Protective Commissioner v D - [2004] NSWCA 216

No judgment structure available for this case.

Reported Decision:
60 NSWLR 513

Court of Appeal

CITATION: The Protective Commissioner v "D" & Ors [2004] NSWCA 216

HEARING DATE(S): 24 November 2003

JUDGMENT DATE:
5 July 2004

JUDGMENT OF: Mason P at 1; Giles JA at 2; McColl JA at 7

DECISION: 1. Pursuant to s 12 of the Protected Estates Act 1983 (NSW), the Court directs that the Protective Commissioner has power under the Protected Estates Act 1983 (NSW) and in particular s 28(1)(b) thereof to make payment for past gratuitous care out of the estate of the protected person. 2. Costs of the section 12 Application to be paid out of the Estate of the First Respondent. 3. The parties have liberty to apply within 7 days in relation to order 2. 4. Order that the matter be remitted to the Protective Judge.

CATCHWORDS: PROTECTED ESTATES - Protective Commissioner - Powers - whether the Protective Commissioner has power under the Protected Estates Act 1983 (NSW) to make payment for past gratuitous care out of the estate of the protected person. (D)

LEGISLATION CITED: Administrative Decisions Tribunal Act 1997 (NSW) s 53(6)
Aged and Infirm Persons Property Act 1940 - 1984 (SA)
Guardianship and Protected Estates Legislation Act 2002 (NSW) s 2
Interpretation Act 1987 (NSW) s 33
Lunacy Act 1878 (NSW) s 3, s 92, Pt VIII, Subdiv (1), s 105, s 106, Subdiv (2), s 141, s 144, Subdiv (3), s 151, s 151(a), s 158, s 159, s 160, s 161, s 162, s 163, s 164, s 165, s 166
Lunacy Act 1890 (Imp) s 116(1)(d)
Lunacy Act 1898 (NSW) s 3, s 102, s 103, Pt VIII, Subdiv (2), s 126, s 131, Subdiv (3), s 149(1), s 150
Lunacy Act Further Amendment Act 1893 (NSW) s 1, s 21, s 25
Lunacy Convention Act 1894 (NSW) s 14(1), s 18
Mental Health Act 1958 (NSW) s 3, s 38, s 39, Pt X cll 37-50, Pt XI, s 51, s 52, s 52(1), Div 2, s 59, s 61, s 61(g), s 66, s 66(b), s 66(f), s 67, Div 3, s 81, s 81(1), 81(1)(a), s 81(1)(c), s 81(1)(d), s 82, s 82(h), s 89, s 91, s 92
Mental Health Act 1963 (Tas) s 84(1), s 84(1)(a), s 84(1)(b), s 84(1)(c), s 94(3)
Miscellaneous (Mental Health) Appeal and Amendment Act 1983 (NSW)
New South Wales Constitution Act 1855 (Imp) s 2
Protected Estates Act 1983 (NSW) s 2(2), s 4, Pt II, s 5(1), s 5(3), s 5(8), s 5(9), s 12, Pt III, s 13, s 13(1), s 22, Div 3, s 24, s 24(2), s 25, s 26, s 27, s 28, s 28(1), s 28(1)(a), s 28(1)(b), s 28(1)(c), s 28(1)(d), Div 4, s 29, s 30, s 32, s 77
Public Trustee Act 1985 (ACT) s 25(7)(b)
Statute of Praerogativa Regis, later reprinted as two Acts, 17 Ed. II (1339) cc 9 & 10
Succession Duty Act 1853 (Imp)
Supreme Court Rules 1970 (NSW) Pt 76, rr 4A, 6(5)
Trustee Act (WA) s 59, s 60
Workers Compensation Act 1987 (NSW) Pt 5 Div 3, s 151K

CASES CITED: Attorney-General v Marquis of Ailesbury (1887) 12 App Cas 672
Attorney-General v Montefiore (1888) 21 QBD 461
Beasley v Marshall (No 4) (1986) 42 SASR 407
Beckwith v R (1976) 135 CLR 569
Bennett & Wood Ltd v Orange City Council [1967] 1 NSWR 502
Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg AG [1975] AC 591
Bridges v Bridges and Hooper (1944) 45 SR (NSW) 164
Bropho v Western Australia [1990] HCA 23; (1990) 171 CLR 1
Bull v Attorney-General (NSW) (1913) 17 CLR 370
Commissioner of State Revenue (Vic) v Royal Insurance Australia Ltd (1994) 182 CLR 51
Commissioner for Railways (NSW) v Agalianos (1955) 92 CLR 390
Corporate Affairs Commission (NSW) v Yuill (1991) 172 CLR 319
Evans v Marmont (1997) 42 NSWLR 70
Ex parte Annandale (Marchioness) (1749) Amb 79
Ex parte Whitbread; Re Hinde (1816) 2 Mer 99, 103; (1816) 35 ER 878, 879
Geaghan v D'Aubert [2002] NSWCA 260; (2002) 36 MVR 542
Goode v Thompson [2001] QSC 287; (2001) Aust Torts Reports 81-617
Grevett v McIntyre [2002] QSC 106
Griffin v Union Trustee Co of Australia Ltd (1947) 48 SR (NSW) 360
Griffiths v Kerkemeyer (1977) 139 CLR 161
Hardman v Minehan [2003] NSWCA 130; (2003) 57 NSWLR 390
Heydon's Case (1584) 3 Co Rep 7a; (1584) 76 ER 637
ICI Australia Operations Pty Ltd v WorkCover Authority of New South Wales [2004] NSWCA 55; (2004) 1 DDCR 259
In re Browne [1894] 3 Ch 412
In re Gist (A Person of Unsound Mind) [1904] 1 Ch 398
Jones v Moylan (2000) 23 WAR 65
Marinko v Masri [1999] NSWCA 364; (2000) Aust Torts Reports 81-581
Marks v GIO Australia Holdings Ltd [1998] HCA 69; (1998) 196 CLR 494
Nguyen v Nguyen (1990) 169 CLR 245
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
Public Trustee v Thompson [2000] ACTSC 4; (2000) 155 FLR 18
Re Alderson (1808)
Re B [2000] NSWSC 44
Re Carysfort (1840) Cr & Ph 76; 41 ER 418
Re Darling (1888) 39 Ch D 208
Re DJR and the Mental Health Act 1958 [1983] 1 NSWLR 557
Re Drummond (1836) 1 My & Cr 627; 40 ER 516
Re ES and the Mental Health Act 1958 [1984] 3 NSWLR 341
Re Freeman [1927] 1 Ch 479
Re Frost (1870) LR 5 Ch App 699
Re GDM and the Protected Estates Act 1983 (NSW) (1992) Aust Torts Reports 81-190
Re N [2001] NSWSC 345; (2001) 33 MVR 237
Re Stoer (1884) LR 9 PD 120
Re Strickland (1871) LR 6 Ch App 226
Re Whitaker (1889) 42 Ch D 119
Risk v Northern Territory of Australia & Anor [2002] HCA 23; (2002) 76 ALJR 845
Victims Compensation Fund Corporation v Brown [2003] HCA 54; (2003) 201 ALR 260
W v Q (1992) 1 Tas R 301
Wik Peoples, The v State of Queensland (1996) 63 FCR 450

PARTIES :
The Protective Commissioner (Applicant)
"D" (First Respondent)
Ors (Second Respondent)

FILE NUMBER(S): CA 40892/03

COUNSEL: S W Balafoutis (Applicant)
First respondent (No Appearance)
D Marks (Second Respondents)

SOLICITORS: Timothy John Tunbridge (Applicant)
First respondent (No Appearance)
McBride Harle & Martin (Second Respondents)

LOWER COURTJURISDICTION: Supreme Court - Equity Division

LOWER COURT FILE NUMBER(S): EQ 39/03

LOWER COURT
JUDICIAL OFFICER : Windeyer J

CA 40892/03
EQ 39/03

MASON P
GILES JA
McCOLL JA
Monday, 5 July 2004

THE PROTECTIVE COMMISSIONER v “D” & ORS

FACTS

D was injured in a work accident in 1996. He is seriously disabled and requires 24 hour a day care. Since 1997 the second respondents, his wife, daughters and son-in-law, have been his primary care givers.

In 1998 a declaration was made in the Protective Division that D was a person who was incapable of managing his affairs. An order was made that his estate be subject to management under the provisions of the Protected Estates Act 1983 (NSW) (the “1983 Act”) and that the management of his estate be committed to the Protective Commissioner. The Protective Commissioner commenced proceedings in D’s name claiming damages in respect of his injuries, including a claim for past gratuitous care provided by the second respondents. The proceedings were settled in 2002 by a judgment in D’s favour.

After the settlement, the second respondents sought from the Protective Commissioner an ex gratia payment out of D’s estate in respect of the past gratuitous care they had provided. The Protective Commissioner purported to approve payment to the second respondents in respect of their past gratuitous care.

In July 2003 the Protective Commissioner filed a motion in the Protective List in the Equity Division seeking a direction pursuant to s 12 of the 1983 Act as to the power, if any, of the Protective Commissioner under the 1983 Act and in particular s 28(1)(b) thereof to make payment for past gratuitous care out of the estate of the protected person. The proceedings initially came before Windeyer J who ordered that they be removed to the Court of Appeal on the basis that the parties submitted the question to be decided was the subject of conflicting authorities.

HELD per McColl JA (Mason P and Giles JA agreeing):

The Protective Commissioner has power under the Protected Estates Act 1983 (NSW) and in particular s 28(1)(b) thereof to make payment for past gratuitous care out of the estate of the protected person.

Re GDM and the Protected Estates Act 1983 (NSW) (1992) Aust Torts Reports ¶81-190 approved.

Re DJR and the Mental Health Act 1958 [1983] 1 NSWLR 557 overruled; Re B [2000] NSWSC 44 overruled.

Ex parte Annandale (Marchioness) (1749) Amb 79; Ex parte Whitbread; Re Hinde (1816) 2 Mer 99, 103; (1816) 35 ER 878, 879; Re Drummond (1836) 1 My & Cr 627; 40 ER 516; Re Carysfort (1840) Cr & Ph 76; 41 ER 418; Re Frost (1870) LR 5 Ch App 699; Re Strickland (1871) LR 6 Ch App 226; Attorney-General v Marquis of Ailesbury (1887) 12 App Cas 672; Re Darling (1888) 39 Ch D 208; Attorney-General v Montefiore (1888) 21 QBD 461; Re Whitaker (1889) 42 Ch D 119; In re Gist (A Person of Unsound Mind) [1904] 1 Ch 398; Re ES and the Mental Health Act 1958 [1984] 3 NSWLR 341; Beasley v Marshall (No 4) (1986) 42 SASR 407; W v Q (1992) 1 Tas R 301; The Wik Peoples v State of Queensland (1996) 63 FCR 450; Public Trustee v Thompson [2000] ACTSC 4; (2000) 155 FLR 18; Jones v Moylan (2000) 23 WAR 65; Re N [2001] NSWSC 345; (2001) 33 MVR 237; Goode v Thompson [2001] QSC 287; (2001) Aust Torts Reports ¶81-617; Grevett v McIntyre [2002] QSC 106 referred to.

ORDERS:

1. Pursuant to s 12 of the Protected Estates Act 1983 (NSW), the Court directs that the Protective Commissioner has power under the Protected Estates Act 1983 (NSW) and in particular s 28(1)(b) thereof to make payment for past gratuitous care out of the estate of the protected person.

2. Costs of the section 12 Application to be paid out of the Estate of the First Respondent.

3. The parties have liberty to apply within 7 days in relation to order 2.

4. Order that the matter be remitted to the Protective Judge.

CA 40892/03
EQ 39/03

MASON P
GILES JA
McCOLL JA
Monday, 5 July 2004

THE PROTECTIVE COMMISSIONER v “D” & ORS

Judgment

1 MASON P: I agree with McColl JA and the additional remarks of Giles JA.

2 GILES JA: I have had the privilege of reading the reasons of McColl JA in draft.

3 In my opinion, the words of s 28(1)(b) of the Protected Estates Act 1983 (“the Act”) are apt to authorise payment for past gratuitous care out of the estate of the protected person. Maintenance extends to the care of the protected person, payment for past maintenance is expressly authorised, and the fact that the maintenance was provided gratuitously does not matter: it may go to whether and what payment should be made, but not to power.

4 In re DJR and the Mental Health Act 1958 (1983) 1 NSWLR 557 Powell J held (at 563) that the provisions of the Mental Health Act 1958 extended only to payment for current or future maintenance. With respect, his Honour appears to have overlooked that s 66(b) referred in terms to past maintenance. In holding in re GDM and the Protected Estates Act 1983 (1992) Aust Torts Rep 81-190 that s 28(1)(b) of the Act authorised payment for past gratuitous maintenance, his Honour referred to re DJR and the Mental Health Act 1958 without recognising the inconsistency. In Marinko v Masri (2000) Aust Torts Rep 81-581 at [15] it was said that the Act did not extend to payment for services gratuitously provided, and in re B (2000) NSWSC at [11] it was said that the Act did not extend to payment in settlement of the protected person’s moral obligations. Re DJR and the Mental Health Act 1958 was cited as authority, although the decision in that case had not been directed to the gratuitous nature of the maintenance or the settlement of moral obligations. In neither case was re GDM and the Protected Estates Act 1983 cited.

5 It should be frankly recognised that the authorities are unsatisfactory and that the question should be dealt with afresh. The comprehensive survey by McColl JA amply supports the operation of s 28(1)(b) of the Act, according to its terms, earlier stated.

6 I agree with the orders proposed by McColl JA.

7 McCOLL JA: This case concerns the question whether the power to apply money comprised in a protected person’s estate conferred on the Protective Commissioner of New South Wales (the “Protective Commissioner”) by s 28 of the Protected Estates Act 1983 (NSW) (the “1983 Act”) includes a power to make payments to persons who provided past gratuitous care to the protected person.

8 The proceedings first came before Windeyer J on the application of the Protective Commissioner who sought:

Protected Estates Act

9 On 3 October 2003 Windeyer J, sitting in the Protective List in the Equity Division, ordered that the proceedings be removed to the Court of Appeal on the basis that the parties submitted the question to be decided was the subject of conflicting authorities.

10 The parties submitted that the conflicting authorities requiring resolution were Re DJR and the Mental Health Act 1958 [1983] 1 NSWLR 557 (“Re DJR”) in which Powell J held that the Mental Health Act 1958 (NSW) (the “1958 Act”) did not authorise the Protective Commissioner to make payments for past gratuitous care out of the estate of the protected person - a decision which was followed in Marinko v Masri [1999] NSWCA 364; (2000) Aust Torts Reports ¶81-581 and Re B [2000] NSWSC 44 - and Re GDM and the Protected Estates Act 1983(NSW) (1992) Aust Torts Reports ¶81-190 (“Re GDM”) in which Powell J held that s 28 of the 1983 Act authorised the Protective Commissioner to make such payments.

11 Section 28 of the 1983 Act deals with the application by the Protective Commissioner of moneys comprising the whole or any part of the estate of a protected person. It relevantly provides:

“ 28 Disposition of money in hands of Protective Commissioner

(a) the payment of the debts and engagements of the protected person and the repayment of expenses chargeable to the estate of the protected person,

the maintenance

past and future, of the protected person

(c) the maintenance of the spouse of the protected person or any child, parent or other person dependent upon the protected person, or for whose maintenance the protected person provided when not a protected person or would be expected to provide,

(d) the payment of all proper costs incurred in or about the care, protection, recovery, sale, mortgage, leasing, disposal and management of the estate of the protected person,

(e) the preservation and improvement of the estate of the protected person,

(f) the taking up of rights to issues of new shares, or options for new shares, to which the protected person may become entitled by virtue of any shareholdings,

(g) the investment of money, being money not required for the time being for a purpose referred to in paragraphs (a) - (f) above:

(i) in any form of investment, or

(ii) if the Protective Commissioner is aware that the protected person prefers a particular form of investment, in the form of investment preferred by that person…” (emphasis supplied)

12 I have concluded that Re GDM was correctly decided. The Protective Commissioner has power under the 1983 Act and in particular s 28(1)(b) thereof to make payment for past gratuitous care out of the estate of the protected person.

Statement of the Case

13 The background to the Section 12 Application was set out in the affidavit of Mr Trevor Lester, the Assistant Director, Estate Management in the Protective Commissioner’s office. The following account is taken from that affidavit, the contents of which were not disputed.

14 The first respondent (“D”) was born on 13 August 1941. He was injured in an accident at work on 6 December 1996 when an elevated work platform overturned. He is severely disabled and confined to a wheelchair, requiring 24 hour a day care. Since he returned home from hospital on 11 October 1997 the second respondents, who are his wife, his daughters and son-in-law, all of whom live with him, have been his primary care givers.

15 On 3 July 1998 a declaration was made in the Protective Division that D was a person who was incapable of managing his affairs. An order was also made that his estate be subject to management under the provisions of the 1983 Act and that the management of his estate be committed to the Protective Commissioner (the “Management Order”).

16 In 1998 D commenced proceedings in the Supreme Court of New South Wales claiming damages in respect of his injuries. The papers do not include the Statement of Claim. However, it would appear that the Protective Commissioner commenced the proceedings in D’s name after the Management Order was made. The proceedings included a claim for past gratuitous care provided by the second respondents. The proceedings were settled on 1 March 2002 by a judgment in D’s favour in the sum of $6.95 million plus costs against all defendants.

17 Prior to the settlement, D’s counsel advised the Protective Commissioner of the amounts they considered appropriate in respect of the components of D’s claim. They assessed $150,000 for past gratuitous care in respect of a total claim of $8,389,500 against the second and third defendants, however they estimated that a realistic assessment of the overall quantum of damages was $7 million. The advice also provided an alternative assessment of damages in the event that the action succeeded against the first defendant (apparently the first respondent’s employer), in which case the statutory limit on damages pursuant to Part 5 Division 3 of the Workers Compensation Act 1987 (NSW) as it applied to actions commenced prior to 27 November 2001 applied. The effect of that statutory limit, according to Mr Lester’s affidavit, would have been to limit damages for past gratuitous care to $50,000. This was presumably because of the then operation of s 151K Workers Compensation Act 1987 which was repealed with effect from 27 November 2001.

18 After D’s proceedings were settled, the second respondents’ solicitors wrote to the Protective Commissioner on 11 September 2002 seeking an ex gratia payment of $600,000 out of D’s estate in respect of their past gratuitous care of him (the “Past Gratuitous Care Claim”).

19 The Past Gratuitous Care Claim was made in relation to the second respondents’ care of D from 6 December 1996 to 7 October 1999. It was based on care costs which had been claimed in the Part 33 statement in D’s proceedings.

20 It is apparent from the letter to the Protective Commissioner in which the Past Gratuitous Care Claim was made that the Protective Commissioner has been making payments to the second respondents on account of the continuing care they provide to D.

21 On 8 May 2003 the Protective Commissioner purported to approve payment to the second respondents of $250,000 in respect of the Past Gratuitous Care Claim, $1.2 million for the purchase of a new residence for D and sale of D’s residence (the “8 May 2003 decision”).

22 On 13 June 2003, following an internal review of the 8 May 2003 decision pursuant to s 53(6) of the Administrative Decisions Tribunal Act 1997 (NSW), the Protective Commissioner varied the decision of 8 May 2003 (the “3 June 2003 decision”). The effect of the variation was to approve a part payment of $250,000 in respect of the Past Gratuitous Care Claim. In addition, in the event that the second respondents were able to locate a suitable property for purchase and modification for a sum less than the approved amount of $1.2 million, the 13 June 2003 decision approved payment of the difference remaining following the purchase and modification for payment towards and/or in full and final settlement of $600,000 in respect of the Past Gratuitous Care Claim.

23 On 27 June 2003 the second respondents lodged an Application for Review of the 8 May 2003 decision as varied by the 13 June 2003 decision in the Administrative Decisions Tribunal.

24 On 17 July 2003 the Protective Commissioner wrote to the second respondents’ solicitors referring to Re B [2000] NSWSC 44 as authority for the proposition that the 1983 Act did not give the Protective Commissioner power to make payments for past gratuitous care out of the estates of protected persons. As a consequence, the letter asserted, the Administrative Decisions Tribunal had no power to review the 8 May and 13 June 2003 decisions. The letter suggested, however, that Re B was authority for the proposition that the Supreme Court had inherent jurisdiction to authorise payments for past gratuitous care. The letter asked the solicitors to consider the matter and advise whether they would withdraw the appeal to the Administrative Decisions Tribunal.

25 The evidence does not reveal the response to that letter, however on 31 July 2003 the Protective Commissioner filed a motion in the Protective List in the Equity Division, paragraph one of which sought the Section 12 Direction.

26 In addition, in paragraph 2 of the motion, the Protective Commissioner sought an order that he be authorised to make payment for past gratuitous care to the second respondents in the sum of $150,000 out of D’s estate. That application is not the subject of the removal to the Court of Appeal. On 8 September 2003 a consent order was made in the Protective List staying the paragraph 2 application pending disposal of the Section 12 Application in this Court.

The Protective Commissioner’s Submissions

27 Section 12 of the 1983 Act provides, in substance, that the Supreme Court may, upon the application of the Protective Commissioner, give the Protective Commissioner such directions as the Court thinks necessary with respect to the exercise by the Protective Commissioner of the functions of the Protective Commissioner.

28 Quite properly, the Protective Commissioner did not adopt a proactive stance. His counsel assisted the Court with submissions as to the possible alternative interpretations of s 28.

29 D was named as the first respondent to the Protective Commissioner’s motion. Mr Balafoutis, who appeared for the Protective Commissioner, acknowledged that D was not a necessary party. His name appeared on the pleadings because the Protective Commissioner’s motion for directions was brought, consistently with practice, in the original proceedings in which the Protective Commissioner had been appointed as the manager of D’s estate.

30 The Protective Commissioner submitted that s 28(1)(b), in terms, gave the Commissioner power to make payments with respect to past gratuitous care. He pointed to the language of s 28(1)(b) permitting the application of the protected person’s monies for the purpose of “the maintenance, clothing, medicine and care, past and future, of the protected person”. He noted that s 28(1)(b) did not distinguish between paid and gratuitous care and, further, that it did not expressly exclude payments with respect to past gratuitous care. He referred to s 28(1)(c) which authorises the Protective Commissioner to make payments for the maintenance of the protected person’s dependents as an example of the Commissioner’s power to make payments when no legal obligation existed.

31 The Protective Commissioner’s alternative argument that s 28(1)(b) did not confer a power to make a payment to discharge a moral obligation turned on a rather fine distinction between a “payment for the purpose of past care” and “a payment with respect to past care”. He submitted that where the carer provided his or her services in the expectation of payment, such that the services would not have been provided without that expectation, it would seem appropriate to characterise a later payment to that carer as towards the purpose of care - the language used in the introductory words of s 28(1). However, as a provider of past gratuitous care did not provide services in the expectation of payment, any payment to the carer was not towards the purpose of care. Rather, it was “with respect to past care” because such a payment was for the purpose of discharging a moral obligation. The result, on this argument, was that a payment for past gratuitous care did not fall within s 28(1)(b) and the Protective Commissioner had no power to make such a payment.

32 The Protective Commissioner dealt with the four authorities in which his power to make a payment for past gratuitous care had been considered with different results in the following manner.

33 First, he pointed out that Re DJR, Re GDM and Re B were decided without the benefit of oral argument or a contradictor. The other case, Marinko v Masri dealt with the issue in the context of an action for damages for nervous shock.

34 Secondly, the Protective Commissioner drew attention to the fact that Powell J decided both Re DJR and Re GDM - apparently inconsistently. In the former, which concerned the management of damages paid under a settlement of common law proceedings, his Honour held (at 563E) that a number of provisions, including s 66(b) of the 1958 Act (which was in the same terms as s 28(1)(b) of the 1983 Act) did not permit the Court to authorise the making of a payment in respect of the provision of past gratuitous care, but that such a power could be found in the Court’s inherent jurisdiction.

35 In Re GDM, an action which also concerned the management of the estate of a person who had recovered damages for personal injury, Powell J held that the Court’s inherent jurisdiction did not extend to permitting a payment to carers in respect of past gratuitous care but that s 28(1)(b) justified a payment to GDM’s parents for their past gratuitous care.

36 The next authority to which the Protective Commissioner referred was Marinko v Masri [1999] NSWCA 364; (2000) Aust Torts Reports ¶81-581 where Handley JA (with whom Priestley JA and Sheppard AJA agreed) applied Re DJR (at [15]) to hold that the powers of the Court did not in terms authorise the making of voluntary payments in respect of past gratuitous care but the power to make such payments was derived from the Court’s inherent jurisdiction under the Royal Prerogative. The Protective Commissioner pointed out that in Marinko v Masri the Court of Appeal did not refer to Re GDM.

37 Finally the Protective Commissioner referred to Re B [2000] NSWSC 44, an application dealt with in chambers by Young J (as his Honour then was) without any representation, in which the Protective Commissioner sought approval of a payment to B’s mother for past gratuitous care. Young J held (at [11]) that the 1983 Act did not permit payment out of the estate to settle any moral obligation that the protected person may have had but said, apparently applying Re DJR, that the Court retained its inherent jurisdiction to authorise payments of this nature in appropriate cases. The Protective Commissioner pointed out that Young J did not refer to Re GDM or to s 28(1)(b) of the 1983 Act.

38 The Protective Commissioner submitted that while the review of authorities showed that three out of the four judgments in which the power to make payments for gratuitous care had been considered supported the view that the power could not be found in the 1983 Act, the only judgment which had considered s 28(1)(b) in any detail, Re GDM, had found that section to be the source of the relevant power.

39 The Protective Commissioner also submitted that if the power to make payments for past gratuitous care out of D’s estate could not be found in the 1983 Act and, in particular s 28(1)(b) thereof, such a power could be found in the Court’s inherent jurisdiction.

The second respondents’ submissions

40 The second respondents submitted that on its proper construction s 28(1)(b) conferred power upon the Protective Commissioner to make payments for past gratuitous care out of the estate of the protected person. They said that construction was supported by the language of the section and was consistent with the purpose of the 1983 Act which they contended was to provide for the management of the protected person’s estate for the benefit of the protected person.

41 They referred to Re ES and the Mental Health Act 1958 [1984] 3 NSWLR 341 at 343 where Powell J referred approvingly to Sargant LJ’s statement in Re Freeman [1927] 1 Ch 479 at 489 that:

“… a large view has been taken as to what is for the benefit of the lunatic and full play has been given to family considerations …”

42 The second respondents submitted that as the Commissioner’s discretion may be exercised under s 28(1)(b) in relation to “… care, past and future”, the only question was whether the Protective Commissioner may apply money towards that purpose and, in particular, past care, where such care had been provided gratuitously rather than where there was a subsisting legal liability to pay for such past care.

43 The second respondents argued that the language of the introductory words enlarged the discretion conferred by s 28 rather than confining it to the function of making payment in respect of debts and liabilities arising in connection with the matters specified in the subparagraphs of s 28.

44 The second respondents drew attention to the fact that s 28 conferred discretionary power upon the Protective Commissioner to “apply moneys” towards specified purposes in respect of personal matters affecting the protected person. They argued that the word “purposes” in the introductory words of s 28(1) indicated that the succeeding subparagraphs were intended to refer to categories of expenditure, some of which were matters of legal obligation, while others could be founded in moral obligations. They submitted that payments in relation to past gratuitous care fell into the latter category.

45 The second respondents drew attention to the language and structure of s 28 as indicating that subsections 28(1)(b) and (c) were intended to permit the application of monies to services and supplies intended to fulfil the personal needs of the protected person and the protected person’s family. They pointed to the fact s 28(1)(b) did not use the language of legal obligation used in subsection 28(1)(a) (“debts” and “expenses chargeable to the estate”) or the introductory phrase in subsection 28(1)(d) (“the payment of all proper costs, charges and expenses incurred in …”). They contended that the omission of words of legal obligation or references to “proper costs” in s 28(1)(b) supported the proposition that under the latter subsection payments may be made even if they did not relate to legal obligations.

46 The second respondents then submitted that the use of the words “past and future” in s 28(1)(b) recognised that the purposes specified in s 28(1)(b) would exist not only in the future but had also existed in the past, including possibly the period prior to the appointment of the Protective Commissioner as manager of the protected person’s estate.

47 Finally, dealing with the authorities, the second respondents submitted that, in truth, Re DJR and Re GDM were not inconsistent, as each was based on legislation which was different in effect. They drew attention to two distinctions. First, they pointed out that s 66(b) of the 1958 Act related only to “patients” whereas the same qualification was not found in s 28(1)(b). Secondly they drew attention to Powell J’s conclusion in Re DJR (at 563) that the language “payment … for the maintenance” in the 1958 Act suggested that the subject of the payment “must be the current, or future, maintenance of the … protected person”.

Statutory background

48 In Commissioner for Railways (NSW) v Agalianos (1955) 92 CLR 390 at 397 Dixon CJ said "The context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed". Section 28 must, therefore, be construed so that it is consistent with the language and purpose of all the provisions of the 1983 Act, while seeking to give meaning to every word of s 28. Thus, the process of construction must always begin by examining the context of the provision that is being construed: see generally Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at [69] - [71].

49 In determining the meaning the legislature is taken to have intended s 28 to have, it is appropriate to have regard to extrinsic materials: Bropho v Western Australia [1990] HCA 23; (1990) 171 CLR 1 at 20 including the “legislative history and antecedent circumstances”; Risk v Northern Territory of Australia & Anor [2002] HCA 23; (2002) 76 ALJR 845 per Gummow J at [83]; Geaghan v D’Aubert [2002] NSWCA 260; (2002) 36 MVR 542 per Stein JA (Handley JA and Foster AJA agreeing) at [22] - [23]; Hardman v Minehan [2003] NSWCA 130; (2003) 57 NSWLR 390 at [66].

50 While it has been said that resort to that history “all too rarely illuminates the meaning of the current provision” (Beckwith v R (1976) 135 CLR 569 per Mason J at 578) in this case, in my opinion, resort to the legislative history provides valuable guidance. In order to understand the meaning of the words used in s 28, it is necessary to “retrace the path of the draftsman” (Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg AG [1975] AC 591 at 645 - 646; app. Corporate Affairs Commission (NSW) v Yuill (1991) 172 CLR 319 at 322 per Brennan J (as he then was)).

51 Finally, it is important to bear in mind the requirement that the Court should prefer a construction that will promote the purpose or object underlying the Act: s 33 Interpretation Act 1987 (NSW); Bropho v Western Australia above, at 20; Project Blue Sky Inc v Australian Broadcasting Authority, above, at 381 - 382 [69] - [70].

52 The law concerning the management of the property of the mentally disabled can be traced to feudal times. It long preceded the law relating to the custody and treatment of the mentally disabled: The Origins and Development of the Protective Jurisdiction of the Supreme Court of NSW, the 2003 Francis Forbes Lecture on Australian Legal History delivered by the Hon PE Powell AM QC, 15 October 2003, Banco Court, Sydney (the “Powell Lecture”).

53 The Crown claimed a prerogative right to administer the estates of those suffering from mental disability as early as the fourteenth century: Statute of Praerogativa Regis later reprinted as two Acts, 17 Ed. II (1339) cc 9 and 10 (the “Prerogative Statutes”): Historical Notes on the Law of Mental Illness in New South Wales, the Honourable Mr Justice J H McClemens and J M Bennett (1964) 4 Sydney Law Review 49 (“McClemens and Bennett”).

54 The Prerogative Statutes recognised the Crown’s prerogative, but imposed limits on its operation obliging the Sovereign to make provision for the care and maintenance of the mentally ill person as well as the family out of the rents and profits of the mentally ill person’s estate: Theobald, The Law Relating to Lunacy, Stevens and Sons Limited, 1924 (“Theobald”) at 2; McClemens and Bennett at 49 - 50.

55 The Crown’s prerogative was said to be “a parental and protective jurisdiction for the benefit of the lunatic”: Theobald at 4. The notion of the jurisdiction being “parental” was drawn from “the concept of the sovereign as ‘parens patriae’ … ‘the father of the people’”: Powell Lecture.

56 After the establishment of the colony of New South Wales, statutes dealing with the custody, care and treatment of the mentally ill were passed and frequently amended between 1843 and 1868 (see McClemens and Bennett at 60 - 64). However, the “old Acts of Edward II [i.e. the Prerogative Statutes] formed the basis of the law of lunatics’ property in New South Wales … for ninety years” until expressly repealed by the Lunacy Act 1878 (NSW) (the “1878 Act”) (McClemens and Bennett at 50).

The

Lunacy Act

1878 (NSW)

57 Powell described the 1878 Act as intended to achieve “wholesale reform” (Powell Lecture). The Second Reading Speech to the Lunacy Bill in the Legislative Assembly (which appeared in the Sydney Morning Herald of 26 September 1878 - the official “Parliamentary Debates” did not begin until 28 October 1879) makes this plain. During the Second Reading Speech Mr Fitzpatrick, the Colonial Secretary, read a letter from Doctor Manning which amply demonstrates that the 1878 Act was the product of almost a decade’s research, consultation and debate. Doctor Frederick Norton Manning was one of the architects of the 1878 Act and was appointed the first Inspector-General of the Insane in New South Wales pursuant to it: Defining Madness, Peter Shea, Institute of Criminology Monograph Series, Hawkins Press, 1999 at 37. Doctor Manning wrote his letter, according to Mr Fitzpatrick, “to give a history of the Bill as it now stands for the information of the Colonial Secretary”.

58 An indication of the breadth of consultation which attended that 1878 Act is seen from the fact that the draft Bill had, according to Doctor Manning, been commented upon by Doctor W A F Browne, formerly Commissioner in Lunacy for Scotland, who described it as a “masterpiece” and “a digest of all our own Acts, and … meeting contingencies which we do not meet in Britain”. Its eclecticism was highlighted in Doctor Manning’s comment that:

“… a lengthened memorandum of mine, explanatory of the provisions of the Bill, is among the records of the Colonial Secretary’s Office, and … if it is considered necessary, I can mark against most of the sections references to the English, Scottish, Irish, Colonial and American Acts from which they have been drafted.”

59 Mr Fitzpatrick described Part VIII dealing with the “Management of the Estates of Insane Persons and Patients” as “almost wholly legal” and “drawn to enable the Court and the Master in Lunacy to deal with the estates of lunatics under all possible circumstances”.

60 Finally Mr Fitzpatrick observed that:

“He had formed the same opinion of this Bill as his predecessors, Sir Henry Parkes and Sir John Robertson. It was much needed, and its tendency was to make more tender the treatment of the insane without remitting any of the safeguards who (sic) now existed. It would tend to the economical management of the estates of the insane …”

61 The 1878 Act distinguished between the mentally ill depending upon their classification as either an insane person or an insane patient. An “insane person” was a person who was “for the time being … idiotic lunatic or of unsound mind and incapable of managing himself or his affairs and whether found insane by inquisition or otherwise”: s 3. An “insane patient” and “patient” was “any person detained at the commencement of the [Lunacy Act] in any public or private establishment in New South Wales for the reception of insane persons, and any person hereafter received into and detained in any hospital, reception-house, licensed house, or other place respectively appointed or licensed under the provisions of the [Lunacy Act] for the reception of the insane”: s 3. This distinction was carried through into the provisions dealing with the management of the estates of the mentally ill - the identity of the manager turned on the category into which the mentally ill person fell.

62 Section 92 dispensed with the procedure then known as the “commission de lunatico inquirendo” by which a specially summonsed civil jury determined whether the subject was an “idiot” or a “lunatic” (Powell Lecture) and replaced it with an application to the Supreme Court for a declaration that a person was of “unsound mind” and “incapable of managing his affairs”. Section 92 also gave the Supreme Court power to make consequential orders to render the estate of such a person available for the payment of “his debts and for the maintenance or benefit of himself and his family” and, if necessary, the appointment of a committee of his estate.

63 Subdivision (1) of Part VIII dealt with the “General Powers and Duties” of the Master in Lunacy. Section 105 provided for there to be a Master in Lunacy to “undertake the general care, protection and management or supervision of the management of the estates of all insane persons and patients in New South Wales”. The Master was to supervise the committees of insane persons and collect and administer the property and estates of all insane patients: s 105.

64 Section 106 gave the Court power, in order to give effect to an order under s 92, to order any real or personal property of the insane person to be “sold mortgaged charged or otherwise disposed of … and … the proceeds to be applied [by a relative of the insane person or some other fit or proper person] to the payment of the debts or to the maintenance of the benefit of the insane person or of him or his family” - the process of application was subject to the control and supervision of the Master in Lunacy.

65 Subdivision (2) dealt with the powers and duties of the Master in relation to the estates of insane patients. Section 141 gave the Master in Lunacy, in respect of the property and estate of any insane patient, the powers and authorities given to the committee of the estate of an insane person under Subdivision (3) of Part VIII. Section 144 gave the Master power to pay “out of the estate of any patient … such sum or sums for the maintenance of such patient and for the maintenance of his wife or other near relative and for the maintenance and education of his children as to the Master shall seem expedient and reasonable.” It also enabled the Master to “take such steps for the management and care of the property of any such patient and for the sale letting and disposal thereof and for the application thereof or of part thereof to the payment of the debts of the patient as to the Master may seem expedient.”

66 Subdivision (3) dealt with the management of the estates of insane persons. Section 151 provided:

(II) The discharge of any encumbrance on his estates.

debt or expenditure incurred

for his maintenance

payment of or provision for the expenses of his future maintenance

(VI) The payment of the costs of any proceeding or consequent on the petition under section ninety-two. …” (emphasis supplied)

67 Sections 158 - 166 enabled the committee of the estate of an insane person, under supervision of the Court, to exercise a variety of powers in relation to the insane person’s property, including convey land in performance of contracts (s 158), dispose of partnership property after the dissolution of a partnership (s 159), sell, partition or exchange land (s 160), sell land for building purposes (s 161), assign business premises (s 162), dispose of undesirable leases (s 163), execute leases (s 164) and accept a surrender of a lease and enter into a new lease (ss 165 - 166).

The

Lunacy Act Further Amendment Act

1893 (NSW)

68 The most significant statutory reform of the law relating to managing the estate of the mentally disabled for present purposes was the Lunacy Act Further Amendment Act 1893 (NSW) (the “1893 Act”). It was to be incorporated and read with the 1878 Act: s 1. The provisions of the Lunacy Act Further Amendment Bill which became the 1893 Act were drafted under the direction of the Master in Lunacy, the Judge in Lunacy and the Inspector-General of the Insane. Among the mischiefs it was intended to redress, according to Hon R E O’Connor, the Minister of Justice, was the fact that under the law as it then stood, there was no accurate description of the powers of the Master in Lunacy in the management and care of properties of “insane persons”. (The reference to “insane persons” was clearly a slip of the tongue, as the amendment addressed the Master’s powers in relation to “insane patients”). The Bill was intended to give the Master powers “under direction of the Court to enable the property of the insane to be managed more economically, and more to the advantage of the public and the insane patient”: Second Reading Speech, NSW Legislative Council, Parliamentary Debates, First Series, Vol 64, 22 March 1893 at p 5368.

69 It appears from the Second Reading Speech that the Bill was a response to decisions which had cast doubt on the Master’s power to lease property, however it is apparent that it was intended to confer wide powers, duties and functions upon the Master in Lunacy.

70 Section 21 of the 1893 Act gave the Master the management and care of the property of every insane patient. In addition to the powers and duties incidental to that management and care, it enumerated in 10 sub-clauses specific powers and duties with respect to the estates of insane patients such as receiving moneys, powers to lease land, to settle and compromise demands and to carry on a business the patient had carried on.

71 Significantly, s 25 stated:

“ 25 . The Master may apply money coming to his hands in respect of the estate of a patient and standing to the credit of the trust fund towards all or any of the following purposes:-

(a) The payment of the debts of the patient, and the repayment of expenses chargeable to his estate.
(b) His maintenance, clothing, medicine, and care, past and future, and in the event of his death, his funeral expenses:

(c) The maintenance of his wife or any child, parent, or other person dependent upon the patient, or for whose maintenance the patient provided when sane:
(d) The payment of all proper costs, charges, and expenses incurred in or about the care, protection, recovery, sale, mortgage, leasing, disposal, and management of his estate:

(e) The preservation and improvement of the patient’s estate:

(f) The investment, in manner hereinafter provided, of money not presently required for the above purposes.

(g) The payment to a patient or any person under sections twenty-eight and thirty of this Act.

Provided that the Master may report to and apply for the advice and directions of the Court or a Judge upon any of the matters aforesaid. And the Court or Judge may, upon such application as aforesaid, or upon the application of the patient, or any relative, friend, or creditor of the patient, direct such inquiries be made, and notices given as may be deemed advisable, and may make such orders in the premises as may be thought proper.” (emphasis supplied)

72 Sections 21 and 25 were substantially repeated in the Lunacy Act 1898 (NSW) (the “1898 Act”) and the 1958 Act and, with a significant alteration to which I will later refer, in s 24(2) and s 28(1) respectively of the 1983 Act.

The Lunacy Convention Act 1894 (NSW)

73 In 1894 s 14(1) of the Lunacy Convention Act 1894 (NSW) (the “1894 Act”) adopted the concept of an “incapable person” drawn from s 116(1)(d) of the Lunacy Act 1890 (Imp). An “incapable person” was, in substance, a person who was proved to the satisfaction of the Court to be incapable through mental infirmity, arising from disease or age, of managing his affairs. This amendment rendered the lunacy legislation capable of applying to people who were on the borderline of persons who may or may not be “lunatics in the common acceptance of the term”: Inre Browne [1894] 3 Ch 412 at 416 per Lindley LJ as he then was.

74 The 1894 Act was to be construed with the Lunacy Acts 1878 - 1893: s 18.

The

Lunacy Act

1898

75 The 1898 Act was substantially a consolidation of the 1878 Act and the Acts amending the 1878 Act which had been passed in the interim. It “laid down the pattern of lunacy law in New South Wales” for eighty years: McClemens and Bennett at 64.

76 The 1898 Act continued the distinction drawn in the 1878 Act between the management of the estates of the mentally ill depending upon their classification. The concept of an “incapable person” as adopted in the 1894 Act was included: s 3. The distinction was thus drawn between an incapable person, an insane person or an insane patient. “Insane person” and “insane patient” were defined in substantially the same terms as in the 1878 Act.

77 Sections 102 (which reflected s 92 of the 1878 Act) and 103 of the 1898 Act provided, in substance, that where a declaration that a person was an insane person or an incapable person respectively was made, the Court might make “all proper orders for rendering the property of such person, or the income thereof available for the payment of his debts and for the maintenance or benefit of himself and his family …”. In the case of an incapable person, s 103 provided that orders could be made “for the care and management of his property in all respects as if he were an insane person”. Section 102 provided for the appointment of a committee of the estate of the insane person, while s 103 provided that the Court may appoint a person to “undertake the care and management of the estate [of the incapable person] under the order and direction of the Court.”

78 Part VIII of the 1898 Act dealt with the “Management of the estates of insane persons and patients”. Subdivision 2 dealt with the powers and duties of the Master in respect to the estates of insane patients. Sections 21 and 25 of the 1893 Act became s 126 and s 131 of the 1898 Act respectively.

79 Subdivision (3) of Part VIII of the 1898 Act dealt with the management of the estates of insane persons. Section 149(1) substantially repeated s 151 of the 1878 Act.

80 Section 150 dealt extensively with the powers exercisable by the committee of the estate of an insane person under order and authority of the Court. Its sub-paragraphs encapsulated the powers previously found in ss 158 - 166 of the 1878 Act.

The

Mental Health Act

1958

81 The 1898 Act remained in force until repealed by the 1958 Act. When he introduced the Bill which became the 1958 Act, Mr Sheahan, the Minister for Health, described its object as being to bring New South Wales legislation dealing with the care, treatment and control of mentally ill persons “into line with modern thought”: Second Reading Speech, New South Wales Legislative Assembly, Parliamentary Debates, (Hansard), Vol 26, 5 November 1958, p 1868. Despite this statement, clauses 37 to 50 of Pt X dealing with protected and incapable persons and the committees and managers of their estates were “almost identical” with ss 101 to 114 of the 1898 Act: Second Reading Speech, New South Wales Legislative Assembly, Parliamentary Debates, (Hansard), Vol 26, 5 November 1958, p 2162.

82 Dealing with Pt XI (Management of estates of patients and certain other persons - ss 51 - 99), which generally repeated (with some amendments) Part VIII of the 1898 Act, the Minister said (at 2162 - 2164):

in a most sympathetic way and in the interests of the patient and his dependents

It is obvious that, in the interests of the patient and his estate, it is essential that the powers, duties and functions of the Master should be perpetuated

83 Under the 1958 Act, “patient” meant, relevantly, “any person admitted to and detained in any admission centre, mental hospital or authorised hospital in accordance with the provisions of this Act …”: s 3. “Protected person” meant “a person in respect of whom a declaration under s 38 is in force”: s 3. Section 38 provided that a Court may declare a person to be “mentally ill and incapable of managing his affairs”. An “incapable person” was a person who was proved to the satisfaction of the Court under s 39 to be through mental infirmity, arising from disease or age, incapable of managing his affairs: s 3. In the case of an incapable person, s 39 provided (as, in substance, had s 103 of the 1898 Act) that orders could be made “for the care and management of his property in all respects as if he were a protected person”.

84 Division 2 of Part XI dealt with the Master’s powers and duties in respect to the estates of patients. Section 59 provided:

59

85 Section 61 dealt with the Master’s powers in relation to the property of patients. It substantially repeated s 126 of the 1898 Act.

86 Section 66 dealt with the Master’s powers in relation to the disposition of a patient’s moneys. It substantially repeated s 131 of the 1898 Act, save for the addition of a power to take up the rights to issues of new shares to which a patient became entitled by virtue of existing shareholdings: s 66(f).

87 Division 3 dealt with the “Management of Estates of Certain Persons not being Patients”.

88 Section 81(1), which gave the Court power to raise moneys in certain circumstances, was in the same terms as s 149(1) of the 1898 Act save for the substitution of the expression “protected person” for “insane person”. Section 82 substantially repeated s 150 of the 1898 Act.

The

Protected Estates Act

1983

89 McClemens and Bennett (at 72) correctly predicted that “[o]ne can in no sense regard the Mental Health Act of 1958 as representing the final legislative provision in this field.” In 1971 the New South Wales Law Reform Commission observed that the “whole of the law relating to the property and affairs of mentally ill persons stands in need of basic overhaul”: Working Paper on the Mental Health Act 1958, New South Wales Law Reform Commission, 1971 at p 21 – 22 [2] (the “Working Paper”). That topic was beyond the Law Reform Commission’s Terms of Reference. It was reviewing the provisions of the 1958 Act which bore on the business of the Supreme Court’s Protective Jurisdiction. However the Working Paper made some comments and several recommendations which were ultimately reflected in the 1983 Act and a subsequent amendment to which I will later refer.

90 The law relating to the mentally disabled was substantially reformed in 1983. A number of cognate Bills, including the Protected Estates Bill, the Mental Health Bill, the Crimes (Mental Disorder) Amendment Bill and the Miscellaneous Acts (Mental Health) Repeal and Amendment Bill were introduced simultaneously. In the Second Reading Speech to the Bills, the Minister for Health, Mr Brereton, described them as representing “one of the most significant social reforms to be considered by this Parliament in recent decades … [because they] acknowledge and protect the individual rights of the mentally ill, rights too often ignored or suppressed in the past”: NSW Legislative Assembly, Parliamentary Debates, (Hansard), 22 November 1983 at p 3087.

91 Mr Brereton (at p 3090) described the Protected Estates Bill as replacing “the property provisions of the Mental Health Act 1958”, in order “to reform and modernise the procedures and powers relating to protective management.” Referring to cl 13 of the Bill which empowered the Supreme Court to make a declaration that a person was incapable of managing his or her affairs and order that the estate of that person be subject to management, the Minister observed that the provision was “enacted in the context of the traditional protective jurisdiction of the Supreme Court and is subject to judicial interpretation in terms of this traditional jurisdiction.” The Minister also stated (at p 3091):

“The Protected Estates Bill will allow the protective commissioner substantial powers to manage the properties or affairs of protected persons, but this is subject to the overall check that the Supreme Court is the ultimate authority.”

92 The 1983 Act commenced on 5 August 1985: s 2(2), Government Gazette No 112 of 2 August 1985, p 3923. It streamlined a number of aspects of the previous mental health regime. Significantly, the tripartite classification of the mentally disabled which had operated since the 1898 Act was replaced by the concept of the “protected person” who was “a person in respect of whom an order is in force under this Act or the Guardianship Act 1987 that the estate (or any part thereof) of the person be subject to management under this Act”: s 4

93 It appears that Powell J, as he then was, can take some responsibility for the reform apparent in s 13 of the 1983 Act. It appears that after he assumed responsibility for the work of the Protective Division in early 1982, he made representations to the government to have the law amended “to remove … at least in relation to applications for management orders, questions of ‘mental illness’ and ‘mental infirmity’ and to substitute as the ground for making a management order the subject person’s ‘incapacity to manage his affairs’”: Powell Lecture. This approach is apparent in s 13(1) which provided:

94 Part II dealt with the Protective Office. Section 5(1) provided that there should be a Protective Commissioner and a Deputy Protective Commissioner. Section 5(3) provided that a person while holding office as Protective Commissioner or Deputy Protective Commissioner might also hold an office in the staff establishment of the Supreme Court. Section 5(8) provided that the Protective Commissioner and the Deputy Protective Commissioner should, in their capacities as such, be officers of the Supreme Court.

95 Section 22 enabled the Court either to appoint a suitable person as manager of the estate of a protected person in respect of whom an order under section 13 had been made or to commit the management of the estate of any such protected person to the Protective Commissioner.

96 The elimination of the tripartite classification of the mentally disabled was reflected in the provisions dealing with the management of their estates – at least where the Protective Commission was involved. In this respect it might be noted that the Working Paper had commented that the powers and duties in ss 61, 66, 67, 81, 82, 89, 91 and 92 of the 1958 Act were “confusing because they are the result of borrowing from diverse sources” so that the “variety of expression … gives rise to puzzling questions of construction … for example s 61(g) and s 82(h)”: Working Paper at 58 - 59 [105] - [106]. Although not referred to in the Second Reading Speech to the 1983 Act, it appears probable that this criticism was instrumental in the reforms which led to the consolidation of the Protective Commissioner’s powers in the sections to which I now refer.

97 Division 3 of Part 3 dealt with the Protective Commissioner’s management of the estates of protected persons.

98 Section 24 set out the Protective Commissioner’s powers as to property. It was, in substance, a combination of s 61, which was in Division 2 and s 82, which was in Division 3 of Part VIII of the 1958 Act. Whereas s 82 of the 1958 Act had empowered the Supreme Court to authorise and direct the committee of the estate of a protected person to perform the enumerated functions, s 24 conferred the enumerated functions directly upon the Protective Commissioner. It provided:

24

Powers as to property

(1) In respect of the estate of a protected person the management of which is committed to the Protective Commissioner, the Protective Commissioner shall have, and may exercise:

(a) all functions necessary and incidental to its management and care, and

(b) such other functions as the Court may direct or authorise the Protective Commissioner to have or exercise.

(a) receive money, rent, income and profit of real and personal property,

(b) grant leases of property,

surrender a lease and accept a new lease,

accept a surrender of a lease and grant a new lease,

execute a power of leasing vested in the

protected person

having a limited estate only in the property over which the power extends,

(g) settle, adjust and compromise a demand made by or against the estate,

(h) make exchange or partition of property and give or receive money for equality of exchange or partition,

(i) carry on a business which the protected person had carried on, so far as may appear desirable for the purpose of more advantageously disposing of, or winding up, the business or preserving the business until the protected person is able to carry it on,

(j) agree to an alteration of the conditions of a partnership into which the protected person has entered, for the purpose of more advantageously disposing of an interest in the partnership or terminating liability,

(k) complete a contract for the performance of which the protected person is liable or enter into an agreement terminating the liability,

surrender, assign or otherwise dispose of, with or without consideration, onerous property,

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

,

Real Property Act 1900

99 Section 25 gave the Protective Commissioner power to employ agents to manage the protected person’s estate. Section 26 gave the Protective Commissioner all the functions the protected person would have had if not incapacitated including the power to execute documents. Section 27 required the Protective Commissioner to pay the protected person’s monies into a trust fund.

100 Section 28, which I have earlier set out, dealt with the disposition of money in the Protective Commissioner’s hands. The sub-paragraphs of s 28 were in substantially the same terms as s 25 of the 1893 Act, s 131 of the 1898 Act and, in turn, s 66 of the 1958 Act. However, again, whereas s 66 had applied only to a “patient” as defined in the 1958 Act, s 28 applied to all protected persons the management of whose estates had been committed to the Protective Commissioner. The following changes from the terms of s 66 should also be noted:

(a) Whereas s 66 had enabled the Master to apply “moneys standing to the credit of the current account of a patient in the trust fund …”, the introductory words of s 28(1) enabled the Protective Commissioner to apply “money comprising the whole or any part of the estate of a protected person …”;

1958 Act

or

101 Division 4 (ss 29 - 33) dealt with the management of estates by persons appointed by the Court as manager of the estate of a protected person pursuant to s 22. It did not apply to or in respect of a protected person whose estate was committed to the management of the Protective Commissioner: s 29. Section 30 enabled the Protective Commissioner to authorise the person appointed as manager to have such functions in respect of the estate as the Protective Commissioner specified - being functions of the same kind as those specified in s 24(2). Section 32 is an amalgam of portions of ss 38 and 39 of the 1958 Act dealing with the making of orders in relation to the property of a person the subject of a declaration under either of those provisions and s 81 of the 1958 Act. It relevantly provides:

“32 Orders by Court as to property

(1) The Court may make such orders as appear to it necessary for rendering the property and income of a protected person available for the payment of the debts of, and the maintenance and otherwise for the benefit of, the protected person and the family of the protected person and otherwise as it thinks necessary or desirable for the care and management of the estate of a protected person.

(2) Without limiting the generality of subsection (1), the Court may:

(a) order that any property of a protected person be sold, charged, mortgaged, dealt with or disposed of as the Court thinks most expedient for the purpose of raising or securing or repaying with or without interest money which is to be or which has been applied to any one or more of the following purposes:

(i) payment of the protected person’s debts or engagements,

(ii) discharge of any incumbrance on property of the protected person,

(iii) payment of any debt or expenditure incurred for the maintenance, or otherwise for the benefit, of the protected person,

(iv) payment of, or provision for the expenses of, future maintenance of the protected person,

102 The Miscellaneous (Mental Health) Appeal and Amendment Act 1983 (NSW) passed at the same time as the 1983 Act repealed the 1958 Act.

The

Guardianship and Protected Estates Legislation Act

2002 (NSW)

103 The 1983 Act was amended by the Guardianship and Protected Estates Legislation Act 2002 (NSW) which commenced on 28 February 2003: s 2 and Government Gazette No 54 of 28 February 2003 p 3505. It repealed subsections (3), (8) and (9) of s 5. This effectively means that the Protective Commissioner is no longer an officer of the Supreme Court, a role the Parliamentary Secretary, Mr Whelan, described as “not consistent with modern best practice”: Second Reading Speech New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 21 November 2002 at p 7422. This proposal had also been referred to in the Working Paper which had proposed making the Public Trustee the manager of the estates of patients on the basis that it was inconsistent with the functions of a Master under the Supreme Court Act which were “predominantly of a judicial character” also to have “direct functions of management of property”: Working Paper at 53 [87] - [88].

104 This history of New South Wales legislation dealing with the management of the property of the mentally disabled demonstrates two significant developments which may be broadly described. First, in the nineteenth century, the legislation was progressively amended to ensure that the powers of the Master to manage the estates of those confined to institutions “in all possible circumstances” could not be doubted. Secondly in consolidating the disparate sections which had dealt with the management of the estates of the mentally disabled the 1983 Act was plainly intended to confer upon the Protective Commissioner the broadest powers to undertake the role of managing protected persons’ estates. The latter change assumes significance in considering the “conflicting” authorities to which I now turn.

The “conflicting” authorities

105 The four cases which deal with the power to make payment for past gratuitous care from the estate of an incapable person or a protected person pursuant to either the 1958 Act or the 1983 Act stem more or less directly from the decision in Griffiths v Kerkemeyer (1977) 139 CLR 161. In that case, the High Court held that the damages awarded to a person who was permanently disabled as a result of the negligent act of another could include a sum representing the value of services rendered and to be provided gratuitously by members of the person’s family. The sum in question was said to be recoverable even though the plaintiff was under no legal liability to pay for the services. The Court also held that the plaintiff did not hold the sum in question on trust for the person who provided the services. Finally, it was held that the value of such services in general should be calculated by reference to their standard or market cost and not by the loss suffered by the person who provided them.

Re DJR and the Mental Health Act

1958

106 Re DJR concerned the power of the Protective Commissioner who had been appointed manager of DJR’s estate pursuant to s 39 of the 1958 Act, to pay moneys to DJR’s mother for her past voluntary services in caring for DJR. DJR had been injured as a child in a motor vehicle accident in which he sustained serious brain damage. Proceedings were taken on DJR’s behalf to recover damages from the owner of the motor vehicle in respect of his injuries. After a contested hearing Hunt J gave a verdict in DJR’s favour which included a sum of $70,700 determined to be the amount allowable for past gratuitous services provided to DJR by his mother. On appeal to the Court of Appeal the amount allowed in the award in respect of DJR’s mother’s past gratuitous services was reduced to $45,553. The proceedings were settled after an appeal had been taken to the High Court. The settlement was approved by the High Court (Re DJR at 559). The monies paid under the settlement were managed by the Protective Commissioner, who had been appointed manager of DJR’s estate pursuant to s 39 of the 1958 Act.

107 The Protective Commissioner filed a Report and Proposal in the Supreme Court proposing that the “Protective Commissioner be authorised to pay the sum of $60,000 to the mother of DJR, such sum to be paid out of the estate of DJR in recognition of past services rendered by the mother of DJR”.

108 Powell J (at 560 - 561) identified nine questions as requiring determination as a consequence of the Protective Commissioner’s Report and Proposal. Of these, the second and third and, arguably the first, bear upon the question raised by this application. They are:

“1. Whether, when an award of damages contains in it an amount of damages calculated as the value of voluntary services, the plaintiff is subject to any legal or equitable obligation to pay that sum to the person or persons who provided the voluntary services to the plaintiff;

2. If the answer to that question be in the negative, whether the Court nonetheless has power, when administering or supervising the administration of the estate of a person (sections 4, 12, 59) a protected person (section 38) or an incapable person (section 39) to pay, or to authorise the payment of the relevant sum or any other sum to the person or persons who provided the voluntary services to the patient, protected person or incapable person, in recognition of those past services;

(a) he is; or

administering the estate of the patient, or the committee of the estate of the protected person, or the manager of the estate of the incapable person?”

109 Hardly surprisingly, in the light of the decision in Griffiths v Kerkemeyer that the plaintiff did not hold damages calculated as the value of voluntary services on trust for the person who provided the services, Powell J (at 561) answered the first question in the negative.

110 Powell J then considered the second question. He referred to ss 38, 39, 59, 66 and 81(1) of the 1958 Act. He concluded that those provisions did not permit the Court to authorise the making of a payment in respect of the provision of past gratuitous care. He held (at 563) that those sections appeared to permit the Court to authorise or order payments only in two broad types of cases, they being:

Rawley v Rawley

Attorney-General v Montefiore

(b) payments for the maintenance and/or benefit of the patient, protected person or incapable person (ss 38, 39, 66(b)(c), 81(1)(c)(d)) and/or members of his family (ss 38, 39) - the phrase “payment … for the maintenance …” suggests that what is the subject of the payment must be the current, or future, maintenance of the patient, protected person or incapable person.”

111 Having decided that the statute did not “in terms” confer on the Court jurisdiction to authorise the payment being considered, Powell J nevertheless held (at 563) that jurisdiction to authorise such a payment could be found in the inherent jurisdiction of the Court or in the combination of the inherent jurisdiction of the Court and the 1958 Act.

112 Powell J concluded (at 564) that the interaction of the Charter of Justice (s XVIII) which conferred jurisdiction in lunacy upon the Supreme Court of New South Wales and ss 38, 39, 52(1) and 59 of the 1958 Act enabled the Court when dealing with the estates of protected persons and incapable persons, and the Master (and thus the Protective Commissioner - ss 51(2)(3)(4)) when dealing with the estate of patients, “to exercise all the powers which, in the past, were comprehended by the Royal Prerogative to deal with the estates of lunatics (or persons of unsound mind) and of idiots (or natural fools)”.

113 Powell J noted (at 564) that the inherent power of the Court derived from the Royal Prerogative was “very wide indeed”. He pointed out that the Court’s jurisdiction when administering the estates of lunatics to make donations and voluntary allowances out of the relevant estate was “established beyond question”, referring to Roper CJ in Eq’s statement to that effect in Griffin v Union Trustee Co of Australia Ltd (1947) 48 SR (NSW) 360 at 363.

114 Powell J pointed out that in the exercise of the inherent power, courts had historically made allowances to the family of the “lunatic” and to collateral relations, and to persons - even though they may have been strangers: see Re Whitaker (1889) 42 Ch D 119 - thought to have moral claims upon the lunatic. Although allowances to the family of a “lunatic” were, in general, restricted to allowances out of income, on occasion a settlement of part of the corpus of a lunatic's estate had been authorised as a means of providing for a member or members of his family - "family", in this context, being held to extend to illegitimate children: Griffin v Union Trustee Co of Australia Ltd above at 363 and the cases there cited.

115 Accordingly, his Honour held (at 564 - 565) that:

and the value of which services has been incorporated in an award of damages made to that person

116 Powell J also concluded (at 565 - 566) that the Protective Commissioner could exercise the jurisdiction of the Supreme Court to authorise the making of a payment in respect of past gratuitous care in relation to estates where he was performing the role of Master: see s 51(3) to (4) and s 52 of the 1958 Act and Part 76, rr 4A, 6(5), Supreme Court Rules (as then in force).

Re GDM and the Protected Estates Act 1983 (NSW)

117 Powell J next dealt with the issue of whether payment for past gratuitous care could be made out of the estate of a protected person in 1992, in Re GDM. The facts in Re GDM were somewhat more complex than those in Re DJR. GDM had suffered severe brain damage at age two months when he was thrown from a car owned by his father and being driven by his mother. The Protective Commissioner was appointed the manager of his estate pursuant to the 1983 Act.

118 GDM sued his parents for damages in respect of his injuries. His action was compromised for $2.5 million. It appears that that compromise involved a discount based, in part, on doubts as to whether or not GDM would be able to recover any amount in respect of past domestic care which had been provided by his parents. That doubt was based upon a proposition in Professor Luntz’s Assessment of Damages for Personal Injury and Death (2nd ed, 1983 pp 222 - 223) which, in substance, suggested that a plaintiff may not be able to recover Griffiths v Kerkemeyer type damages where the person who provides the services was, as in Re GDM, a defendant to the action. It is not necessary, for the purposes of this case, to assess the accuracy of that passage in Professor Luntz’s book, although I note that (at 61,689 - 61,690) Powell J recorded his reasons for doubting the correctness of the decisions upon which Professor Luntz had based his observations.

119 Re GDM appears to have been approached, therefore, on the basis that no part of GDM’s settlement included an amount referable to his parents’ past gratuitous care. Nevertheless, GDM’s parents formally claimed payment of an amount referable to their past domestic services plus interest, as well as foreshadowing a claim for a carer’s allowance for the future.

120 Powell J noted (at 61,686 - 61,687) that the fact that an amount representing the value of gratuitous services had been included in the plaintiff’s verdict gave rise to a moral obligation to the provider of the services, referring to Griffiths v Kerkemeyer, above, at 169 - 170 per Gibbs J (as he then was) and at 176 per Stephen J and Re DJR at 564 - 565.

121 Powell J considered (at 61,687) that any attempt to justify making a payment for expenses as an exercise of the inherent jurisdiction of the Court faced two difficulties. The first was that unless the expenses for which reimbursement was claimed formed, or could be said to have formed, part of the verdict which was later agreed upon, GDM’s parents could not be said to have had a moral claim upon his estate for reimbursement in respect of them. The second difficulty was that, if the authorities upon which Professor Luntz based his view were correct, then no such expenses could have been allowed as part of GDM’s verdict and, accordingly, GDM’s parents could not be said to have any claim on the estate for reimbursement in respect of them.

122 Accordingly, his Honour concluded that the Court could not, in the exercise of its inherent jurisdiction, authorise payments to GDM’s parents of the sums sought.

123 Powell J (at 61,690) agreed, however, with the Protective Commissioner’s suggestion that s 28(1)(b) of the 1983 Act could be used to justify payment to GDM’s parents for their past care and to reimburse them for part of the expenses said to have been incurred by them in respect of GDM. He held that recourse could be had to that power without reference to questions such as whether or not the amount proposed to be paid was, or could have been, comprised in any verdict, and whether or not the intended recipient of the proposed payment was the tortfeasor from whom damages were sought or obtained.

124 Powell J did not discuss s 28 in detail, observing only (at 61,690) that “[e]ven without the words which accompany it, the word ‘maintenance’, when applied in a context such as this, is a word of wide import, extending to ‘lodging, maintenance, care, medicine and clothing’ (see Fitch v Bermondsey 73 LJ KB 985 per Lord Alverstone CJ)”.

125 Powell J referred to Re DJR twice in his judgment in Re GDM (at 61,684 and 61,686) but did not refer to the similarity between the language of s 28(1)(b) of the 1983 Act and s 66(b) of the 1958 Act, which his Honour had held in Re DJR did not authorise the payment out of DJR’s estate of sums on account of past gratuitous care.

Marinko v Masri

126 Re DJR was applied in Marinko v Masri [1999] NSWCA 364; (2000) Aust Torts Reports ¶81–581. In that case, the respondent’s wife collapsed during an abortion at the appellants’ surgery and suffered severe and permanent brain damage. She required full time care. Her husband suffered nervous shock, grief and depression as a result of his wife’s accident. He left his employment and devoted himself to the care of his wife and two children. His wife, through her tutor, the Protective Commissioner, settled her claim against the appellants for $3.7 million, which included an amount representing his past gratuitous care of $317,200 and $2,726,850 for future care and management.

127 The respondent brought proceedings against the appellants seeking to recover damages for his nervous shock, grief and depression and for past and future economic loss. He refused to claim payment from the Protective Commissioner for the gratuitous care he had provided to his wife because he was concerned that if he died and care for his wife had to be provided at commercial rates, her estate would be exhausted within 15 years. The appellants claimed that this was a failure to mitigate which led to double dipping. The trial judge rejected the argument and awarded the respondent $455,170 damages.

128 The appellants appealed on a number of grounds of which the only one relevant for present purposes is their complaint that the trial judge had erred in not finding the respondent had failed to mitigate his loss.

129 In the course of considering this ground of appeal Handley JA (with whom Priestley JA and Sheppard AJA agreed), having observed that the respondent’s wife’s estate, including her damages, was being managed by the Protective Commissioner under the 1983 Act, referred approvingly at ([15]) to Re DJR, stating:

Mental Health Act

Re DJR

130 His Honour then set out Powell J’s conclusion in Re DJR (at 564 - 565) to which I have already referred and concluded (at [17]) “[t]here is therefore no doubt that the husband had every prospect of receiving most of the $317,200 awarded to his wife for his past gratuitous services if he made an application to the Commissioner for such payment.”

131 His Honour then considered the evidence and concluded (at [25]) that the appellants had failed to prove that the respondent had unreasonably failed to mitigate his damages.

132 Handley JA also considered the extent to which the respondent’s damages should be reduced by virtue of a family allowance the Commissioner paid to the husband out of the wife’s estate (at [44] - [46]). To the extent that part of those payments appeared to represent a living allowance for the husband and the children of the marriage and remuneration for his care of his wife, Handley JA (at [47]) characterised the payments as being “made pursuant to the powers of the Commissioner to apply the wife’s estate for her benefit and the benefit of her family” referring to ss 28(1)(b) and (c) of the 1983 Act.

133 Handley JA did not refer to Re GDM.

Re B

134 In Re B [2000] NSWSC 44 Young J considered an application in chambers by the Protective Commissioner as manager of B’s estate for approval of a proposed payment to B’s mother of a sum in recognition of her past services to B. B had been seriously injured when a passenger in a motor vehicle. She had been awarded $2.955 million in damages which included $370,000 on account of a Griffiths v Kerkemeyer claim. The whole amount of the verdict had been paid to the Protective Commissioner.

135 The proceedings were heard in Chambers without representation. Young J dealt with the question of whether there was a statutory basis to authorise the proposed payment to B’s mother as follows (at [11]):

“There is no provision in the Protected Estates Act 1983 to permit payment out of the estate to settle any moral obligation that the protected person may have had, cf s 24. However it has been held that the Court retains its inherent jurisdiction to authorise payments of this nature in appropriate cases.”

136 His Honour then referred (at [12], [13]) to a number of authorities supporting this proposition including Re DJR. He did not refer to Re GDM or, expressly, to s 28 of the 1983 Act.

137 In considering how to exercise the Court’s inherent jurisdiction, his Honour referred (at [14]) to the nineteenth century “rule” for mentally ill persons “that the Court would sanction gratuitous payments in appropriate cases (a) if it could be seen to be for the benefit of the protected person; or (b) that it was more likely than not that had the protected person remained sane, he or she would have made the payments.” His Honour illustrated that proposition by reference to a number of cases. He observed (at [16]) that cases in situation (b) were “justified by the Court on the basis that it is taking a ‘large view’ of what is for the benefit of the protected person”.

Other authorities dealing with payments for past gratuitous services

138 Powell J repeated the view he essentially expressed in Re DJR (at 564) that “it is undoubtedly open to the court, in an appropriate case to authorise the making, out of the estate of a mentally ill, or incapable, person of an ex gratia payment in recognition and satisfaction, of some moral claim upon that person” in Re ES and the Mental Health Act 1958 [1984] 3 NSWLR 341 at 343. He noted, however (at 343), that because the Court’s “overriding duty [was] to ensure that [the mentally ill, or incapable] person’s estate [was] so managed as to serve that person’s best interests” such payment might not be permitted where the estate was “not sufficiently large to permit full-time professional care to be afforded to the person in question”: see Re Darling (1888) 39 Ch D 208 at 211.

139 He illustrated (at 343 - 344) the lengths to which Courts would go to determine what was for the benefit of a lunatic by referring to Re Stoer (1884) LR 9 PD 120 in which the Lords Justices suggested that it may be a proper use of the Court's power to authorise a settlement of part of a lunatic's property in favour of his children in order to enable proceedings then to be taken to perpetuate the testimony of witnesses as to the alleged illegitimacy of the last child born to the lunatic's wife, from whom he had since been divorced.

140 In Re ES, Powell J concluded (at 344) that the mere fact that the fund available for the maintenance of the mentally ill, or incapable, person would be reduced by an ex gratia payment would not preclude a payment out of the estate being authorised. Rather, such a payment might be authorised if it could be shown that some benefit might thereby flow to the mentally ill, or incapable, person. His Honour used “benefit” in the sense of the “large view” taken of what is for the benefit of a mentally disabled person which might include having regard to family considerations: see also Re Freeman [1927] 1 Ch 479 at 489 per Sargent LJ.

141 The “large view” of what will benefit a protected person referred to by Powell J in Re ES and by Young J in Re B is reflected in other Australian authorities.

142 In Re N [2001] NSWSC 345; (2001) 33 MVR 237, Young J approved a payment out of the estate of an incapable person in recognition of past gratuitous care. His Honour’s reference (at [4]) to Re B makes it clear he gave approval in the exercise of the Court’s inherent jurisdiction. Again, his Honour referred to Re DJR but not to Re GDM.

143 In Jones v Moylan (2000) 23 WAR 65 the Full Court of the Supreme Court of Western Australia held (at [63] per McKechnie J with whom Kennedy J at [25]) agreed) that ss 59 and 60 of the Trustee Act (WA) which empowered a trustee to make payments from the income, or in certain conditions, the capital, for the maintenance, education, advancement or benefit of the beneficiary gave the trustee a discretion to make a payment for past gratuitous services as long as the trustee was satisfied that that payment was reasonable having regard to all the circumstances, including the need to preserve the trust fund and generate income.

144 In Beasley v Marshall (No 4) (1986) 42 SASR 407, the Full Court of the Supreme Court of South Australia considered the power of a manager under the Aged and Infirm Persons Property Act 1940 - 1984 (SA) to “apply any moneys … for the maintenance of the protected person”. The Court held that the Public Trustee had power to make appropriate payments to persons who had rendered gratuitous services by way of providing for an infant plaintiff’s needs in the past and to make future payments to persons who might render such services in the future.

145 King CJ (with whom Cox and Bollen JJ agreed) was of the view (at 410) that “the authorities show that a trustee with power to maintain is authorised to make payments which would not be legally recoverable by the person providing the maintenance and to make such payments with respect to past and future payments.” He cited a passage in Ford and Lee, Principles of the Law of Trusts (at p 587), as setting out the relevant law. In that passage the authors referred to the width of the discretion reposed in a trustee with power to maintain and the fact that decisions authorising trustees to make an allowance for past maintenance reflected “the policy of the law … that available income should be used for the proper maintenance and advancement of infant beneficiaries.”

146 In W v Q (1992) 1 Tas R 301, Crawford J considered an application by the Public Trustee for authority to pay, out of a disabled patient’s damages, amounts to his parents on account of past services, care, accommodation and expenses. Section 84(1) of the Mental Health Act 1963 (Tas) provided that the Supreme Court might, with respect to the property and affairs of a patient, do such things as appeared necessary or expedient for the maintenance or other benefit of the patient (s 84(1)(a)), for making provision for other persons (whether or not members of the patient’s family) for whom the patient might be expected to provide if not mentally disordered (s 84(1)(b)) and for making provision for any purposes for which the patient might be expected to make provision if not mentally disordered (s 84(1)(c)). Section 94(3) of the Mental Health Act 1963 (Tas) conferred the powers to apply property of a patient specified in s 84(1)(a) (b) and (c) on the Public Trustee. Crawford J (at 303 - 304) held that each of those provisions authorised the Public Trustee to make payments of the nature sought. His Honour added (at 305):

Beasley v Marshall (No 4)

147 In Public Trustee v Thompson [2000] ACTSC 4; (2000) 155 FLR 18, Miles CJ dealt with an application by the Public Trustee for the Australian Capital Territory for directions pursuant to s 25(7)(b) of the Public Trustee Act 1985 (ACT) which relevantly provided that the Public Trustee should, subject to any direction to the Court, apply money or property held upon trust “for the maintenance, advancement or benefit of the person in whose favour the relevant judgment … was given.” The issue was whether part of trust funds held by the Public Trustee on behalf of a person under the age of eighteen years who had recovered damages for personal injuries could be paid out to the extent that the funds represented the value of gratuitous care. Miles CJ held (at [4]) that there was no doubt the Court had power to make orders of the nature sought. He referred approvingly to Powell J’s judgment in ReES and the Mental Health Act 1958 [1984] 3 NSWLR 341 at 343:

ex gratia

148 Finally I note that the proposition that a Court may direct a Trustee to pay a third party out of an award of damages recovered by an infant plaintiff, a sum representing the value of past gratuitous services has been recognised in Queensland in Goode v Thompson [2001] QSC 287; (2001) Aust Torts Reports ¶81-617 at [148] - [165] per Ambrose J and in Grevett v McIntyre [2002] QSC 106 at [5].

Consideration

149 As long ago as Heydon’s Case (1584) 3 Co Rep 7a; (1584) 76 ER 637, the Barons of the Exchequer held that the common law before the making of the Act was relevant to the process of statutory interpretation. Examination of the common law dealing with the management of the property of the mentally disabled demonstrates a powerful body of jurisprudence permitting the payment out of the estate of a mentally disabled person of sums which the mentally disabled person was under no legal obligation to pay and to which the recipients had no corresponding legal entitlement. Such payments would be made even though they related to past acts.

150 This jurisprudence was founded on the proposition that the Court exercised the jurisdiction to manage a lunatic’s estate for the benefit of the lunatic, but took “a large and liberal view of what that benefit is, and [would] do on behalf of the lunatic not only what may directly benefit him, but what, if he were sane, he would as a right-minded and honourable man desire to do”: Theobald at 380. The paramount consideration was the interest of the patient: Ex parte Annandale(Marchioness) (1749) Amb 79 per Lord Hardwicke; Attorney-General v Marquis of Ailesbury (1887) 12 App Cas 672 at 688 per Lord Macnaghten; In re Gist (A Person of Unsound Mind) [1904] 1 Ch 398 at 411.

151 Payments on account of past gratuitous care would be made in the exercise of the court’s inherent jurisdiction where appropriate. According to Theobald (at 410), where “a lunatic has been maintained at the expense of another person and becomes entitled to an unexpected accession of fortune, a claim is often made for repayment of the amount expended in past maintenance.” In such cases, even where there was no legal claim to repayment, Theobald said the Judge in Lunacy would “do what the lunatic would have done if he had been sane and a right-thinking person” and expressed the view that “[s]uch a man would be quick to repay money spent for his benefit, if able to do so.”: ibid. The amount to be repaid, however, would depend upon the circumstances, in particular the “scale of the expenditure” and the “amount of the lunatic’s fortune”: ibid. The same approach was apparently taken in relation to a husband, even though he was “obliged to maintain his wife to the best of his ability” - once again, the Court would have regard to “what the lunatic wife would have done if she had been sane”: Theobald at 411.

152 The principle that the Court would sanction payments if the mentally disabled person would have made them if sane was enunciated by Lord Eldon in Ex parte Whitbread; Re Hinde (1816) 2 Mer 99, 103; (1816) 35 ER 878, 879: see Re B at [16]. His Lordship stated that the Court would not refuse to make a voluntary payment “for the benefit of the lunatic, that which it is probable the lunatic himself would have done”.

153 In Re B (at [16]) Young J referred to Re Darling (1888) 39 Ch D 208, 213 and Re ES as cases which showed that such voluntary payments were justified by the Court on the basis of “taking a ‘large view’ of what is for the benefit of the protected person”.

154 Other illustrations of the “large view” given by Young J (at [17] - [19]) were payments authorised to provide a pension for an old servant: Re Carysfort (1840) Cr & Ph 76; 41 ER 418, payment for articles with a solicitor for a son: Re Alderson (1808) referred to in Collinson "A Treatise on The Law Concerning Lunatics" (Reed, London, 1812) Vol 1 p 244, and an allowance for a daughter on marriage: Re Drummond (1836) 1 My & Cr 627; 40 ER 516. In Re Frost (1870) LR 5 Ch App 699, 702 where there was a large surplus of income and the lunatic had supported poor relations when she was sane and they would be beneficiaries on her death, the Court authorised payment of income to relieve their poverty even though they had no legal entitlement. In Re Strickland (1871) LR 6 Ch App 226 where there was surplus income, the heiress and sole next of kin wished to contribute £250 towards the building of a new church and as the Court was of the view that this may have been what the lunatic wanted and the heiress would be the only one to suffer, the allowance was made.

155 In Re Whitaker (1889) 42 Ch D 119 Cotton LJ (at 126) and Lindley LJ (at 128) permitted a large sum to which the petitioner had no legal entitlement to be paid out of the estate of a man found of unsound mind on an inquisition of lunacy. The Court regarded the sum as a “debt of honour” whose payment they were justified in ordering on the basis that the lunatic, when of sound mind, intended to honour it.

156 Powell J was undoubtedly referring to this body of jurisprudence when, in Re DJR and in Re ES, he expressed the view that it was open to the court, in an appropriate case, to authorise an ex gratia payment out of the estate of a mentally ill or incapable person in recognition and satisfaction of some moral claim upon that person.

Textual analysis

157 The plain words of s 28(1)(b) authorise the Protective Commissioner to make a payment out of the protected person’s estate for past maintenance or care. Leaving aside for the present both Re DJR and Re GDM, the question is whether that power can be exercised where the past maintenance or care was provided gratuitously. In my view s 28 does authorise the Protective Commissioner to make payments in respect of past maintenance or care even though there is no legal obligation to make such a payment but only a moral obligation and a reciprocal moral claim.

158 The interpretation is supported first by the language of s 28 - the direct context in which s 28(1)(b) appears. As the second respondents submitted, the subparagraphs in s 28(1) refer to both to matters of legal and moral obligation.

159 Turning first to s 28(1)(a), I note that Powell J held in Re DJR (at 563) that both words comprehended a “legally enforceable obligation”.

160 Section 28(1)(a) of the 1983 Act uses the expression “debts and engagements”. However, in my view the word “engagement” is not limited to legally enforceable obligations. Significantly, it did not carry that limited connotation when it was first used in s 151 of the 1878 Act.

161 The meaning of the term “engagement” as it appeared in the proviso in s 2 of the NSW Constitution Act 1855 (Imp) and in particular, the phrase in that section “contracts, promises or engagements”, was considered by Drummond J in The Wik Peoples v State of Queensland (1996) 63 FCR 450. His Honour found (at 464 - 465) that in the first half of the nineteenth century the term “engagement” was “in common use” like the term “promise” to “describe government undertakings with respect to grants of interest in Crown land that did not amount to arrangements legally binding on the Crown.” Drummond J’s historical researches revealed the term “engagements” to refer to something in the nature of a commitment, but not necessarily a legal obligation. It might be presumed that the meaning of the term did not undergo a limitation between 1855 and 1878. That that is so is borne out by the dictionary meaning given to “engagement” which includes both “a formal promise, agreement, undertaking, covenant” and a “moral or legal obligation”: The Shorter Oxford English Dictionary (3rd Ed). It seems sensible to assume, therefore, that when the word “engagements” was used in s 151(a) of the 1878 Act, where, it will be recalled, it was used in contradistinction to the word “debts” (“debts or engagements”) it was intended to refer to something which may not amount to a legally enforceable obligation.

162 Attorney General v Montefiore (1888) 21 QBD 461 to which Powell J referred in support of the proposition that “engagements” referred to a legally enforceable obligation, concerned the question whether a covenant to transfer stock and shares to trustees in order to make provision for an endowment, constituted a disposition of property so as to be subject to succession duty pursuant to s 2 of the Succession Duty Act 1853. “Personal property” included “money payable under an engagement”. Both Manisty J (at 464) and Charles J (at 464) held that the covenant constituted an “engagement” to pay money so as to be caught by the definition of “personal property”. The question whether the covenant constituted a legally enforceable obligation was not considered expressly, although it appears to have been assumed. In my view that case does not detract from the significance of the fact that “engagements” was capable of referring to something which was of the nature of a moral obligation only.

163 When “engagements” was carved out of s 81 of the 1958 Act and inserted into s 28(1)(a) the drafter connected it to the word “debts” with the conjunction “and”. That word should be given its ordinary meaning: Victims Compensation Fund Corporation v Brown [2003] HCA 54; (2003) 201 ALR 260 at [13] per Heydon JA (with whom McHugh ACJ, Gummow, Kirby and Hayne JJ agreed). In the present context, the use of “and” to join the two terms indicates a legislative intention to list purposes towards which the Protective Commissioner could apply money comprising part of the protected person’s estate. There was no point to using the word “engagements” if it had the same meaning as “debts”. The word was added to the word “debts” because it carried a different meaning. It is not superfluous. It must be given a meaning: Project Blue Sky Inc v Australian Broadcasting Authority, above, at [71].

164 In my opinion, therefore, the expression “debts and engagements” is not a hendiadys. “Engagements” is not a synonym for “debts”: cf Victims Compensation Corporation Fund v Brown [2003] HCA 54; (2003) 201 ALR 260 at [34]. Its use in s 28(1)(a) indicates the legislature’s intention that the moneys in the protected person’s estate could be applied by the Protective Commissioner not only to discharge legally enforceable obligations, but also to meet a commitment which was a moral obligation only.

165 Section 28(1)(b) expressly permits the Protective Commissioner to make payment in respect of “past maintenance.” It does not, in terms, state that such payments can be made where there is only a moral rather than a legal obligation to do so. However, when one has regard to the circumstances in which these terms were first included in lunacy legislation in New South Wales, it is clear they were intended to enable the property of the “insane patient” to be managed to that patient’s benefit. There is every reason to think that the legislature intended to permit payments in respect of “past maintenance” in the same manner as the Courts had permitted such payments to be made in their inherent jurisdiction.

166 Subsection 28(1)(c) deals with the maintenance of other members of the protected person’s family or others for whom the protected person “would be expected to provide”. Those words, in my view, direct attention to the protected person’s moral obligations. They reflect the common law position of which Young J spoke in Re B. They are expressly included in subsection 28(1)(c) to assist in identifying those who, while not members of the protected person’s family, might also be the subject of maintenance payments from the estate.

167 The 1983 Act is both beneficial and protective. It is consistent with the approach taken to the interpretation of such legislation that a construction which will afford the “fullest relief which the fair meaning of its language will allow" should be adopted: Bull v Attorney-General (NSW) (1913) 17 CLR 370 at 384 per Isaacs J; Commissioner of State Revenue (Vic) v Royal Insurance Australia Ltd (1994) 182 CLR 51 at 98 per Dawson J; Marks v GIO Australia Holdings Ltd [1998] HCA 69; (1998) 196 CLR 494 at 528 per Gummow J; ICI Australia Operations Pty Ltd v WorkCover Authority of New South Wales [2004] NSWCA 55; (2004) 1 DDCR 259 at [349].

168 In my opinion a textual analysis supports the Protective Commissioner having the power to make the payments under consideration.

Legislative purpose

169 The conclusion that s 28(1)(b) authorises the Protective Commissioner to make payments in respect of past maintenance or care even though there is no legal obligation to make such a payment but only a moral obligation and a reciprocal moral claim is consistent with the purposes of the 1983 Act.

170 The scheme of the 1983 Act demonstrates an intention that the Protective Commissioner should have plenary powers to manage the estate of the protected person. The 1983 Act substantially enlarged the scope of the Protective Commissioner’s direct management powers. They were no longer limited as they had been under the previous legislation to the management of the estates of those who had been admitted to institutions. They extended to include, subject to a s 22 order, the estates of those whose estates had previously been managed by either the Court (s 81, 1958 Act) or the committee if authorised by the Court (s 82, 1958 Act).

171 Thus the legislature clearly intended the Protective Commissioner to be able to manage the estate in all respects as if acting as the Court had previously been empowered. As Mr Brereton said, the 1983 Act gave the Protective Commissioner “substantial powers”. This does not necessarily answer the question because, of course, in Re DJR, Powell J held that the power to make payments in respect of past gratuitous care could not be found in any of the relevant provisions of the 1958 Act, including those which conferred powers upon the Court, but only in the Court’s inherent jurisdiction.

172 However, subject to what I will shortly say about the decision in Re DJR, to the extent that that decision can be regarded as holding that the words “the maintenance, … and care, past and future” did not permit payments in respect of past gratuitous care, it was, with respect, erroneous. It neither gave plain meaning to those words nor reflected the purpose of the 1958 Act. When one has regard to the circumstances in which the power to make payments in respect of “maintenance … and care, past and future” was first conferred upon the Master in the 1893 Act, it is plain that the legislature intended to confer broad powers for the benefit of the protected person, powers to be exercised as that person would if still mentally capable. As the contemporaneous jurisprudence demonstrates, the courts had frequently held that such a person would make payments in discharge of a past, albeit moral, obligation.

173 The notion that the legislature may have seen fit to permit the manager of the estate of a mentally disabled person to discharge obligations which were not legally enforceable is readily comprehensible. The manager stands in the shoes of a person who is unable to manage his/her affairs by virtue of circumstances beyond his/her control. The manager exercises a protective and benevolent function, protective in the sense that the manager’s task is to ensure the estate is managed in a manner to secure the protected person’s estate for that person’s continued maintenance. In this respect the 1983 Act and its predecessors reflected the “parental and protective” jurisdiction historically exercised by the Crown both in exercise of its prerogative and pursuant to the Prerogative Statutes.

174 The legislative history supports the proposition that the repeal of the Prerogative Statutes in New South Wales by the enactment of the 1878 Act was intended to confer plenary powers to “deal with the estates of lunatics under all possible circumstances”. Thus the “parental and protective” jurisdiction was continued, albeit reflected in enumerated powers.

175 There are, therefore, in my view, four reasons to conclude that the power conferred on the Protective Commissioner in s 28(1)(b) includes a power to apply monies from the estate of the protected person for past gratuitous maintenance and care.

176 First, the language of s 28(1)(b) indicates that payments can be made on account of past maintenance and care.

177 Secondly, having retraced the path of the drafter, such an interpretation is supported by the legislative history.

178 Thirdly, it is consistent with the context, general purposes and policy of the provision and the 1983 Act that that power should be interpreted to include the application of monies towards past gratuitous care.

179 Finally, such an interpretation reflects the jurisprudential context in which the words “maintenance and care, past and future” were originally inserted in New South Wales legislation dealing with the mentally disabled. It is also consistent with the jurisprudence in the several states and territories of Australia.

A possible resolution of the “conflicting” authorities

180 Accordingly, in my opinion, Powell J was correct to hold in Re GDM that s 28(1)(b) empowered the Protective Commissioner to make payment for past gratuitous care out of the estate of the protected person even when there was no legal obligation to make the payment.

181 While this was the conclusion reached without hesitation by Powell J in Re GDM, the fact that his Honour reached the opposite view in Re DJR requires that that decision be subjected to close scrutiny.

182 It appears that in Re DJR his Honour did not address either the reference in s 66(b) of the 1958 Act to “maintenance … or care, past or future” or the reason those words were inserted in the 1878 Act by the 1893 amendments. That history, which I have earlier recorded, refers to the doubts which were entertained about limitations upon the Master’s power to manage the estate of patients. Section 25 of the 1893 Act was clearly intended to dispose of those doubts by conferring upon the Master wide powers which reflected the inherent jurisdiction of the Court to authorise payments out of the estate under management, even in relation to past acts in relation to which there was no legal obligation.

183 While it is curious that his Honour made no reference to the legislative history or the words “maintenance … and care, past and future” in s 66(b), there is, however, in my view, a sensible explanation for the decision in Re DJR, albeit that it is not one to which Powell J expressly referred. It lies in the demarcation between the powers of the Master and the Court which existed in the 1958 Act, but was altered in the 1983 Act.

184 DJR was an “incapable person”, having been the subject of a s 39 declaration and order. That meant, in turn, that the Court had the general power to “make all proper orders for rendering [his] property and income … available … for the maintenance and benefit of himself and his family” as well as the power to make orders for the care and management of his property as if he were a “protected person”: s 39. The Court’s powers to deal with a “protected person” appeared in Division 3 of Part XI. Section 81(1), which I have already set out, was the only provision which dealt explicitly with the application of the protected person’s property. It will be recalled that s 81(1)(c) enabled such moneys to be applied to the purpose of “payment of any debt or expenditure incurred for his maintenance or otherwise for his benefit” while s 81(1)(d) enabled moneys to be applied for the “payment of or provision for the expenses of his future maintenance”. There was no reference to “past” maintenance or care.

185 Section 66(b), in which the words “maintenance … and care, past and future” appeared, applied only to the Master’s powers to apply moneys in relation to a “patient”. In other words it was not a statutory power which applied to a “protected person” such as DJR. Hence, it might be inferred, Powell J’s recourse to the inherent jurisdiction.

186 It is true that Powell J did not expressly state his decision in Re DJR in these terms. However, it is plain that, on the facts, s 66 could not have been a source of power of the Protective Commissioner to deal with DJR.

187 By the time Powell J dealt with the same issue in Re GDM, the structure of the legislative framework was completely different. While there are some similarities between the provisions of the 1958 and the 1983 Acts dealing with the management of the estates, there are substantial and deliberate differences. The Protective Commissioner’s powers under Part 3, Division 3 extended to all protected persons the management of whose estates were committed to the Protective Commissioner. This included the power to apply money pursuant to s 28(1)(b). GDM was a “protected person”. There was, therefore, no doubt that the Protective Commissioner had the powers reposed in him including applying GDM’s estate towards “past maintenance”.

188 When Re DJR is understood in the context that the only provisions of the 1958 Act dealing with DJR’s particular circumstances and, in particular, the power to make orders for his maintenance and benefit were found in s 39 and s 81, Powell J’s decision is more explicable.

189 Thus, when understood by reference to the different statutory regimes in force when they were decided, it can be seen, in my view, that Re DJR and Re GDM are, arguably, not conflicting authorities. However, it must be recognised that they “send different messages” (Evans v Marmont (1997) 42 NSWLR 70 at 72 per Gleeson CJ and McLelland CJ in Equity). Even though, on my analysis, having regard to the fact that s 66(b) did not apply to DJR, so that Powell J’s apparent conclusion that its terms did not warrant the payment under consideration was obiter, the decision’s limitations should be acknowledged. Re DJR does not apply to the 1983 Act. Re GDM correctly applied s 28(1)(b) and warrants an affirmative answer to the Direction sought.

190 This leaves the question of how to deal with Marinko v Masri.

191 The conclusion that s 28(1)(b) of the 1983 Act empowers the Protective Commissioner to make payment for past gratuitous care out of the estate of a protected person does not, to the extent that such a conclusion appears to conflict with this Court’s decision in Marinko v Masri, involve a departure from the doctrine of precedent.

192 First, Handley JA’s statement (at [15]) that “the powers of the Court and the Commissioner under this Act, like its successor the Mental Health Act 1958, do not in terms authorise the making of voluntary payments …” was not a decision upon a question which the Court had to determine.

193 Secondly, his Honour appears to have relied only upon Re DJR which, as I have explained, does not apply to the 1983 Act and did not refer to Re GDM where Powell J had reached the opposite conclusion. While Re GDM was not an authority which was binding upon Handley JA, it was a decision at the same level of judicial reasoning as Re DJR, upon which his Honour relied in expressing his opinion. In my view, the decision in Marinko v Masri was given per incuriam.

194 Finally, for the reasons I have already expressed, Handley JA’s opinion about the power of the Court and the Protective Commissioner under the 1983 Act was erroneous. His Honour did not elaborate on the reasons for his opinion. He did not refer to s 28(1)(b) and explain why it should not be given its ordinary meaning.

195 For those reasons I would not regard myself as bound by Marinko v Masri: see Bridges v Bridges and Hooper (1944) 45 SR (NSW) 164 at 172 per Jordan CJ; Bennett & Wood Ltd v Orange City Council [1967] 1 NSWR 502 at 503 - 4 per Wallace P, per Walsh JA at 505 and at 512 per Holmes JA; Nguyen v Nguyen (1990) 169 CLR 245 at 268 - 269 per Wilson, Toohey and McHugh JJ.

196 Finally I turn to Re B. While Re B is not a judgment of the Court of Appeal, it is a judgment to which great weight should also be accorded being that of a judge of great distinction and experience. However, once again I note that while Young J referred to Re DJR, he did not refer to Re GDM or s 28(1)(b). In my view Young J’s statement that no provision of the 1983 Act permitted payment in respect of gratuitous care out of the estate of a protected person was erroneous.

Conclusion

197 I would answer the question posed by the s 12 Application by stating that:

Protected Estates Act

Law reform

198 Finally I note the curiosity that despite the consolidation of the disparate powers and duties from the 1958 Act into ss 24 and 28, s 32 substantially repeats s 81 of that Act. It thus carries the potential, to echo the Working Paper, that the “variety of expressions” may give rise to “puzzling questions of construction”. I would suggest that s 32 be brought into line with ss 24 and 28.

Orders

199 The Protective Commissioner did not seek a costs order in the originating process. It would be customary, however, that the costs of such an application would be paid out of D’s Estate. Power to make such an order is found in s 77 of the 1983 Act. Accordingly, I propose that such an order should be made although the parties should have liberty to apply to make submissions in relation to it if appropriate.

200 I propose the following orders:

1. Pursuant to s 12 of the Protected Estates Act 1983 (NSW), the Court directs that the Protective Commissioner has power under the Protected Estates Act 1983 (NSW) and in particular s 28(1)(b) thereof to make payment for past gratuitous care out of the estate of the protected person.

2. Costs of the section 12 Application to be paid out of the Estate of the First Respondent.

3. The parties have liberty to apply within 7 days in relation to order 2.

4. Order that the matter be remitted to the Protective Judge.

**********

Last Modified: 07/06/2004

Citations

Protective Commissioner v D [2004] NSWCA 216

Most Recent Citation

Cases Citing This Decision

20

Harrison v Melhem [2008] NSWCA 67

DPP v El Mawas [2006] NSWCA 154

Protective Commissioner v "D" & (No 3) [2005] NSWCA 31

Cases Cited

28

Statutory Material Cited

20

Re B [2000] NSWSC 44

Re N [2001] NSWSC 345

Goode v Thompson [2001] QSC 287

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CITATION:	The Protective Commissioner v "D" & Ors [2004] NSWCA 216
HEARING DATE(S):	24 November 2003
JUDGMENT DATE:	5 July 2004
JUDGMENT OF:	Mason P at 1; Giles JA at 2; McColl JA at 7
DECISION:	1. Pursuant to s 12 of the Protected Estates Act 1983 (NSW), the Court directs that the Protective Commissioner has power under the Protected Estates Act 1983 (NSW) and in particular s 28(1)(b) thereof to make payment for past gratuitous care out of the estate of the protected person. 2. Costs of the section 12 Application to be paid out of the Estate of the First Respondent. 3. The parties have liberty to apply within 7 days in relation to order 2. 4. Order that the matter be remitted to the Protective Judge.
CATCHWORDS:	PROTECTED ESTATES - Protective Commissioner - Powers - whether the Protective Commissioner has power under the Protected Estates Act 1983 (NSW) to make payment for past gratuitous care out of the estate of the protected person. (D)
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 (NSW) s 53(6) Aged and Infirm Persons Property Act 1940 - 1984 (SA) Guardianship and Protected Estates Legislation Act 2002 (NSW) s 2 Interpretation Act 1987 (NSW) s 33 Lunacy Act 1878 (NSW) s 3, s 92, Pt VIII, Subdiv (1), s 105, s 106, Subdiv (2), s 141, s 144, Subdiv (3), s 151, s 151(a), s 158, s 159, s 160, s 161, s 162, s 163, s 164, s 165, s 166 Lunacy Act 1890 (Imp) s 116(1)(d) Lunacy Act 1898 (NSW) s 3, s 102, s 103, Pt VIII, Subdiv (2), s 126, s 131, Subdiv (3), s 149(1), s 150 Lunacy Act Further Amendment Act 1893 (NSW) s 1, s 21, s 25 Lunacy Convention Act 1894 (NSW) s 14(1), s 18 Mental Health Act 1958 (NSW) s 3, s 38, s 39, Pt X cll 37-50, Pt XI, s 51, s 52, s 52(1), Div 2, s 59, s 61, s 61(g), s 66, s 66(b), s 66(f), s 67, Div 3, s 81, s 81(1), 81(1)(a), s 81(1)(c), s 81(1)(d), s 82, s 82(h), s 89, s 91, s 92 Mental Health Act 1963 (Tas) s 84(1), s 84(1)(a), s 84(1)(b), s 84(1)(c), s 94(3) Miscellaneous (Mental Health) Appeal and Amendment Act 1983 (NSW) New South Wales Constitution Act 1855 (Imp) s 2 Protected Estates Act 1983 (NSW) s 2(2), s 4, Pt II, s 5(1), s 5(3), s 5(8), s 5(9), s 12, Pt III, s 13, s 13(1), s 22, Div 3, s 24, s 24(2), s 25, s 26, s 27, s 28, s 28(1), s 28(1)(a), s 28(1)(b), s 28(1)(c), s 28(1)(d), Div 4, s 29, s 30, s 32, s 77 Public Trustee Act 1985 (ACT) s 25(7)(b) Statute of Praerogativa Regis, later reprinted as two Acts, 17 Ed. II (1339) cc 9 & 10 Succession Duty Act 1853 (Imp) Supreme Court Rules 1970 (NSW) Pt 76, rr 4A, 6(5) Trustee Act (WA) s 59, s 60 Workers Compensation Act 1987 (NSW) Pt 5 Div 3, s 151K
CASES CITED:	Attorney-General v Marquis of Ailesbury (1887) 12 App Cas 672 Attorney-General v Montefiore (1888) 21 QBD 461 Beasley v Marshall (No 4) (1986) 42 SASR 407 Beckwith v R (1976) 135 CLR 569 Bennett & Wood Ltd v Orange City Council [1967] 1 NSWR 502 Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg AG [1975] AC 591 Bridges v Bridges and Hooper (1944) 45 SR (NSW) 164 Bropho v Western Australia [1990] HCA 23; (1990) 171 CLR 1 Bull v Attorney-General (NSW) (1913) 17 CLR 370 Commissioner of State Revenue (Vic) v Royal Insurance Australia Ltd (1994) 182 CLR 51 Commissioner for Railways (NSW) v Agalianos (1955) 92 CLR 390 Corporate Affairs Commission (NSW) v Yuill (1991) 172 CLR 319 Evans v Marmont (1997) 42 NSWLR 70 Ex parte Annandale (Marchioness) (1749) Amb 79 Ex parte Whitbread; Re Hinde (1816) 2 Mer 99, 103; (1816) 35 ER 878, 879 Geaghan v D'Aubert [2002] NSWCA 260; (2002) 36 MVR 542 Goode v Thompson [2001] QSC 287; (2001) Aust Torts Reports 81-617 Grevett v McIntyre [2002] QSC 106 Griffin v Union Trustee Co of Australia Ltd (1947) 48 SR (NSW) 360 Griffiths v Kerkemeyer (1977) 139 CLR 161 Hardman v Minehan [2003] NSWCA 130; (2003) 57 NSWLR 390 Heydon's Case (1584) 3 Co Rep 7a; (1584) 76 ER 637 ICI Australia Operations Pty Ltd v WorkCover Authority of New South Wales [2004] NSWCA 55; (2004) 1 DDCR 259 In re Browne [1894] 3 Ch 412 In re Gist (A Person of Unsound Mind) [1904] 1 Ch 398 Jones v Moylan (2000) 23 WAR 65 Marinko v Masri [1999] NSWCA 364; (2000) Aust Torts Reports 81-581 Marks v GIO Australia Holdings Ltd [1998] HCA 69; (1998) 196 CLR 494 Nguyen v Nguyen (1990) 169 CLR 245 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 Public Trustee v Thompson [2000] ACTSC 4; (2000) 155 FLR 18 Re Alderson (1808) Re B [2000] NSWSC 44 Re Carysfort (1840) Cr & Ph 76; 41 ER 418 Re Darling (1888) 39 Ch D 208 Re DJR and the Mental Health Act 1958 [1983] 1 NSWLR 557 Re Drummond (1836) 1 My & Cr 627; 40 ER 516 Re ES and the Mental Health Act 1958 [1984] 3 NSWLR 341 Re Freeman [1927] 1 Ch 479 Re Frost (1870) LR 5 Ch App 699 Re GDM and the Protected Estates Act 1983 (NSW) (1992) Aust Torts Reports 81-190 Re N [2001] NSWSC 345; (2001) 33 MVR 237 Re Stoer (1884) LR 9 PD 120 Re Strickland (1871) LR 6 Ch App 226 Re Whitaker (1889) 42 Ch D 119 Risk v Northern Territory of Australia & Anor [2002] HCA 23; (2002) 76 ALJR 845 Victims Compensation Fund Corporation v Brown [2003] HCA 54; (2003) 201 ALR 260 W v Q (1992) 1 Tas R 301 Wik Peoples, The v State of Queensland (1996) 63 FCR 450
PARTIES :	The Protective Commissioner (Applicant) "D" (First Respondent) Ors (Second Respondent)
FILE NUMBER(S):	CA 40892/03
COUNSEL:	S W Balafoutis (Applicant) First respondent (No Appearance) D Marks (Second Respondents)
SOLICITORS:	Timothy John Tunbridge (Applicant) First respondent (No Appearance) McBride Harle & Martin (Second Respondents)

LOWER COURTJURISDICTION:	Supreme Court - Equity Division
LOWER COURT FILE NUMBER(S):	EQ 39/03
LOWER COURT JUDICIAL OFFICER :	Windeyer J