSWSC 70 at [54].
(d)   the “affairs” the subject of an enquiry about “management” are the affairs of the person whose need for protection is under scrutiny, not some hypothetical construct: Re R [2014] NSWSC 1810 at [94]; PB v BB [2013] NSWSC 1223 at [6].
(e)   an inquiry into whether a person is or is not capable of managing his or her affairs focuses not merely upon the day of decision, but also the reasonably foreseeable future: McD v McD [1983] 3 NSWLR 81 at 86C-D; EB & Ors v Guardianship Tribunal & Ors [2011] NSWSC 767 at [136].
(f)   the operative effect given to the concept of capacity for self-management, upon an exercise of protective jurisdiction by the Court (whether inherent or statutory), is informed, inter alia, by a hierarchy of principles, proceeding from a high to a lower level of abstraction; namely:
(i)   an exercise of protective jurisdiction is governed by the purpose served by the jurisdiction (protection of those not able to take care of themselves): Marion’s Case (1992) 175 CLR 218 at 258.
(ii)   upon an exercise of protective jurisdiction, the welfare and interests of the person in need of protection are the (or, at least, a) paramount consideration (the “welfare principle”): Holt v Protective Commissioner (1993) 31 NSWLR 227 at 238B-C and 241A-B and F-G; A (by his tutor Brett Collins) v Mental Health Review Tribunal (No 4) [2014] NSWSC 31 at [146]-[147].
(iii)   the jurisdiction is parental and protective. It exists for the benefit of the person in need of protection, but it takes a large and liberal view of what that benefit is, and will do on behalf of a protected person not only what may directly benefit him or her, but what, if he or she were able to manage his or her own affairs, he or she would, as a right minded and honourable person, desire to do: H.S. Theobald, The Law Relating to Lunacy (London, 1924), pages 362-363, 380 and 462: Protective Commissioner v D (2004) 60 NSWLR 513 at 522 [55] and 540 [150].
(iv)   whatever is to be done, or not done, upon an exercise of protective jurisdiction is generally measured against what is in the interests, and for the benefit, of the person in need of protection: Holt v Protective Commissioner (1993) 31 NSWLR 227 at 238D-F and 241G-242A; GAU v GAV [2014] QCA 308 at [48].
28.   The Court’s inherent jurisdiction has never been limited by definition. Its limits (and scope) have not, and cannot, be defined: Marion’s Case (1992) 175 CLR 218 at 258, citing Re Eve [1986] 2 SCR 388 at 410; (1986) 31 DLR (4th) 1 at 16; Wellesley v Duke of Beaufort (1827) 2 Russ 1 at 20; 38 ER 236 at 243; and Wellesley v Wellesley (1828) 2 Bli. NS 124 at 142; 4 ER 1078 at 1085.
29.   The jurisdiction, although theoretically unlimited, must be exercised in accordance with its informing principles, governed by the purpose served by it.
30.   Although the concept of “a person… incapable of managing his or her affairs” is foundational to the Court’s protective jurisdiction in all its manifestations (inherent and statutory), the purposive character of the jurisdiction is liable, ultimately, to confront, and prevail over, any attempt at an exhaustive elaboration of the concept in practice decisions.

31.   From time to time one reads in judgments different formulations of the, or a, “test” of what it is to be “a person (in)capable of managing his or her affairs”. Convenience and utility may attach to such “tests”, but only if everybody remembers that they provide no substitute for a direct engagement with the question whether the particular person under scrutiny is, or is not, “(in)capable of managing his or her affairs”, informed by “the protective purpose of the jurisdiction” being exercised, and the “welfare principle” derived from that purpose.
32.   The general law does not prescribe a fixed standard of “capacity” required for the transaction of business. The level of capacity required of a person is relative to the particular business to be transacted by him or her, and the purpose of the law served by an inquiry into the person’s capacity: Gibbons v Wright (1954) 91 CLR 423 at 434-438.
33.   The same is true of “capacity” for self-management, upon an exercise of protective jurisdiction, governed by the protective purpose of the jurisdiction, viewed in the context of particular facts relating to a particular person in, or perceived to be in, need of protection.
34.   Once this is accepted, there is scope for appreciation of different insights available into the meaning, and proper application, of the concept that a person is “(in)capable of managing his or her affairs”.

Following these observations, in CJ v AKJ at [36]-[40] I canvassed four different formulations of a “test” of what it is to be “a person (in)capable of managing his or her affairs” in order to demonstrate that there is scope for appreciation of different insights available into the meaning, and operation, of the concept.
The first was an adaptation of Powell J’s formulation in PY v RJS [1982] 2 NSWLR 700 at 702B-E, without any gloss associated with his Honour’s hallmark expression, “the ordinary affairs of man”. The second was taken from a judgment of Hallen AsJ in EB and Ors v Guardianship Tribunal and Ors [2007] NSWSC 767 at [134]. The third was a contribution of my own. The fourth was an adaptation of the statutory criteria for the making of a financial management order under the Guardianship Act, Part 3A, particularly sections 25E and 25G, read with sections 3(2) and (4).
As noted in CJ v AKJ at [40]-[41], the utility of any elaboration of the concept of (in)capacity for self-management depends on whether (and, if so, to what extent) it is, in the particular case, revealing of reasoning justifying a finding that a person is or is not (as the case may be) capable of managing his or her own affairs: (a) having regard to the protective purpose of the jurisdiction being exercised and the welfare principle; and (b) taking care not to allow generalised statements of the law or fact-sensitive illustrations to be substituted for the text of any legislation governing the particular decision be made.
A similar conclusion could, and in my judgement should, be made upon a review of the authorities relating to the concept of (in)capacity for self- management in the context of a perceived necessity for a tutor in particular, adversarial proceedings.
In Murphy v Doman (2003) 58 NSWLR 51 the Court of Appeal, responding to the facts of the particular case, viewed the concept of (in)capacity from the perspective of law (civil and criminal) relating to insanity, drawing upon Gibbons v Wright (1954) 91 CLR 423 at 437-438 and McNaghten’s Case (1843) 10 Cl & F 200 at 210; 8 ER 718 at 722.
Drawing heavily upon the text of Division 4 of Part 7 of the UCPR, the Court of Appeal in Mao v AMP Superannuation Limited [2015] NSWCA 252 implicitly articulated the concept of (in)capacity for self-management in terms of the necessity for the conduct of proceedings that each party be, or be represented by, a person “able to make reasoned and sensible forensic decisions”. This may be seen in paragraph [48] of the Court’s joint judgement:

“Division 4 of Part 7 of the UCPR proceeds on the basis that, if, as a matter of fact, a person is under legal incapacity, that person may not commence or carry on proceedings except by a tutor. There is considerable justification for such a scheme. A person under legal incapacity should not be permitted to commence or carry on proceedings to the detriment of that person unless represented by another person who is able to make reasoned and sensible forensic decisions on behalf of the first person in relation to the proceedings.”

In a succession of cases (Farr v State of Queensland [2009] NSWSC 906 at [15]; Murray v Williams [2010] NSWSC 1243 at [26]; Stokes v McCourt [2014] NSWSC 61 at [31] and Bowering v Knox [2014] NSWSC 1107 at [14] and [38]), Divisional judges of the Court have found assistance in the following observations of the English Court of Appeal, referable to English rules of court, in Masterman-Lister v Brutton & Co. (Nos 1 and 2) [2003] 1 WLR 1511; [2003] 3 All ER 162 at [75]:

“For the purposes of [the English rule] the test to be applied… is whether the party to legal proceedings [in respect of whom appointment of a tutor is under consideration] is capable of understanding, with the assistance of such proper explanation from legal advisers and experts in other disciplines as the case may require, the issues on which his [or her] consent or decision is likely to be necessary in the course of those proceedings. If he [or she] has capacity to understand that which he [or she] needs to understand in order to pursue or defend the claim, [there is no reason] why the law – whether substantive or procedural should require the imposition of a [tutor]”.

That this “test” is not of assistance in all cases is demonstrated by its assumption that the person perceived to be in need of protection has, and manifestly can maintain, an ongoing relationship with legal advisers and other experts. That assumption is not made out in the current proceedings, where the person in need of protection is a litigant in person, unable to maintain a stable, ongoing relationship with solicitors, if not other professionals as well.
On a broader reading of the Court of Appeal’s judgment, it contains observations about legal incapacity that are consistent with Gibbons v Wright, and inconsistent with PY v RJS: [2003] 1 WLR 1511 at [18]-[20], [22]-[27], [29], [54], [58]-[60] and [62].
Nevertheless, in this area of law, as in others in which the equity tradition has played a significant role, caution is required in adaptation of modern English case law to Australian conditions. For some years following 1 November 1960, the protective jurisdiction of the English High Court which, here, would be described as “inherent” or parens patriae jurisdiction over persons incapable of managing their affairs (as distinct from minors) was displaced by a combination of legislation and local English practice, until it was (as subsequent English cases have described it) “rediscovered” by the House of Lords in In re F (mental patient: sterilisation) [1990] 2 AC 1: Masterman-Lister v Brutton & Co (Nos. 1 and 2) [2003] 1 WLR 1511 at [70]; In re L (vulnerable adults with capacity: Court’s Jurisdiction) (No. 2) [2012] EWCA Civ 253; [2012] 3 WLR 1439 at [55], approving In re SA (Vulnerable Adult with Capacity: Marriage) [2005] EWHC 2942 (Fam); [2006] 1 FLR 867. In NSW law and practice, the inherent jurisdiction has never been similarly displaced, and it continues to inform our legislative regime and rules of court.
Further illustrations of the necessity for an appreciation that there is no universal “test” for assessment of whether a person is “(in)capable of managing his or her own affairs” might be drawn from those limbs of the definition of “person under legal incapacity” in CPA section 3(1) that feed into Division 4 of Part 7 of the UCPR without reference to the concept of a “protected person”, based upon the currency of a protected estate management order. The categories of person who need to be accommodated because of that statutory definition include minors, forensic patients and “a person under guardianship” within the meaning of the Guardianship Act.
The primary meaning of the expression “person under legal incapacity”, within the CPA section 3(1) definition, is “any person who is under a legal incapacity in relation to the conduct of legal proceedings”, with a qualification not presently material. Given the diversity of cases that need to be accommodated by reference to “incapacity” concepts, the fact-specific and purposive character of concepts of “capacity”, the observation in Gibbons v Wright (1954) 91 CLR 423 at 437 that “the law does not prescribe any fixed standard of [capacity] as requisite for the validity of all transactions” is compelling.
Once this is accepted, there is scope for appreciation of different insights available into the meaning, and proper application, of the concept that a person is “(in)capable of managing his or her affairs”.
As recorded in H v H [2015] NSWSC 837 at [36], and adapted to the present case, four important, practical implications flow from this perspective of the law:

first, any “test” of incapacity for self-management (such as those canvassed in CJ v AKJ [2015] NSWSC 498) must be accommodated to standards prevailing in the community of the particular person said to be in need of protection, as well as his or her particular need.

secondly, the utility of any formulation of a “test” of incapacity for the purpose of an exercise of protective jurisdiction depends on whether (and, if so, to what extent) it is, in the particular case, revealing of reasoning justifying a finding that a person is or is not (as the case may be) capable of managing his or her affairs, having regard to the protective purpose of the jurisdiction being exercised and established principles including, especially, the welfare principle: CJ v AKJ [2015] NSWSC 498 at [40].

thirdly, in conformity with the general law (expounded in Gibbons v Wright (1954) 91 CLR 423 at 434-438), the level of capacity required of a person for a due exercise of protective jurisdiction is relative to the particular business to be transacted by that person, and the purpose of the law (in the present context, the protective jurisdiction or consideration of a perceived necessity for a tutor) served by an inquiry into the person’s capacity.

fourthly, although a decision about whether a particular person is, or is not, capable of managing his or her affairs may be powerfully informed by an expression of medical opinion, based upon articulated observations of fact and accompanied by an exposition of technical medical terms, a determination about capacity for self-management made upon an exercise of protective jurisdiction (or in the context of consideration of a perceived necessity for a tutor) is not, in essence, the province of medical expertise, but of independent judgement by a court applying established criteria to particular facts.

Given the purposive and context-sensitive character of the concept of (in)capacity for self-management, a decision about such capacity upon consideration of whether to make a protected estate management order may need to be approached differently from a decision about capacity on consideration of whether to require a tutor, even if only because the nature and scope of inquiry about “the affairs” of the particular person that require management are different.
Nevertheless, it must be remembered that when a protected estate management order is made under section 41 of the NSW Trustee and Guardian Act:

the power of the protected person to deal with his or her estate is suspended by operation of section 71 of the NSW Trustee and Guardian Act; and

by virtue of the management order, the protected person falls within the definition of “person under legal incapacity” in CPA section 3(1), without a need for independent consideration of his or her capacity for self-management by reference to UCPR rule 7.13.

In each case, a decision-maker needs to be alive to nuances arising from a shift in perspective, and the need both: (a) to consult the welfare and interests of the particular person in need of protection as the paramount consideration (eg, the NSW Trustee and Guardian Act, section 4); and (b) `to test everything done, or not done, by measuring it against what is in the interests, and for the benefit, of that person (Holt v Protective Commissioner (1993) 31 NSWLR 227 at 238 D-F and 241G-242A: GAU v GAV [2014] QCA 308 at [48]). Considerations of practical utility are never far from the surface.

(IN)CAPACITY FOR SELF-MANAGEMENT: THE FACTS

The applicant was born in 1967, and is presently aged 48 years.
He was involved in a motor vehicle collision on 2 July 2007, as a result of which he suffered injury to his neck and head.
Through the agency of a firm of solicitors, he commenced proceedings in the District Court by filing a statement of claim against the first respondent on 26 February 2009.
In the fullness of time, although not immediately, the first respondent admitted liability, and the insurer standing behind the first respondent made substantial interim payments of compensation to or for the benefit of the applicant.
During the course of the District Court proceedings the applicant has frequently changed solicitors. To the observation of the solicitor for the first respondent, he has instructed in excess of 10 different firms of solicitors.
The District Court proceedings have been listed for hearing on three occasions, but each time adjourned at the applicant’s request.
On 8 September 2014, pursuant to UCPR rule 7.3.6, his Honour Judge Sorby referred the applicant to the Registrar of the District Court for referral to a barrister or solicitor on the Registrar’s pro bono panel.
On 7 October 2014 Carroll and O’Dea, solicitors, became the applicant’s solicitors on the record in the District Court proceedings.
On 17 October 2014 a solicitor from that firm, together with an experienced barrister, Mr Andrew Stone (now of senior counsel), conferred with the applicant.
During that conference, and subsequently, the lawyers became concerned that the applicant lacked capacity to provide instructions. They made arrangements for him to be seen by Dr Jungfer for the purpose of preparation by her of a report on his capacity.
On 24 October 2014 the proceedings came before Judge Elkaim SC for case management. His honour listed for hearing on 1 December 2014 a notice of motion in which the applicant sought (under Part 6 Division 5, sections 81-84 of the Civil Procedure Act) an order that the first respondent make an interim payment of damages to him on account of the damages claimed by him in the principal proceedings. His Honour also ordered the first respondent to pay for Dr Jungfer’s report.
When the applicant’s motion came before her Honour Judge Norton SC on 1 December 2014, her Honour had before her Dr Jungfer’s report dated 18 November 2014. That report, with detailed reasons, concluded that the applicant lacked capacity to provide instructions to legal counsel.
On the application of the applicant, Norton DCJ adjourned the proceedings to 18 December 2014 to allow him to obtain evidence on the question of capacity.
During the period of that adjournment, the applicant obtained short reports, respectively dated 4 and 15 December 2015, from doctors (Dr S and Dr T) who each certified that he had capacity to conduct the proceedings.
When the proceedings came before Judge Norton on 18 December 2014, the applicant was self-represented. Mr Stone appeared as amicus curiae, and confirmed that he and his instructing solicitors applied for leave to cease acting for the applicant. The respondent was legally represented by his solicitor. Ms Catherine Phang, a senior solicitor in the office of the New South Wales Trustee, appeared to assist the Court.
In reasons for judgment published by her Honour on 4 February 2015, Judge Norton accepted the report of Dr Jungfer, preferring it over the shorter reports of the applicant’s doctors. On the basis of Dr Jungfer’s report and “the history of… non-progress” in the District Court proceedings over several years her Honour found that the applicant lacked the ability to give proper instructions for the conduct of the proceedings. Accordingly, she held that it would not be appropriate to deal with the question of interim compensation until a tutor had been appointed to represent the applicant.
In her judgment her Honour recorded that Ms Phang had, on 18 December 2014, indicated to the Court that the NSW Trustee “would not become involved unless a financial management order [sic] was first made, but the Supreme Court could make such an order and direct [the NSW Trustee] to act as a tutor.”
In the concluding paragraphs of the judgment her Honour recorded that, as there was no person willing to become the applicant’s tutor, she could not make any orders for the appointment of a tutor; but she noted that the solicitor for the first respondent had indicated he would seek instructions to approach the Supreme Court, for the appointment of a protected estate manager, as a preliminary to appointment of the manager as the applicant’s tutor. Mr Stone and his instructing solicitor were then granted leave to file a Notice of the Ceasing to Act forthwith.
The first respondent commenced the foreshadowed Protective List proceedings, in this Court, by filing on 21 January 2015 a summons for protected estate management orders under section 41 of the NSW Trustee and Guardian Act. An amended summons was filed on 24 June 2015 seeking the appointment by the Court of a tutor, for the applicant, to conduct the District Court proceedings.
When the proceedings came before me, as Protective List Judge, on 20 July 2015, the first respondent was represented by counsel and the applicant appeared in person.
Having regard to evidence about the course of the District Court proceedings and the available medical evidence (including Dr Jungfer’s report) and Norton DCJ’s reasons for judgment, and having had an opportunity to observe the applicant in court, I made notations and orders that included notations and orders to the following effect:

(1) DECLARE, pursuant to section 41(1)(a) of the NSW Trustee and Guardian Act, that [the applicant] is incapable of managing his affairs.
(2) ORDER that the estate of [the applicant] be subject to management under the NSW Trustee and Guardian Act.
(3) ORDER, pursuant to section 41(1)(b) of the NSW Trustee and Guardian Act, that management of the estate of [the applicant] be committed to the NSW Trustee.
(4)   ORDER, subject to further order, that the NSW Trustee take such steps as may be necessary or convenient to permit [the applicant] to deal himself with so much of his estate as comprises his receipt and disbursement of a disability pension.
(5)   NOTE that [the applicant] presently has pending, in proceedings in the District Court of NSW, a claim for compensation for personal injuries suffered by him in an accident that occurred in or about 2007.
(6)   NOTE that the District Court proceedings cannot presently be advanced in the absence of some person prepared to act as tutor for the defendant.
(7)   NOTE that the plaintiff in the present (Protective List) proceedings [the first respondent] is the defendant in the District Court proceedings.
(8)   NOTE that, in the District Court proceedings, liability has been admitted but quantification of any award of damages has yet to take place.
(9)   NOTE that, in proceedings in the Common Law Division of this Court, [the applicant] has applied:
(a)   by an amended summons filed on 7 July 2015, for, inter alia, an order under CPA section 140 that the District Court proceedings be transferred to the Supreme Court.
(b)    by an amended notice of motion filed on 7 July 2015, for orders (implicitly by reference to CPA section 82) for the payment to him of interim compensation.

(10)   RESERVE for further consideration in these (Protective List) proceedings:
(a)   whether the NSW Trustee can, and should, be appointed tutor for [the applicant] in his District Court proceedings.
(b)   whether a member of the family of [the applicant] can, and should be, appointed as manager of his protected estate with a view to appointment also as his tutor in the District Court proceedings.
(11)   ORDER that these (Protective List) proceedings be listed before the Protective List Judge on 3 August 2015 for further consideration, or directions, as the nature of the case may require and allow.
(12)   NOTE that [the Common Law Division proceedings] are to be listed at the same time and place with a view to their being considered together with the present (Protective List) proceedings.
(13)   ORDER that the solicitor for [the first respondent] serve on the NSW Trustee copies of these orders [and documents relating to all pending proceedings involving the applicant and the first respondent].
(14)   RESERVE all questions of costs.
(15)   RESERVE to the NSW Trustee liberty to apply for directions as and when the nature of the case may require.

I did not deliver formal reasons for judgment in support of these orders, which were made in the course of a busy list, but (as the transcript records) I did explain to the applicant what steps were being taken, and why. It was important to get the NSW Trustee involved, without delay, in order to protect and advance the welfare and interests of the applicant. His pleas for assistance and opposition to proposals for assistance waxed and waned in a manner consistent with Dr Jungfer’s report.
Appointment of the NSW Trustee as the applicant’s protected estate manager in these circumstances was not unlike an appointment of the NSW Trustee as a receiver of the applicant’s estate: GNM v ER [1983] 1 NSWLR 144 at 148C-149D; HS Theobald, The Law Relating to Lunacy (Stevens & Sons, London, 1924), pages 54, 401-403 and 511-513; JMK v RDC and PTO v WDO [2013] NSWSC 1362 at [53]-[56] and [68](5). In any case, such an appointment was necessary to enable the NSW Trustee to engage with the applicant, and the first respondent, in a practical way.
When the two sets of proceedings in this Court (the Protective List and Common Law Division proceedings) came before me, as Protective List Judge, on 3 August 2015, the first respondent was represented by counsel, the applicant was represented by Ms Brouwer, a senior solicitor in the employee of the NSW Trustee. The applicant also appeared in person.
Having heard submissions, I made notations and orders in each of the two sets of proceedings. Again, that was done in the course of a busy list, without delivery of formal reasons for judgment; but with an explanation of what was being done, and why, transcribed.
In the Protective List proceedings I made notations and orders to the following effect:

(1)   NOTE that the NSW Trustee, as a protected estate manager of [the applicant], consents to act as tutor for [the applicant] in the pending proceedings in which he is a plaintiff; namely:
(a)    the District Court proceedings; and
(b)   the proceedings in the Common Law Division for the transfer of those proceedings to the Supreme Court.
(2)   NOTE that the NSW Trustee (as protected estate manager of [the applicant] and as his tutor in the District Court and Common Law proceedings) proposes to engage in discussions with the legal representatives of [the first respondent] with a view to ascertaining whether [the applicant’s] claims for compensation can be the subject of a settlement agreement (subject to approval by the Supreme Court in its exercise of protective jurisdiction) and, if not, about the best means of advancing the compensation proceedings to an orderly conclusion.
(3)   NOTE that the legal representatives of [the first respondent] inform the court that their client is willing and able to engage with the NSW Trustee for the purpose of advancing such discussions constructively.
(4)   RESERVE to [the applicant] liberty to apply to the Court for orders varying or discharging the protected estate management orders affecting him as he may be advised.
(5)   RESERVE all questions of costs.
(6)   NOTE the notations and orders today made in the Common Law Division proceedings.
(7)   ORDER that these proceedings be listed before the Protective List Judge on 12 October 2015.
(8)   RESERVE liberty to apply to the Protective List Judge generally.

At the same time I made orders and notations in the Common Law Division proceedings to the following effect:

(1)   NOTE the orders and notations today made in the Protective List proceedings.
(2)   ORDER, subject to further order, that the NSW Trustee (as protected estate manager of [the applicant]) be appointed as tutor for [the applicant] in these proceedings and in the District Court proceedings.
(3)   NOTE that the NSW Trustee consents to its appointment as tutor for [the applicant] in the two sets of proceedings.
(4)   ORDER, subject to further order, that the further conduct of the District Court proceedings be restrained pending the determination of these (Common Law Division) proceedings.
(5)   ORDER that the solicitor for [the first respondent] provide to the Registry of the District Court, a copy of the orders made today and on 20 July 2015 in these proceedings and in the Protective List proceedings.
(6)   ORDER that these proceedings be listed before the Protective List Judge on 12 October 2015 for directions, in conjunction with the Protective List proceedings.
(7)   RESERVE all questions of costs.
(8)   RESERVE liberty to apply to the Protective List Judge generally.

When the two sets of proceedings came before me on 12 October 2015 the applicant appeared in person; the first respondent appeared by counsel; and the NSW Trustee (the second respondent) appeared by counsel, instructed by solicitors retained by the NSW Trustee in its capacity as protected estate manager of the applicant.
As a matter of convenience, the substantive business of the day was recorded in notations and orders in the Protective List proceedings to the following effect:

(1)   NOTE that [the applicant] applies today orally (and by reference to a document styled “summons seeking leave to appeal” filed in the Equity Registry on 6 October 2015) for:
(a)   an order that the management orders made on 20 July 2015 be revoked; and
(b)   an order that the order made on 3 August 2015 for the appointment of the NSW Trustee as tutor for the applicant be revoked.
(2)   NOTE that the District Court proceedings presently stand adjourned in the District Court to 19 January 2016 for directions.
(3)   NOTE that the evidence presently filed bearing upon questions relating to whether the applicant needs or ought to have a protected estate manager, or a tutor, comprises the following:
(a)   affidavits sworn by Alwyn Gillis on 9 January 2015 and 7 July 2015, relied upon by the first respondent;
(b)   affidavits sworn by the applicant on 24 June 2015 and 28 September 2015 or thereabouts; and
(c)   the following material prepared by the applicant, namely:
a document styled “summons seeking leave to appeal” marked “received 6 October 2015” by the Supreme Court, expressed to relate to the Protective List proceedings and the Common Law Division proceedings;
a document styled “notice of motion” filed in the Court of Appeal;
a document styled “statement of issues” dated 1 September 2015 in relation to the Protective List proceedings, the Common Law Division proceedings and the District Court proceedings;
a document styled “amended statement of claim” dated 1 September 2015 in the District Court proceedings and the Common Law Division proceedings;
a document styled “summons seeking leave to appeal” filed 19 August 2015 in the Court of Appeal; and
a bundle of documents including a summons filed 6 October 2015 in the Court of Appeal.
(4)   ORDER that the NSW Trustee, no later than 23 October 2015, file and serve any affidavit it proposes to file in response to the applicant’s applications for the revocation of management and tutor orders.
(5)   ORDER that the applicant and the first respondent, no later than 6 November 2015, file and serve any affidavits they respectively propose to file in the applications.
(6)   ORDER that the applications be listed before the Protective List Judge on 16 November 2015 at 9am for hearing or directions as the nature of the case may allow.
(7)   NOTE that the time presently available for the conduct of that hearing at that time is one hour.
(8)   NOTE that, if the applicant proposes to nominate as a tutor any person other than the NSW Trustee, he should ensure that his nominee(s) attend(s) court on the hearing of the applications listed for 16 November 2015 at 9am.
(9)   RESERVE liberty to the parties to apply to the Protective List Judge, generally, in the meantime.
(10)   RESERVE all questions of costs.
(11)   NOTE that (without any objection on the part of the parties) a copy of these orders will be made available by the Court to the Registrar of the Court of Appeal for the Court of Appeal Court of Appeal to take into account when giving such directions, or making such orders, as may be required in proceedings presently pending in the Court of Appeal relating to the applicant.

At the same time, in the Common Law Division proceedings I made notations and orders to the following effect:

(1)   NOTE the orders and notations today made in the Protective List proceedings.
(2)   ORDER that these proceedings be listed before Lindsay J on 16 November 2015 at 9am for directions.
(3)   RESERVE all questions of costs.
(4)   RESERVE to all affected parties (including the NSW Trustee) liberty to apply to Lindsay J between today and the adjourned date.

On 16 November 2015 the applicant appeared in person, and each of the respondents appeared by counsel. Upon a subpoena issued by the applicant, Dr Jungfer attended before the Court to give evidence. On a second subpoena issued by the applicant, a solicitor not presently involved in the proceedings also attended before the Court; she attended under protest and, upon inquiry by me, indicated that she was not prepared to act on behalf of the applicant in any of his proceedings. On a third subpoena issued by the applicant, Dr S did not attend before the Court; but, by a letter tendered by the applicant, he advised the Court that, although not available to attend that day, he would be available the following day to give oral evidence if required.
On the hearing of the applicant’s application, the evidence formally noted on 12 October 2015 was again formally noted without objection; an affidavit of Joanna Christine Brouwer (a senior solicitor of the NSW Trustee’s office) sworn 27 October 2015 was read without objection; and Dr Jungfer gave oral evidence confirmatory of her written report. Without objection, she was examined by the Court and each party to the proceedings. The applicant’s brother-in-law also gave oral evidence: as to his perceptions of the applicant’s capacity, and the nature, and limitations, on his preparedness to act as the applicant’s tutor. Sundry documents were received into evidence as exhibits. During the course of the hearing, the parties were allowed an opportunity to address the Court in support of, and in opposition to, the applicant’s application. Judgment on the application was then reserved.
There is no need to set out in detail the evidence adduced on the hearing of the application. It is sufficient, as indicative of the flavour of the whole of the evidence, to extract that part of Dr Jungfer’s report in which she detailed her reasons for holding her opinion that the applicant lacked capacity to provide instructions for legal counsel, and to note that in his dealings with the NSW Trustee as his protected estate manager the applicant has demonstrated a total lack of cooperation.
The following extract is taken from pages 7-8 of Dr Jungfer’s report:

“Diagnosis
Cognitive disorder secondary to poly substance intoxication.
Probable paranoid psychosis.
Adjustment disorder.
Opinion
It is my opinion that [the applicant] lacks capacity to provide instructions for legal counsel. The first test of what constitutes capacity is that an individual must understand the relevant information. The relevant information provided to [the applicant] to date has included explanations regarding the Motor Accidents Act and the assessment of how compensation is paid, the role of the medical assessment service and the role of the various members of the judiciary. Throughout the assessment [of the applicant’s capacity by Dr Jungfer] he provided conflicting information regarding his understanding of the role of the judiciary and provided a paranoid interpretation to the role of various members of the judiciary. He did not appear to understand the workings of the Motor Accidents Act and the appropriateness or the relevance of this Act with regards to the assessment of compensation. While [the applicant] had heard the information he did not appear to be able to understand it and it was my opinion that his inability to understand it was influenced by his cognitive processes, that is his impairments of cognition as well as his mental state particularly his paranoid delusional system.
The second component of capacity is the ability to reason about the potential risks and benefits of the options. [The applicant] in clinical assessment demonstrates marked rigidity of thinking, he is unable to take on information, consider that information and he is unable to propose alternatives to the decisions that he forms. He is not prepared to discuss the risks associated with any decision that he makes and continues to perseverate around the theme of what should or should not happen and his interpretation of what he sees as being just and appropriate. He is unable to engage in a discussion of the risks associated with his decision making process, becoming verbally agitated and verbally abusive. In my opinion he fails the second arm of the test of capacity as he lacks the ability to reason about the risks and benefits of his options. Despite the fact that he was aware that I was assessing his capacity and that it would serve him to his benefit to be able to discuss aspects looking at both risks and benefits and putting forward various opinions as to what the decisions could potentially be he could not participate in such a fashion in my opinion confirming his inability to reason.
The third arm of the test of a person’s capacity is their ability to appreciate the nature of the situation and the consequences of one’s choice. [The applicant could only perceive one aspect of the situation that was that he had been injured and from his perspective he was entitled to a particular sum of compensation. He could not understand that because of the decisions that he had made to date that his legal process appears to have been substantially delayed. In fact he justified his actions and decisions by drawing reference to times when he had been able to convince the judiciary to provide him with an advance payment. He did not understand the concept of being in breach of [a] court order or the possible ramifications of this although I understand that there have been no ramifications of his refusal to accept the directions of the Court until the capacity assessment is completed. Overall it was my opinion that his thought processes and behaviour demonstrated that he could not appreciate the seriousness of the situation or the consequences of his decisions.
The fourth arm of the test of capacity is a person’s ability to express the choice and adhere to the decision. In my opinion [the applicant] does satisfy this arm of the capacity, in that he does have a choice and he does stick with that choice or decision that is made. The problem is that his decision making process is impaired, that he is unable to take in the information that is required and therefore ultimately he lacks capacity.
Therefore based on the assessment of 17 November 2014 [made by Dr Jungfer] it is my opinion that [the applicant] lacks legal capacity, he fails to meet the test of capacity, being an ability to understand the information, reason the potential risks and benefits, appreciate the nature of the situation and the consequences of the choice. He is able to express a choice and adhere to the decision making although this choice and decision is based on a faulty thinking process. It is my opinion that his cognitive functioning in particular his ability to attend, to problem solving, reason, to learn new information, to make decisions is impaired on the basis of his poly-substance ingestion and that his psychiatric illness, that is his paranoid psychosis which directly influences his decision making processes and his ability to take in and complete the decision-making activity.”

In her oral evidence Dr Jungfer elaborated upon her personal contact with the applicant in the aftermath of her consultation with him on 17 November 2007 (as he repeatedly attempted to communicate with her) and specifically addressed the applicant’s capacity for managing his own affairs.
Her evidence accords with my own observations of the applicant on each of the occasions he appeared before me.
It accords, also, with the rambling, disconnected character of statements made by the applicant in the court process, affidavits and written submissions he has filed in the proceedings currently before the Court, and in proceedings instituted by the applicant in the Court of Appeal, as a means of challenging the orders made by me (on 20 July and 3 August 2015).
The applicant is not without his supporters, but their support is generally qualified in some way that limits its practical utility.
I intend no criticism of any of the people who have, no doubt from the highest of motives, expressed support for the applicant. Dr S is on record as expressing an opinion that the applicant is able to manage his own affairs, but he was not available to give oral evidence on the date deliberately appointed by the Court for that purpose. The applicant’s brother-in-law, a reasonable and intelligent man, was prepared to act as the applicant’s tutor; but he genuinely doubted whether a tutor is required, he had no appreciation of the duties of a tutor, and he disqualified himself from the office of tutor when confronted with the possibility of a personal liability to costs.
Upon consideration of the application that the protected estate management and tutorship orders under challenge be revoked, I ask myself, afresh: What does the applicant have to cope with in order to protect, and to advance, his own interests in the foreseeable future? Can he reasonably be expected to cope without a protected estate manager, and a tutor? Would the appointment of a manager, and tutor, be of benefit to, and in the interests of, the applicant? Would there be practical utility in such appointments?
I find, as a fact, that the plaintiff is unable to manage his own affairs, including (but not limited to) the conduct of his compensation proceedings. I am satisfied that he is not able, personally, to take care of his own affairs, to protect or to advance his own interests in a competent fashion. He is chronically dysfunctional. He lacks insight into his dysfunctionality.
In my opinion, his welfare and interests are likely to be best served by the NSW Trustee continuing, for the time being, to manage his affairs and to act as his tutor in the compensation proceedings.
This is not an appropriate case in which to make a partial management order. It is enough that, on 20 July 2015, and subject to further order, the NSW Trustee was given a direction to take such steps as may be necessary or convenient to permit the applicant to deal himself with so much of his estate as comprises his receipt and disbursement of a disability pension. Under his self-management, his financial affairs, not only his compensation proceedings, have been in disarray. There is a need for order to be brought to both, especially if (as I apprehend) he stands in prospect of receiving compensation in the form of a capital sum. The NSW Trustee needs authority to take control of the applicant’s affairs generally, even if it exercises that control lightly from time to time.

In my opinion, were I to discharge the orders presently under challenge the likelihood is that the applicant’s compensation proceedings would remain in a state of perpetual limbo, effectively stayed on a permanent basis. No sensible person of substance, fully informed about risks attached to acting for the applicant (either as a lawyer or as a tutor) could reasonably be expected to take on such a task.
Without a protected estate manager, tutor and professional legal assistance, I am confident that the applicant is unlikely to obtain any award of compensation. It is not within his power to understand, or to implement, the steps necessary to reach that goal.
With the NSW Trustee as his protected estate manager and tutor, and with the benefit of assistance from lawyers retained by the NSW Trustee, there is a realistic prospect that he will recover compensation (of an order that I am unable, on the materials presently before me, to assess), notwithstanding any campaign of civil disobedience that he might, in the depths of his illness, pursue against the NSW Trustee.

ORDERS

Accordingly, I ORDER that the applicant’s application to have the management orders of 20 July 2015 and the tutorship orders of 3 August 2015 set aside be dismissed.
Recognising the terms upon which the NSW Trustee was appointed manager of the applicant’s estate (without notice or its consent, as the manager of last resort), and upon which it agreed to act in that capacity as the applicant’s tutor (without exposure to personal costs liability) I ORDER that no orders as to the costs of the compensation proceedings (if made) be enforced against the NSW Trustee without the prior leave of this Court.
I will make no order for the costs of these proceedings to date, unless an application for such an order is made. I will consider any such application if and when made. For the present, I simply note that, upon an exercise of protective jurisdiction, the ordinary rule is not that “costs follow the event”. Because of the purposive nature of the jurisdiction, and accumulated experience, the Court may proceed on the basis that it is generally necessary, and appropriate, to ask “What, in all the circumstances, seems the proper order to make in relation to costs?”: CCR v PS (No. 2) (1986) 6 NSWLR 622 at 640; CAC v Secretary, Department of Family and Community Services(No. 2) [2015] NSWSC 344 at [15]-[16].

**********

NOTE:

Following publication of the reasons for judgment set out above, the respondents expressly disclaimed any intention to apply for an order for costs in connection with the proceedings before the Court; namely, the applicant’s application for an order that the management orders of 20 July 2015 and the tutorship order of 3 August 2015 be set aside; the principal Protective List proceedings in which the first respondent applied for those management and tutorship orders; and the Common Law Division proceedings, in which the applicant applied to have the District Court compensation proceedings transferred to the Supreme Court. On the application of the first respondent, with the consent of the applicant (through his tutor, the NSW Trustee), the summons in the Common Law Division proceedings was dismissed, with the intention that any application made by or on behalf of the applicant for compensation, whether compensation of an interim or final character, is to be made in the District Court proceedings, unimpeded by dismissal of the Common Law Division proceedings.

Decision last updated: 27 November 2015

Medium Neutral Citation:	A v A [2015] NSWSC 1778
Hearing dates:	16 November 2015
Date of orders:	27 November 2015
Decision date:	27 November 2015
Jurisdiction:	Equity - Protective List
Before:	Lindsay J
Decision:	(1) Order that an Application to revoke a protected estate management order and a tutorship order be dismissed. (2) Order that no orders as to costs of compensation proceedings (in which the NSW Trustee acts as tutor for the applicant, an incapable person) be enforced against the NSW Trustee without the leave of this Court.
Catchwords:	PROTECTIVE JURISDICTION – Financial management order and tutorship order – Litigant in person – Incapable of managing affairs – Application for the Applicant, revocation of orders – Application dismissed MENTAL HEALTH – Guardians, committees, administrators, managers and receivers - Appointment – Management of estate– Tutor in common law compensation proceedings – Meaning of incapacity for self-management PRACTICE – NSW Trustee and Guardian Act – Protected estate manager – Tutor in common law compensation proceedings- Litigant in person – Incapable of managing affairs - Appointment of NSW Trustee as manager and tutor
Legislation Cited:	Australian Courts Act 1828 (Imp) Civil Procedure Act 2005 NSW Civil Procedure Act 2005 NSW, section 56 Guardianship Act 1987 NSW New South Wales Act 1823 NSW Trustee and Guardian Act 2009 NSW Uniform Civil Procedure Rules 2005 NSW (UCPR)
Cases Cited:	Ability One Financial Management Pty Limited and Anor v JB by his Tutor AB [2014] NSWSC 245 at [30]-[32], [48-[63] Bobolas v Waverley Council [2012] NSWCA 126 at [60]-[62] CAC v Secretary, Department of Family and Community Services (No. 2) [2015] NSWSC 344 at [15]-[16] CCR v PS (No. 2) (1986) 6 NSWLR 622 at 640 CJ v AKJ [2015] NSWSC 498 at [22]-[43] David by her tutor the Protective Commissioner v David (1993) 30 NSWLR 417 at 436E - 437C Gibbons v Wright (1954) 91 CLR 423 at 434-438 GNM v ER [1983] 1 NSWLR 144 at 148C-149D H v H [2015] NSWSC 837 at [27]-[37] IR v AR [2015] NSWSC 1187 at [100]-[118], especially [111]-[113] JMK v RDC and PTO v WDO [2013] NSWSC 1362 at [53]-[56] and [68](5) M v M [2013] NSWSC 1495 at [10]-[20], [46]-[48] Mao v AMP Superannuation Limited [2015] NSWCA 252 at [49]-[50] and [53] Murphy v Doman (2003) 58 NSWLR 51 P v NSW Trustee and Guardian [2015] NSWSC 579 at [25]-[36], [227]-[273]. [290]-[292] PY v RJS [1982] 2 NSWLR 700 at 702B-E, D-E Re Application for partial management orders [2014] NSWSC 1468 at [19]-[24], ‘23]-[30] Re Eve [1986] 2 SCR 388 at 407-417; (1986) 31 DLR (4th) 1 at 14-21 Re K, an incapable person in in receipt of interim damages awards [2014] NSWSC 1286 at [38]-[49] Re W and L (Parameters of protected estate management orders) [2014] NSWSC 1106 at [39]-[53] RL v NSW Trustee and Guardian (2012) 84 NSWLR 263 at 284[93]-285[96], Secretary, Department of Health and Community Services JWB and SMB (Marion’s Case) (1992) 175 CLR 218 at 258-259 Wellesley v Duke of Beaufort (1827) 2 Russ 1 at 20; 38 ER 236 at 247
Texts Cited:	HS Theobald, The Law Relating to Lunacy (Stevens & Sons, London, 1924), pages 54, 401-403 and 511-513. JM Bennett, A History of the Supreme Court of New South Wales (Law Book Co, Sydney, 1974), chapter 7. Philip Powell, The Origins and Development of the Protective Jurisdiction of the Supreme Court of New South Wales (Forbes society, Sydney, 2004)
Category:	Principal judgment
Parties:	Plaintiff (Applicant): A Protected Person Defendant (First Respondent): Common Law Adversary of the Protected Person (Second Respondent): NSW Trustee, Protected Estate Manager
Representation:	Counsel: Plaintiff: In person Defendant: D Hanna Protected Estate Manager (NSW Trustee & Guardian): R Foord Solicitors: Defendant: Moray & Agnew NSW Trustee & Guardian: Colin Daley Quinn Solicitors
File Number(s):	2015/000195132015/00186082