T v M

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
T v M & ANOR
[2022] SASC 16
Judgment of the Honourable Justice Stein
HEALTH LAW - GUARDIANSHIP, MANAGEMENT AND ADMINISTRATION OF PROPERTY OF PERSONS WITH IMPAIRED CAPACITY - ADMINISTRATION AND FINANCIAL MANAGEMENT - REVIEW, REVOCATION, ETC
HEALTH LAW - GUARDIANSHIP, MANAGEMENT AND ADMINISTRATION OF PROPERTY OF PERSONS WITH IMPAIRED CAPACITY - GUARDIANSHIP AND SIMILAR APPOINTMENTS - REVIEW, REVOCATION, ETC
EQUITY - TRUSTS AND TRUSTEES - APPLICATIONS TO COURT FOR ADVICE AND AUTHORITY
The Present Manager, manager of the Protected Person’s estate, sought advice and directions from the Court (“Advice Application”) concerning issues related to the estate. The Protected Person sought to replace the Present Manager with a new manager (“Manager Replacement Application”). The Advice Application was amended (“Amended Advice Application”) to seek advice and directions in relation to whether the Present Manager should defend the Manager Replacement Application.
Upon considering the Amended Advice Application and the Manager Replacement Application together, held:
1.It was reasonable and appropriate for the Present Manager to have filed the Advice Application and the Amended Advice Application in relation to issues of concern arising in the management of the estate of the Protected Person.
2.The relationship between the Present Manager and the Protected Person had irretrievably broken down and therefore there was good cause to replace the Present Manager, and he should not actively defend the Manager Removal Application.

Orders made for the replacement of the Present Manager, ancillary orders and orders for costs.
Administration and Probate Act 1919 (SA) s 69; Aged and Infirm Persons' Property Act 1940 (SA) s 32, s 11; Protected Estates Act 1983 (NSW) (NSW) s 22; Trustee Act 1925 (NSW) (NSW) s 63; Trustee Act 1936 (SA) s 91, referred to.
Holt v Protective Commissioner (1993) 31 NSWLR 227; M v Protective Commissioner [2002] NSWSC 421; Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar the Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand and Another (2008) 237 CLR 66; MB v Protective Commissioner (2000) 50 NSWLR 24, applied.

T v M & ANOR
[2022] SASC 16
Civil
STEIN J:
Overview

In 1993, the Protected Person suffered a tragic accident which resulted in her suffering significant injuries, including a severe traumatic brain injury. In 1997, a medical practitioner diagnosed the Protected Person with permanent and severe brain damage resulting in significant cognitive and physical impairment. In 1999, this Court made an order appointing a manager to take possession and control of and manage the estate of the Protected Person. On 3 March 2006, Judge Withers made an order varying the previous order made in 1999 and appointing the Present Manager as manager of the estate of the Protected Person from 1 April 2006.
The Present Manager was the manager from that date.
In 2021, the Present Manager sought advice and directions from this Court in relation to issues concerning the estate of the Protected Person. The Protected Person sought to replace the Present Manager with a new manager.
In December 2021, following various hearings and the receipt of written submissions, I made orders in relation to the applications made by both the Present Manager and by the Protected Person. I indicated that I would subsequently give reasons and I now publish my reasons.
Further Background
In about 2014, the Protected Person and her partner, M, moved from a property in Streaky Bay (“Streaky Bay Property”) to a small farm on Kangaroo Island (“Kangaroo Island Property”) which the Present Manager purchased for the Protected Person. M leases part of the Kangaroo Island Property from the Protected Person for farming purposes.
Farming equipment and machinery (“equipment”) owned by the Protected Person remained at the Streaky Bay Property and was not relocated to the Kangaroo Island Property.
In about 2020, various requests were made to the Present Manager for expenditure in relation to the Kangaroo Island Property. The Present Manager had concerns about the requests and also developed concerns in relation to the insurance status and location of the equipment.
Applications – overview
From July 2021, a number of applications were filed by the Present Manager and by the Protected Person.
In July 2021, the Present Manager sought advice and directions from the Court in relation to the equipment (“Advice Application”). The application was intended to be confidential.
The Protected Person’s legal representatives became aware of the application.
The Protected Person subsequently filed an application seeking the replacement of the Present Manager with a new manager.
With leave of the Court, the Present Manager amended his application for advice and directions to also seek the advice and directions of the Court as to whether the Present Manager should defend the application for his replacement (“Amended Advice Application”).
A litigation guardian was appointed for the Protected Person.
The Protected Person sought orders dismissing the Amended Advice Application.
A significant volume of material was filed in support of the applications.
In order to understand the recent history of the matter, the relevant issues and the approach I adopted, it is necessary to set out some of the detail of some of the material which has been filed.
Advice Application - equipment
On 30 July 2021, the Present Manager filed the Advice Application pursuant to s 69 of the Administration and Probate Act 1919 (SA) (“AP Act”) and s 91 of the Trustee Act 1936 (SA) (“Trustee Act”).
The Present Manager sought the Court’s directions as to whether to bring an application seeking orders that M disclose the location of the equipment, seeking injunctions restraining M from interfering with possession of the equipment and/or orders for delivery up so the Present Manager could make a decision as to which equipment should be sold or transferred to the Kangaroo Island Property.
The Advice Application was supported by an affidavit of the Present Manager dated 29 July 2021. I set out below some of the factual matters to which the Present Manager deposed in his affidavit.
The Present Manager deposed to having had a cordial relationship with the Protected Person and M but to experiencing difficulties since about July 2019 in dealing with M, including a lack of communication and assistance when requested.
In about September 2020, the Protected Person and M engaged a third party, L to liaise with the Present Manager regarding the financial management of the Protected Person’s affairs. Correspondence from L suggested that the Protected Person was capable of making her own financial decisions. The Present Manager was concerned about this assertion given his observation of the Protected Person’s capacity over a 15 year period.
The Present Manager developed concerns that requests in relation to the Protected Person’s funds were emanating from M for M’s benefit and that M was influencing the requests. The Present Manager received requests which were said to be made by the Protected Person to spend significant sums of money on a second hand Toyota LandCruiser (2018 model), a multipurpose shed and new fences for the Kangaroo Island property. The Present Manager had concerns as to the Protected Person’s financial ability to afford the requests. The Present Manager expressed other concerns, including in relation to the manner of treatment by M of a bushfire grant and quotes obtained by M for replacement of fences destroyed in bushfires.
The Present Manager deposed to having visited the Protected Person and M approximately twice a year. He stated that he attempted to visit the Protected Person in October 2020, 20 January and 29 January 2021 but on each occasion the Protected Person and M refused or declined him to visit.
The Present Manager stated that M agreed to arrange storage and insurance for the equipment. In January 2021, the Present Manager became aware that the equipment was not insured. The Present Manager made numerous requests to M to determine the location and condition of the equipment and M failed or refused to comply with the requests. The Present Manager expressed concerns that M wished to determine which items of equipment would be retained and which items sold and such decisions may not be in the Protected Person’s best interests.
The Present Manager expressed concerns about the Protected Person’s capacity to instruct solicitors.
Events following Advice Application
The Present Manager asked for the Advice Application to be heard ex parte and for the affidavits to be sealed.
Following the upload of the interlocutory application and affidavit of the Present Manager to the portal, the solicitor for the Protected Person became aware of the application.
The solicitor for the Present Manager then communicated with the solicitors for the Protected Person, advised that the application and affidavit contained privileged information and asked for the documents to be destroyed.
The Protected Person’s solicitor confirmed that the documents were discarded after receiving the request.
As a result of the Protected Person’s solicitors becoming aware of the application, the Advice Application was not dealt with on an ex parte basis. The subsequent applications required consideration of interrelated material and consequently, in the most part, were addressed together.
Affidavit in relation to replacing manager
On 26 August 2021, the solicitor for the Protected Person filed an affidavit in support of an application to be made for orders to vary the manager from the Present Manager to a new manager pursuant to s 32 of the Aged and Infirm Persons’ Property Act 1940 (SA) (“AIPP Act”) and for various other orders under s 11(2) of the AIPP Act including giving the Protected Person the ability to manage aspects of her own affairs.
Neuropsychologist report
On 9 July 2021, the Protected Person’s solicitor wrote to Mr Andrew Rothwell, a neuropsychologist (“Mr Rothwell”), asking him to perform a neuropsychological assessment of the Protected Person.
On 25 August 2021, Mr Rothwell delivered a report addressing, among other things, the Protected Person’s capacity to instruct and to manage her affairs.
Mr Rothwell is a registered clinical neuropsychologist who has, since 1998, among other things, consulted in the areas of medico-legal assessment and neuropsychological rehabilitation.
Mr Rothwell’s report sets out a summary of parts of his consultation with the Protected Person, including answers she gave to questions he put to her.
Mr Rothwell concluded that the Protected Person had a likely moderate impairment in general intellectual functioning but a more severe impairment in learning and memory recall. Mr Rothwell concluded that the Protected Person understands right from wrong and has the capacity to recognise injustice and to assert her right to change her manager based on personal preference and a lack of a working relationship. However, he concluded the litigation was likely to be of moderate complexity as a result of which he concluded the Protected Person lacked the capacity reasonably to instruct her lawyers. Mr Rothwell concluded that the Protected Person remained able to communicate her wishes.
Appointment of Litigation Guardian
On 3 September 2021, Stanley J appointed Mr Mark Jordan, an experienced legal practitioner, as litigation guardian for the Protected Person (“Litigation Guardian”) for the purposes of bringing an application for a change of manager under s 32 of the AIPP Act.
Further affidavits in support of manager replacement application
On 24 September 2021, the Protected Person filed an affidavit in which she deposed to an irretrievable breakdown in her working relationship with the Present Manager.
In her affidavit she stated that she felt disempowered and uncomfortable about her working relationship with the Present Manager, that the working relationship had irretrievably broken down and that communication with him and his staff was a constant struggle for her. She deposed to feeling that the Present Manager was “not on her team” and was fighting with her. She deposed to her working relationship with the Present Manager getting worse after the Kangaroo Island bushfires. Her affidavit stated that thinking about the Present Manager made her feel anxious, upset, worried and stressed and that she rarely contacted the Present Manager’s office due to a feeling of anxiety and discomfort. She deposed to not wanting the Present Manager involved in any aspect of her life and that she preferred to work with someone that she felt would listen to her and respect her, her partner and her wishes. The Protected Person deposed to difficulties in communication and stated the breakdown in the relationship with the Present Manager was increasing the costs of administration of the estate unnecessarily. The Protected Person stated it is essential for her to have a good working relationship with her manager and that her manager have a good working relationship with M.
The Protected Person’s affidavit included reference to conveying concerns about the replacement of her outdated 2003 Toyota LandCruiser and the manner and circumstances of the purchase of a replacement vehicle. The affidavit deposed to other concerns including in relation to the Present Manager’s charges.
The Protected Person deposed to wanting Mr Nicholas Cooper (“Mr Cooper”) to become her manager. The Protected Person explained that Mr Cooper was introduced to the Protected Person in connection with work he was doing to assist the bushfire recovery on Kangaroo Island and Mr Cooper was recommended to the Protected Person by L. The Protected Person deposed in her affidavit to a strong view that she and Mr Cooper could form a good working relationship. The Protected Person stated that she considered the appointment of Mr Cooper would aid her wellbeing and that Mr Cooper would work with her expediently to address issues of immediate concern to her.
Potential replacement manager
On 24 September 2021, Mr Cooper, a chartered account, registered trustee in bankruptcy and registered liquidator, swore an affidavit in relation to his willingness to accept his appointment as manager of the Protected Person.
Mr Cooper produced evidence of his academic and professional qualifications including, relevantly, Bachelor of Laws and Legal Practice, Chartered Accountant, registered SMSF auditor, registered liquidator and registered trustee in bankruptcy. Mr Cooper has been a registered liquidator for 19 years, a registered trustee in bankruptcy for 12 years and currently is responsible for many administrations. Mr Cooper is a director of Oracle Insolvency Services Pty Ltd (“Oracle”). Oracle has offices in Adelaide, Penneshaw and Whyalla. Mr Cooper travels to Kangaroo Island about once a month.
Mr Cooper stated that, in February 2021, he was introduced to the Protected Person and M by L. Mr Cooper deposed to discussions with the Protected Person, including her revealing her relationship with the Present Manager had broken down, that she sought a change of manager and it was important that she have a manager with whom she could form a good working relationship and who would be prepared to consult with her and seek her input on decisions to be made about her interests.
Mr Cooper proposed to charge hourly rates of $595 per hour excluding GST for his services. Staff working with him have charge out rates ranging from $185 for an assistant analyst to $535 for a senior manager. Counsel for the Protected Person made oral submissions indicating most work would be done by an insolvency analyst and charged at $290 per hour.
Mr Cooper was willing to accept the proposed appointment and to undertake to comply with the AIPP Act, the Trustee Act and the obligations and duties thereunder if appointed as manager.
Mr Cooper estimated his professional fees and charges to manage the Protected Person’s estate would be approximately $1,500 to $2,500 per month excluding GST. He would not charge travel expenses between Adelaide and Kangaroo Island on the basis his meetings could be coordinated to coincide with monthly travel to Kangaroo Island. He deposed to willingness to discuss any proposed increases in fees and charges with the Protected Person and the Litigation Guardian and only charge increased fees and charges with prior written consent. He stated that Oracle’s practice is to apply the initial hourly rates for the duration of the appointment.
Mr Cooper proposed to manage the Protected Person’s estate by meeting the Protected Person personally as needed, if requested, to meet with the Protected Person monthly, to liaise and work with L or with such other person she nominates (if such input is pertinent to the administration of her estate), to seek the Protected Person’s input in decisions relating to the administration of the estate, to provide her with copies of financial reports relating to the estate and to seek, to the extent pertinent, advice of professionals to assist in the process of managing the estate so the security of the investments remains paramount, and the return on the investments is sufficient to maintain or increase the value of the assets without significantly impinging on the degree of security provided.
Mr Cooper provided evidence of current professional indemnity insurance which had been noted to include services as a manager under the AIPP Act.
Manager Replacement Application and further affidavits
On 24 September 2021, the Protected Person filed an interlocutory application (“Manager Replacement Application”) by her Litigation Guardian seeking orders pursuant to s 32(1) of the AIPP Act for the appointment of Mr Cooper as the sole manager of the estate of the Protected Person in place of the Present Manager. The interlocutory application sought ancillary orders to address the proposed change of manager and orders giving the new manager additional powers.
On 24 September 2021, the Litigation Guardian filed an affidavit in support of the application for a change of manager. The Litigation Guardian deposed to meeting with the Protected Person and discussing her desire to change manager. The Litigation Guardian deposed to having formed the view that the Protected Person was determined to have the Present Manager’s appointment terminated and a new manager appointed. He considered it served no good purpose to continue with the management by the Present Manager in circumstances where, irrespective of reason, the relationship had irretrievably broken down. The Litigation Guardian met with Mr Cooper and formed the view that Mr Cooper’s appointment would beneficially address the Protected Person’s concerns while keeping the professional management of her financial affairs independent. The Litigation Guardian considered Mr Cooper’s fees to be reasonable and consistent with the fees that managers under the Act charge to administer the estates of protected persons.
The Litigation Guardian deposed to attending a meeting with the Protected Person on 24 September 2021. He stated he read her draft affidavit out loud, pausing at the end of each paragraph for the Protected Person to acknowledge her understanding and ask any questions. The Litigation Guardian stated the Protected Person agreed with the content of the draft affidavit before she signed it.
The Litigation Guardian formed the view it is in the Protected Person’s interests to pursue the application.
Amended application for Advice and Directions

On 5 October 2021, the Present Manager filed the Amended Advice Application adding two new proposed paragraphs to the previous application as follows:
1. Whether the [Present Manager] should defend the interlocutory application filed 24 September 2021 by the applicant by her litigation guardian.
2. Whether the [Present Manager] should resign his appointment as the manager of the applicant pursuant to the Aged and Infirm Persons’ Property Act 1940 (SA) in favour of Nicholas David Cooper or an alternative independent manager.
Oral application
On 8 October 2021, at a directions hearing, counsel for the Protected Person made an oral application asking the Court to decline to consider the first two paragraphs of the Amended Advice Application. Counsel for the Present Manager opposed that application. After receiving submissions, I refused that application.
Supporting Affidavit – Amended Advice Application
On 12 November 2021, the Present Manager filed an affidavit on a Court access only basis in support of the Amended Advice Application (“supporting affidavit”). The supporting affidavit contained reference to privileged material. A redacted copy of the supporting affidavit was served on the Protected Person’s solicitors and filed on 15 November 2021.
On 24 November 2021, the Present Manager filed on a Court access only basis an opinion of counsel in support of the Amended Advice Application.
I set out aspects of the supporting affidavit below, omitting any reference to the privileged material.
In the supporting affidavit, the Present Manager expressed concern about the Protected Person’s mental capacity and memory based on his interactions with her over 15 years. The Present Manager was concerned that the application to change managers occurred after the Present Manager differed with M about the management of the Protected Person’s financial affairs and after the Present Manager declined requests by M. The Present Manager expressed concern that the Protected Person’s statements reflected M’s desire to have the Present Manager removed for his own interests. The Present Manager raised concerns as to whether the choice of Mr Cooper had been influenced by M.
The Present Manager deposed to asserted inaccuracy in factual assertions made in affidavits sworn in support of the Manager Replacement Application. He provided additional information in relation to matters referred to in the Protected Person’s affidavit to correct asserted inaccuracy in factual matters or provide additional context.
The Present Manager has, since the financial year 2011/12, charged fees and disbursements totalling $443,348.37.
As to the proposed appointment of Mr Cooper, the Present Manager put forward two alternative choices based on their modest scale of fees and the Present Manager’s experience of their charging practices.
The Present Manager deposed to issues in respect of which he sought legal advice. Privilege is not waived in respect of that advice and I do not refer to it, but I took the material into account.
Litigation Guardian affidavit
On 22 November 2021, the Litigation Guardian swore a further affidavit in which he stated the affidavit of the Protected Person reflected the Protected Person’s own words.
The Litigation Guardian set out the process he adopted to take the Protected Person through her affidavit and ensure she understood and agreed to it. The Litigation Guardian stated that the Protected Person said words to the effect that the affidavit correctly outlined the facts and correctly expressed her feelings.
The Litigation Guardian deposed to receiving five proposals for potential new managers. He read through and considered all of the proposals. He said he considered it important that the Protected Person established a positive relationship with her new manager and he was concerned that she would not form a positive relationship with a person proposed by the Present Manager.
Further steps
I determined to allow the Manager Replacement Application. For reasons including the Present Manager’s experience in, and understanding of, managing the Protected Person’s estate, I considered it reasonable and appropriate for the Present Manager to assist the Court with submissions concerning the replacement manager.
Following correspondence from the solicitor for the Present Manager to the solicitor for the Protected Person setting out the Present Manager’s particular concerns in relation to the appointment of the proposed new manager, Mr Cooper filed a second affidavit which provided additional information and deposed to the circumstances in which he was approached to agree to take on the role, including as to his independence from M.
The Protected Person maintained the desire for Mr Cooper to be appointed.
Consideration
The Protected Person’s submissions – Application for Advice and Directions
Counsel submitted that while seeking advice and directions concerning adversarial litigation is not an automatic bar to the exercise of the discretion to decline to give advice and directions, it is a matter which needs to be carefully considered. Counsel for the Protected Person submitted that it is within the Court’s power to decline to give advice and directions to a trustee and in this case that would be an appropriate exercise of the Court’s adjudicatory function.
The Protected Person’s submissions – Replacement Manager Application
Counsel for the Protected Person submitted that the report of Mr Rothwell established that the Protected Person has sufficient capacity to state her needs and wants. Counsel submitted that it is important for both the Protected Person and M to have a good relationship with the replacement manager, including for reasons of the potential costs to the estate and the importance of the care that M continues to provide to the Protected Person. Counsel pointed to the importance of considering the Protected Person’s requests. Counsel submitted that I should have no hesitation in relying on the matters to which the Protected Person deposed, including why the Protected Person feels comfortable with Mr Cooper and the circumstances in which she met him.
Counsel submitted that a completely independent connection had been established as to how Mr Cooper came to meet the Protected Person. Nonetheless, proposals were sought from five potential managers with the requisite experience to be able to accept the role as manager. The solicitors for the Protected Person then reviewed the fees and charges of the potential managers and performed a detailed comparison of the likely fees and charges and submitted that material to the Litigation Guardian. The Litigation Guardian reviewed the materials and formed the view that Mr Cooper’s proposed fees are reasonable and comparable with those of other managers and that Mr Cooper was the appropriate choice of replacement manager.
The Protected Person’s counsel submitted that there was good reason to replace the Present Manager and there was an appropriate basis to replace him with Mr Cooper.
Present Manager’s submissions – Application for Advice and Directions
Counsel for the Present Manager stated that the Present Manager had significant concerns which had put the Present Manager in a position of difficulty and doubt in respect of which the Present Manager, as a trustee, was entitled to ask the Court how he should proceed. Counsel submitted it would be unusual for a Court to decline to give advice to a trustee even where the advice sought related to adversarial litigation.
Counsel for the Present Manager relied on Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar The Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand and Another[1] (“Macedonian Church case”) in support of his submissions, including that the scope of the Court’s discretion to refuse to give advice and directions is narrow. Counsel for the Present Manager submitted that the Present Manager could not be denied advice of the Court in those circumstances.
[1] (2008) 237 CLR 66.
Authorities on advice and direction
The principal authority in relation to applications for advice and directions is the Macedonian Church case. In that case the majority of Gummow A-CJ, Kirby, Hayne and Heydon JJ considered s 63 of the Trustee Act 1925 (NSW), which provides that a trustee may apply to the Court for an opinion, advice or direction on any question respecting the management or administration of the trust property or respecting the interpretation of the trust instrument.
The High Court said there are no express words in s 63 and no implications from the express words that would automatically preclude the Court from giving the advice sought.[2] There is nothing in the section which limits its application to proceedings which are non-adversarial in nature or proceedings other than those in which a trustee is sued for breach of trust or proceedings other than those in which a remedy sought is the removal of a trustee.[3] The Court considered that there is only one jurisdictional bar to s 63 relief, that is, that the applicant must point to the existence of a question respecting the management or administration of the trust property or a question respecting the interpretation of the trust instrument.[4]
[2] (2008) 237 CLR 66 at [56].
[3] (2008) 237 CLR 66 at [57].
[4] (2008) 237 CLR 66 at [58].
The High Court rejected submissions to the effect that in an adversarial contest it is not appropriate for the Court to give advice.
The Court considered that section 63 operates as an exception to the Court’s ordinary function of deciding disputes between litigants and affords a facility for giving private advice.[5] The advice is private because the function of the advice is to give personal protection to the trustee. The trustee’s application for advice about whether to sue or defend proceedings is not only directed to the personal protection of the trustee but is to protect the interests of the trust.
[5] (2008) 237 CLR 66 at [64].
Authorities in relation to replacement of manager
The statutory criteria for replacement of a manager is proof of “good cause”.
The Protected Person’s counsel relied on authorities in interstate jurisdiction in which a Court has exercised power to remove and replace the equivalent of a manager of a protected person, being MB v Protective Commissioner,[6] M v Protective Commissioner[7] and Holt v Protective Commissioner.[8]
[6] (2000) 50 NSWLR 24.
[7] [2002] NSWSC 421.
[8] (1993) 31 NSWLR 227.
In MB v Protective Commissioner,[9] Hodgson CJ (in the Equity Division) considered an application by the mother of a protected person for orders removing a Protective Commissioner as manager of the protected estate and appointing a substitute manager. In that case, there were a number of issues including complaints about the management of the estate and the fitness of the manager. However, one issue was the breakdown in relationship between the Protective Commissioner and the mother of the protected person. The mother resided with the protected person and was her primary carer.
[9] (2000) 50 NSWLR 24.
Chief Justice Hodgson considered that the relationship between the protected person’s mother (and primary carer) and the protected person’s manager was important. The relationship had broken down which would have adverse consequences for the protected person and the estate. One consequence was that, because the mother was not dealing with the Protective Office, substantial costs were being incurred through the necessity to engage solicitors in dealings with the Protective Commissioner.[10] Hodgson CJ said that the mother’s peace of mind was also very important to the protected person’s welfare. He concluded that there was no significant advantage to the protected person in retaining the particular Protective Commissioner as manager.[11] Hodgson CJ considered the fees proposed by the proposed replacement trustee company and concluded that the financial disadvantages of changing manager would be small. Although it was possible the relationship between the mother and the new trustee company could breakdown in the future, as had previously occurred, this was only a possibility. Having regard to the history of conflict, Hodgson CJ did not think the relationship could be restored.
[10] (2000) 50 NSWLR 24 at [126].
[11] Ibid at [127].
In M v Protective Commissioner, the Court held that the primary concern was to act in the best interests of the protected person and that included feelings of comfort as well as financial interests.[12]
[12] [2002] NSWSC 421 at [40].
In Holt v Protective Commissioner, the Court considered an appeal challenging orders in relation to the appointment of a manager of the estate of a protected person in place of the Protective Commissioner. [13]
[13] (1993) 31 NSWLR 227.
President Kirby (as he was then), with whom Sheller JA and Windeyer A‑JA agreed, considered the test for the removal of a manager under s 22 of the Protected Estates Act 1983 (NSW). Kirby P indicated the discretion that is reposed in the Court is in broad terms which includes consideration not just of the proper management of the estate, but ensuring a person has a quality of life as beneficial to the person as the resources available to the manager permit.[14]
[14] Ibid at 238.
President Kirby said that if the Protective Commissioner has been validly and properly appointed, but it is later shown that on balance it is in the best interests of the protected person that some other suitable person should be appointed, the Court is bound to appoint that other person and should not hold back because no clear and convincing demonstration has been shown for the replacement.[15] He stated that the discretion to appoint or remove a manager should not be confined by rigid rules or guidelines expressed in general terms.[16]
[15] Ibid at 238.
[16] Ibid at 241.
President Kirby said the application invites the exercise of discretion which must be exercised keeping in mind the purposes of the legislation. The abiding rule in the exercise of powers is the achievement of the best interests of the protected person.[17]
[17] Ibid at 241.
President Kirby noted that the circumstances of protected persons, the needs and management of their estates and the anxieties of their families vary enormously, and the Court must respond as the legislation envisages with a proper mixture of compassion, vigilance and efficiency.[18]
[18] Ibid at 243.
Counsel for the Protected Person also submitted that the decision of Withers J in this matter in on 3 March 2006 is authority for the proposition that the breakdown of a relationship with the manager constitutes good cause for removal pursuant to s 32 of the AIPP Act.
In March 2006, Withers J considered an application by the Protected Person seeking an order substituting a new manager (the Present Manager) in place of the previous manager. In considering the application, Withers J considered an affidavit filed by the Protected Person in support of the application. In the Protected Person’s affidavit she deposed to the importance of having a good working relationship with her manager and that she was of the opinion she could create an excellent relationship with the proposed manager.
The first manager filed an affidavit which addressed a number of issues including that he believed that the breakdown in the relationship between him and the Protected Person had resulted in claims made by M in respect of the estate which had not been accepted by him as manager. I note similarities with the concerns of the Present Manager.
Judge Withers concluded that it was abundantly clear that there was a serious and significant breakdown in the relationship between the then manager and the Protected Person. He concluded that no good purpose was served by continuing the arrangement. He was satisfied that, in all the circumstances, the Protected Person had provided adequate proof of good cause within the meaning of s 32 of the AIPP Act for making an order appointing another person as manager of the estate in place of the existing manager.
Determination of Applications
The first two paragraphs of the Amended Advice Application overlap significantly with the issues to be determined in relation to the Manager Replacement Application such that it was difficult strictly to consider and determine them separately. I therefore considered them together.
Having considered the filed materials, including the privileged material, and the oral and written submissions, I reached the following views in relation to the Amended Advice Application and the Manager Replacement Application.
It was reasonable and appropriate for the Present Manager to have filed the Advice Application and the Amended Advice Application in relation to issues of concern to him arising in the management of the estate of the Protected Person. The filing of the Applications arose from the Present Manager forming concerns about requests to incur expenses in the context of the diminishing estate of the Protected Person, her ability to afford expenditure on the requested items, his experience in dealing with the Protected Person, his views as to her capacity (based on that experience) and his concern about the source of the requests. The filed material sets out a factual foundation which constituted the basis upon which the Present Manager formed certain views. It was reasonable and appropriate for the Present Manager to inform the Court of his concerns in the best interests of the Protected Person.
There were some differences between assertions made by the Protected Person and the Present Manager. Examples included the asserted failure of the Present Manager to contact the Protected Person after the bushfires, issues as to insurance and bushfire grants and requests for work around the property. It was not necessary for me to resolve those differences for the reasons that follow. However, those differences were not irrelevant, as they formed part of the basis upon which the Present Manager formed views and sought the Court’s advice and directions.
The Litigation Guardian deposed to his discussions with the Protected Person and her firm views. His view was that she was determined to have the appointment of the Present Manager terminated such that it served no good purpose to continue with the management of her financial affairs by the Present Manager in circumstances where, for whatever reason, the relationship had irretrievably broken down. The Litigation Guardian considered it to be in the best interests of the Protected Person to pursue the Manager Replacement Application.
I formed the view that, irrespective of the reason, the Protected Person believed the relationship had irretrievably broken down. The inevitable consequence of that was that future dealings between the Protected Person and the Present Manager would be unavoidably infected by that perception such that the working relationship had become, and would continue to be, untenable.
As a consequence, I considered it likely that if the Present Manager was not replaced, administration of the estate would continue to be more complex and costly, including through the Protected Person involving intermediaries in communications with the Present Manager and the potential ongoing involvement of lawyers.
Based on the filed material, I did not think the relationship could be restored.
Although there would likely be some costs incurred in a new manager taking over the estate, I would not expect those costs to be significant such that the financial disadvantage would be detrimental.
I therefore considered there was good cause within the meaning of the AIPP Act to replace the Present Manager.
I also concluded that while the Present Manager was entitled to seek advice and directions, the Present Manager should not actively defend the Manager Replacement Application.
As to paragraph four of the Amended Advice Application relating to the equipment, I was concerned that the issues associated with the equipment raised by the Present Manager should be addressed in a cost effective and timely way. I determined that the equipment issues should be dealt with by the replacement manager with liberty to apply in the event the replacement manager required advice and directions.

I concluded that the affidavits of the Litigation Guardian, Mr Cooper, the Protected Person and the solicitor for the Protected Person, together with the exercise conducted in relation to fees and the views of the Litigation Guardian, established sufficient basis upon which to make the orders sought and appoint Mr Cooper as replacement manager.
Accordingly, I made the orders providing for the replacement of the Present Manager with Mr Cooper, ancillary orders and orders for costs.

[2022] SASC 16

2 March 2022