LG v TG

[2005] NSWSC 594

CITATION:	LG v TG [2005] NSWSC 594
HEARING DATE(S):	20 June 2005
JUDGMENT DATE :	20 June 2005
JURISDICTION:	Probate
JUDGMENT OF:	Campbell J
DECISION:	Order striking out proceedings not revoked

CATCHWORDS:	MENTAL HEALTH - legal proceedings by person whose estate has Protective Commissioner as receiver and manager - whether such a person has capacity to bring proceedings other than by the manager of his estate
LEGISLATION CITED:	Conveyancing and Law of Property Act 1898 Protected Estates Act 1983
CASES CITED:	Re DEF and the Protected Estates Act [2005] NSWSC 534
PARTIES:	LG - Plaintiff TG - Defendant
FILE NUMBER(S):	SC 101449/05
SOLICITORS:	In person - Plaintiff Cutlers The Law Firm - Defendant

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
PROBATE LIST

CAMPBELL J

20 JUNE 2005

101449/05 LG v TG

JUDGMENT – Ex Tempore (Revised 21 June 2005)

1 HIS HONOUR: This matter is one in which the plaintiff makes various claims concerning the estate of his late mother. On 6 June 2005 it was before the Young CJ in Eq. The plaintiff did not appear that day. There was evidence that the plaintiff was a person in relation to whom an order was made on 5 December 1997 in proceedings in the Protective List, committing the management of his estate to the Protective Commissioner. In consequence the Chief Judge made the following order on 6 June 2005:

“Order that proceedings be struck out with costs.
However this order is not to be entered until 21/6/05 and is to be notified to Ms Katherine Frost, Solicitor of Fousham & Geddes.
Liberty to the plaintiff to rescind this order on application on motion to Judge hearing Probate List returnable no later than 20/6/05.”

2 The plaintiff filed a Notice of Motion in the present proceedings on 17 June 2005, in which he sought special directions and further orders from the Court. It is that Notice of Motion which is before me today. The plaintiff has appeared today before the Court in person.

3 The plaintiff has submitted that the order appointing the Protective Commissioner to manage his estate is one which can be revoked on 7 days notice. The terms of the order made on 5 December 1997 were:

“1. the Protective Commissioner be appointed as Receiver and Manager of the estate of the defendant until further order of the Court.
2. the Receiver and Manager have all the powers and authorities given to the Protective Commissioner as if he were appointed under the Protected Estates Act 1983.
The court stands the proceedings over generally with liberty to either party to restore them to the list on giving to the Court and the other party 7 days’ notice.
Costs of the plaintiff up to and including today to be paid out of the estate of the defendant, that order not to be enforced until the conclusion of the present District Court proceedings in which the defendant is seeking damages for personal injuries.”


(In that order, “the defendant” refers to the man who is the plaintiff in these present proceedings.)

4 Thus, it can be seen that the 7 days notice relates only to the leave which has been given to restore the Protective List proceedings. If those proceedings were restored, under that leave, it would then be necessary for the Court to ensure the proceedings were properly constituted, and be persuaded it ought revoke the order of 5 December 1997.

5 The order is not, in terms, an appointment of the Protective Commissioner as manager of the plaintiff’s estate under s 22 Protected Estates Act 1983 (“PE Act”). An order under s 22 could be made in 1997, only in relation to a person in respect of whom the Court had made an order under s 13 PE Act, ordering the estate of the person to be subject to management under the PE Act. No such order under s 13 has been made. The order of 5 December 1997 was made in proceedings in the Protective Division which had been commenced by the solicitor acting for the plaintiff in District Court proceedings seeking damages. Those Protective Division proceedings sought an order under s 13 PE Act. The order actually made is one in the inherent jurisdiction of the Court, to appoint receivers and managers. However, its content is no different to an order under s 22, so far as the powers it confers on the Protective Commissioner are concerned.

6 Section 23A of the PE Act deprives a protected person of power to deal with his or her estate during the time that the estate has been committed to the management of someone else under the PE Act. It has the effect that the powers of the Protective Commissioner, in relation to an estate of which he is manager, are ones exercised to the exclusion of the power of the protected person to exercise those powers. The terms of the order of 5 December 1997 are such that the powers it confers on the Protective Commissioner concerning the plaintiff’s estate are ones which the Protective Commissioner exercises to the exclusion of the plaintiff. That order remains in force today. Unless and until it is revoked, it is a valid and effective order (cf Re DEF and the Protected Estates Act [2005] NSWSC 534 at [19] – [26]. It removes the plaintiff’s capacity to bring the present proceedings.

7 The plaintiff has drawn my attention to the list of powers of the Protective Commissioner in s 24(2), including the power which the Protective Commissioner has to act on behalf of a protected person to:

“( m) exercise a power, or give a consent required for the exercise of a power, where the power is vested in the protected person … for the benefit of the protected person … or the power of consent is in the nature of a beneficial interest in the protected person …,
…
(o) bring and defend actions, suits and other proceedings, on behalf of the protected person …,
(p) bring land under the Real Property Act 1900.”

8 Those particular powers are ones which the Protective Commissioner is entitled to exercise, in accordance with the discretion conferred upon him, for the purpose of the management of the estate of the protected person. I do not see how they bear on the capacity of a protected person to bring legal proceedings, other than by the manager of his estate, while the protection order is in place. In consequence, I do not see how they bear on the plaintiff’s capacity to bring the present proceedings.

9 The plaintiff also drew my attention to some provisions relating to settled estates in the Conveyancing and Law of Property Act 1898, including s 70 of that Act. It does not, in my view, remove the fundamental difficulty that there is in the proceedings going forward under the plaintiff’s own direction, at a time when the order of 5 December 1997 continues to operate in relation to his estate.

10 Today, Ms Frost, a solicitor, has appeared in Court, although not on the record as solicitor for any party. She is the solicitor referred to in the order of Young CJ in Eq, made on 6 June 2005 (para [1] above). I allowed her to make submissions. She has, she says, been instructed by the plaintiff, in relation to some proceedings in the Administrative Decisions Tribunal which have been brought to question the decision of the Protective Commissioner not to bring proceedings like the present ones. She could not assist me to see a way in which the present proceedings were ones the plaintiff had the capacity to bring.

11 For those reasons, I am not minded to make any alteration to the order made by Chief Judge on 6 June 2005.

12 The Notice of Motion was served upon the solicitors for the defendant in the proceedings. Mr Hunter, solicitor for the defendant, appeared at Court today. He seeks an order for costs in relation to the proceedings.

13 That order is opposed by the plaintiff, on the basis that it was the defendant who made application for the orders of the Chief Judge, “which forced the plaintiff to put on the notice of motion, or have the proceedings struck out”. I have in that last sentence recorded the way the submission was put to me. The submission does not, in fact, correctly describe the order which the Chief Judge made. The order of the Chief Judge was one which, itself, struck out the proceedings, but directed that that order not be entered until 21 June 2005. It reserved liberty to the plaintiff to rescind those orders on application on motion to a judge. Thus, the order of the Chief Judge did not force the plaintiff to do anything - rather, it gave him an opportunity to take out a Notice of Motion.

14 The plaintiff also tendered to me a medical certificate, dated 24 October 1997, from a psychiatrist who expresses the view that the plaintiff was fit and proper to manage his financial affairs and that his mental status was normal. That opinion, pre-dating as it does, the order appointing the Protective Commissioner as manager is not one which has any relevance to the present application for costs.

15 There is power, under s 35 PE Act to bring a management order made under PE Act to an end, in certain circumstances. Likewise, the Court has an inherent power to revoke the order of 5 December 1997, if sufficient cause is shown. However no such application is on foot. I express no view about the prospects of success such an application might have, if brought, or whether the principles the Court would apply on such an application would be similar to those the Court applies in an application under s 35.

16 In all these circumstance, there is no reason to not apply the usual principle that costs follow the event. The Notice of Motion is dismissed. I order the plaintiff to pay the defendant's costs of today's Notice of Motion. The exhibit may be returned.

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