SMM v GE

In broad terms, these proceedings concern an application by the family of a person who is a “protected person” within the meaning of the NSW Trustee and Guardian Act 2009 NSW (the first defendant) for the management orders affecting him to be discharged on terms designed to permit his NSW estate to be administered by a nominee of the family (the plaintiff in these proceedings) as an Administrator appointed by the Tasmanian Civil and Administrative Tribunal (TASCAT) pursuant to the Guardianship and Administration Act 1995 Tas.

The protected person’s estate in NSW largely represents an investment of funds derived from awards of personal injury compensation made by this Court, the Supreme Court of NSW. A small part of the estate is presently managed by the protected person’s father (the second defendant), with the assistance of his sister, the plaintiff. The larger part of the estate is held on trust by the NSW Trustee (the third defendant). The two parts taken together, the protected person’s NSW estate has a value of approximately $1.6 million.

The protected person and his family (elderly parents and his sister) all now reside permanently in Tasmania. It is for that reason that the family seeks a discharge of the management orders made by the Court on the basis that his whole estate be administered under Tasmania’s protective regime.

Any decision made affecting the welfare or interests of a protected person must be made in a manner, and for a purpose, calculated to be in the best interests, and for the benefit, of the protected person: Holt v Protective Commissioner (1993) 31 NSWLR 227 at 238D-F and 241G-242A.

In my opinion, it is in the best interests, and for the benefit, of the protected person that the family’s application be granted.

Although I have described the application as having been made by “the family”, the protected person’s sister is the applicant to this Court (the plaintiff) and the person appointed as Administrator by TASCAT.

The father of both the plaintiff and the protected person is named as the second defendant in these proceedings because he presently occupies, and has for many years occupied, the office of manager of the protected person’s estate in New South Wales. He has filed a submitting appearance, coupled with an affidavit in support of the application.

His wife (the mother of the plaintiff and the protected person) also supports the application.

The NSW Trustee is the third defendant, responsible for the supervision of “financial managers” in NSW and, in the first defendant’s case, as a trustee of funds held on his behalf.

These reasons for judgment serve to explain why I have determined to grant the family’s application.

The protected person was born in August 1959 and is now aged 66 years. His sister, the Administrator, was born in April 1961 and is now aged 64 years. They are the only children of their parents.

Their parents were both born overseas. The father was born in December 1937 and is currently aged 87 years. His wife, the mother, was born in April 1932 and is currently aged 93 years. They were married in Australia in December 1958 and lived in New South Wales until, in or about 2017, they moved (with their son) to Tasmania to live in close proximity with their daughter and her family.

The Administrator lived with her parents and (when he was not in institutionalised care) her brother until her marriage in December 1981, shortly after which time she and her husband moved to Tasmania. They have three adult children, all daughters. They have lived in Tasmania throughout their marriage.

The precise circumstances in which the protected person was diagnosed with an intellectual disability have not been the subject of elaboration in these proceedings. The evidence does, however, record that shortly before his birth his mother was involved in a car accident and, shortly after his birth, his parents were told that by doctors that he had suffered a head injury while under the care of nurses.

The family managed the protected person’s care at home until, with the encouragement of his doctors, they placed him in institutional care, first (between about 1970-1972) in Newcastle and then (between 1972-1975) in Westmead. Between 1975-1988 he was placed in a group home in Parramatta.

In October 1988 he suffered personal injuries as a result of being hit by a car, walking back to his group home from his place of employment. Since that time he has lived with his parents unable, by reason of his intellectual disability and physical health, to work. Nevertheless, between 2000 and May 2015 he attended a day group, three days a week, with organised activities.

In about May 2015, when in the presence of a carer, he had a fall in which he sustained injuries which landed him in hospital. There his care was neglected, with the result that his health deteriorated.

The protected person has been diagnosed with autism spectrum disorder and an intellectual disability which affects his cognitive function. His doctors have advised the family that his intellectual disability was made more severe by the car accident in 1988 and the fall in 2015, leaving him with challenges with both his cognitive function and his physical health.

As deposed by his sister, the protected person requires constant supervision and assistance with his personal safety, personal care and navigating meal times. He lacks capacity to manage his own financial affairs. He is unable to monitor or track his spending. He requires someone to manage his finances for him. He does not comprehend the value of money or the difference between small and large amounts. He cannot differentiate between different cash notes. He frequently struggles with handling cash, sometimes dropping money from his wallet without realising that he has done so.

He has demonstrated an inability to understand fully the mechanics of a transaction using a card for the payment of money. Without supervision, he is unable to retain control over his money and is likely to have been exploited by casual carers. He has a very limited ability to advocate for himself in dealing with carers.

The Administrator has been more actively involved in protective management of the brother’s affairs since their father suffered a heart attack in September 2016. In that month, she was able to secure assistance for him through the National Disability Insurance Scheme (NDIS).

In her principal affidavit in support of her application the Administrator explains the context in which her parents and her brother moved to Tasmania in 2017 in the following terms (with emphasis added):

By orders made on 3 February 1994 by the Court (in proceedings numbered 323 of 1993 in the Protective Division of the Court) the protected person’s father was appointed manager of his protected estate.

The nature and value of that estate at that time is not the subject of evidence, but I infer that it was, in substance, an award of personal injury compensation. As at 22 February 2025 it comprised financial assets with a value of $144,818.09.

In proceedings numbered 2018/00135488 in the Common Law Division of the Court the protected person (by his sister as tutor) sued for personal injuries compensation arising from his fall.

On 3 September 2021 a judge of the Court entered judgment for the protected person, in the compensation proceedings, approving a settlement for $1.85 million (subject to adjustments) plus costs as agreed or assessed.

Pursuant to an order made by the judge (under section 77 of the Civil Procedure Act 2005 NSW) at the time he approved the settlement, the settlement sum (after authorised deductions) was paid to the NSW Trustee to hold on trust for the protected person or as the Court might otherwise order. After payment of expenses the amount available for investment was $1,457,574.83. That sum has been retained by the NSW Trustee as a trustee without any application having been made for the sum to be managed as part of the protected person’s protected estate. It is nevertheless part of his estate.

From time to time the NSW Trustee has paid out trust funds for the benefit of the protected person, as it is authorised by statute to do.

On 1 November 2023 TASCAT appointed the Administrator as administrator of the protected person’s estate by means of an order expressed to remain in effect until 31 October 2026 at which time, I infer, it is likely to be reviewed and continued by the Tribunal.

By a summons filed on 17 February 2025 the Administrator sought from this Court orders to the effect that her father be discharged as manager of her brother’s protected estate and that she be appointed as manager of that estate in lieu of her father.

On 3 April 2025 the NSW Trustee filed a “Report to Court” that included recommendations that:

On 30 June 2025, I conducted a directions hearing with a view to inviting the family of the protected person to clarify their views about future management of the protected person’s estate.

After some discussion, counsel for the Administrator informed the Court that the family prefers to have protective management of the affairs of the protected person governed by the administrative procedures operating in Tasmania (where the whole family now lives permanently) rather than those operating in New South Wales (to which the family has no present intention of returning).

In response to that clarification of the family’s preference, I formally noted “that, as presently advised, the Court is minded to make orders to the effect that the management order made in favour of [the father] on 3 February 1994 be discharged on terms that would permit, and direct, the NSW Trustee to transfer the property comprising the [protected person’s] estate in NSW to the Public Trustee in Tasmania (pursuant to section 81 of the NSW Trustee and Guardian Act 2009 NSW or otherwise) having regard to the principles generally applicable in NSW to the management of the affairs of a protected person who resides outside the jurisdiction.

Having regard to the novelty of these proceedings, I also ordered that the NSW Trustee file and serve a short report recommending a procedure for transferring the protected person’s estate to Tasmania.

I ordered, further, that the plaintiff file and serve short written submissions in support of her application for the protected estate of her brother (presently in NSW) to be transferred to Tasmania, whether to the Public Trustee in Tasmania or to her as an administrator of the estate of her brother in Tasmania by virtue of the order made by TASCAT on 1 November 2023.

The working out of these orders took some time because of a need to establish administrative arrangements to give them proper effect.

Section 81 of the NSW Trustee and Guardian Act 2009 is in the following terms:

Independently of section 81, the principles presently applied by this Court on an application to transfer the capital or income of a protected estate out of the jurisdiction of New South Wales are those discussed in PB v BB [2013] NSWSC 1223 at paragraphs [31]-[36] and [61]-[65] by reference to a protected person who lived in France:

The form of orders made for transfer of a protected estate beyond the State of New South Wales, in whole or part, depends on the circumstances of the particular case. The Court ordinarily relies upon the judgement of the NSW Trustee in making inquiries about the institutional system available for the protection of an incapable person in his or her jurisdiction of domicile outside NSW.

An order is commonly made that the NSW Trustee would be justified in transferring estate assets beyond the jurisdiction if satisfied that, beyond the jurisdiction, there is a protective regime no less protective of the incapable person than the NSW regime and that that regime has, in fact, been engaged for the protection of the incapable person.

This approach is consistent with the scheme of the NSW Trustee and Guardian Act, sections 64 and 65 of which empower the Court and the NSW Trustee to make orders in relation to the administration and management of the estates of protected persons, facilitating a constructive working relationship between the Court and the NSW Trustee.

Section 81 of the NSW Trustee and Guardian Act reinforces a predisposition on the part of the Court to recognise that the family of a person incapable of self-management who has a protected estate in NSW should be able to look to their local (Australian) institutions for a protective regime if they live, or move, interstate. The question in such a case is not so much whether there is a protective regime the same as that operating in New South Wales but whether that regime has been effectively engaged so as to ensure continuity of protective care.

In some cases, where an incapable person lives in a common law jurisdiction with a superior court of record possessed of the same welfare jurisdiction as the Supreme Court of NSW (such as Canada), orders have been made for estate funds to be paid into that local court after arrangements have been made for that court to exercise its protective jurisdiction, as it sees fit.

That is not necessary in the current proceedings, but neither can section 81 of the NSW Trustee and Guardian Act operate strictly in accordance with its terms.

That appears from the NSW Trustee’s Report to Court dated 3 July 2025 (with editorial adaptation):

In response to this Report, the plaintiff affirmed an affidavit, and her counsel provided detailed submissions, in support of her application that the Court act upon the advice of the Principal Registrar of TASCAT, which I propose to do.

Nevertheless, I was not satisfied that the information provided allowed the Court to be satisfied that the Tasmanian protective regime had been effectively engaged. It was not enough that the plaintiff simply nominate an account in the name of the first defendant to be managed by her.

For that reason my staff, at my direction, sent an email to the parties which, materially, was in the following terms (with editorial adaptation):

In response to that requisition the plaintiff filed an affidavit (affirmed on 18 September 2025) in which she provided a full explanation (chapter and verse) of arrangements for management of the affairs of the first defendant under the supervision of TASCAT. The first defendant has three accounts in his sole name with the ANZ Bank, all of which are only accessible by the plaintiff in her capacity as Administrator. She is the only person authorised to operate the accounts.

In a letter dated 24 November 2023, shortly after TASCAT made its Administration Order affecting the first defendant, the ANZ Bank acknowledged receipt of the Order and that, mindful of the terms and effect of the Order, it had taken steps to “restrict the access of the first defendant to his accounts, including removing Internet Banking access and any cards he may have been issued, including credit cards”.

The plaintiff annexed to her affidavit a letter dated 6 August 2025 addressed to her by a Deputy Registrar of the Protective Division of TASCAT inviting her (possibly prompted by contact between the NSW Trustee and TASCAT) to submit to the Tribunal an “Annual Report”, which she promptly did.

That Report included responses to questions relating to the affairs of the first defendant (identified as “the represented person”) under topic headings “Health and Lifestyle Issues” (“living and family situation”, promotion of “the personal and social well-being of the represented person”) and “Decision-Making” (“changes to the represented person’s financial matters” and a description of “steps taken to ascertain the represented person’s views, wishes and preferences about changes, and what they were”).

The plaintiff’s “Report” was supported by a statutory declaration dated 26 August 2025 in which she affirmed that the contents of the Report were “true and correct”. In confirmation of a fastidious nature she added to the printed declaration in handwriting: “As far as I am aware”.

On 8 September 2025 the Deputy Registrar who requested the plaintiff’s Annual Report wrote to her in the following terms:

In her affidavit, the plaintiff supplemented the information contained in her Annual Report by annexing a copy of a Financial Summary which she had submitted to TASCAT on 16 November 2023 and was stamped by TASCAT as having been received on 20 November 2023.

It is not necessary in these proceedings to analyse the comparative merits of the NSW and Tasmanian regimes for protective management of the affairs of a person incapable of managing his or her own affairs without assistance.

In some quarters the NSW regime is said to be based on a “substitute decision-making model” whereas the current Tasmanian regime is said to be based on a “supported (or assisted) decision-making model”.

In Re KT and JC, Protected Persons [2025] NSWSC 306 at [222]-[233], I drew attention to that perceived distinction (a false dichotomy) for the purpose of rejecting characterisation of the NSW regime as a “substitute decision-making” regime.

In my opinion, a focus on a perceived binary choice between a “substitute decision-making model” and a “supported (or assisted) decision-making model” in protected estate management is a conceptual trap because it focuses attention on a protected person’s “decision-making capacity” in respect of a particular “decision” rather than the fiduciary obligations of a manager.

A protective manager is obliged to act with wisdom and prudence, for the benefit of the protected person (taking a large and liberal view of what is for his or her benefit), in a way which it is probable that the protected person would have acted if fully capable: Protective Commissioner v D (2004) 60 NSWLR 513 at [149]-[152]; W v H [2014] NSWSC 1696 at [37]-[40], citing Ex parte Whitbread in the Matter of Hinde, a Lunatic (1816) 2 Mer 99; 35 ER 878. That requires a manager to consult both the interests of the protected person and, so far as may be practicable, the protected person personally, recognising that a manager is a fiduciary (bound to act in the interests of the protected person, as explained in Hospital Products Ltd v US Surgical Corporation (1984) 156 CLR 41 at 96-97) and must have regard to statutory guidelines in the exercise of managerial functions.

In the case of NSW, statutory guidelines are contained in section 39 of the NSW Trustee and Guardian Act (and an equivalent provision in section 4 of the Guardianship Act 1987 NSW) in the following terms:

The different terms of the Tasmanian legislation (particularly sections 7-9, 11-12, 51 and 56-57 of the Guardianship and Administration Act 1995 Tas) are reflected in the form of the interrogatories required to be answered by an administrator in an administrator’s Annual Report. Of particular notice is a requirement that an administrator describe “steps taken to ascertain the represented person’s views, wishes and preferences about changes [to financial matters], and what they were”.

The Tasmanian legislation is generally more prescriptive than the NSW legislation and the inherent protective jurisdiction of the Court (in relation to an understanding of the substantive concept “incapacity”; procedures for a determination of “incapacity” to be made, procedures for engagement with an incapacitated person; and elaboration of an administrator’s “powers” and “duties”), but it appears to be directed to similar objectives.

A point of intersection between the NSW and Tasmanian models might be found in section 56(1) of the Guardianship and Administration Act 1995, which describes an administrator’s “powers and duties” in terms of “management” functions as follows (with emphasis added):

Although the terminology deployed in the NSW and Tasmanian legislation is different (the former speaking of a “manager”, the latter speaking of an “administrator”) each officeholder occupies a fiduciary office informed by the protective purpose of the office (described in Secretary, Department of Health and Community Services v JWB and SMB (Marion’s Case) (1992) 175 CLR 218 at 258) and a liability to account governed by the principles enunciated in Countess of Bective v Federal Commissioner of Taxation (1932) 47 CLR 417 at 420-423.

Nothing in the local legislation governing the management (administration) of a person in need of protection (be it in NSW or Tasmania) detracts from these seminal authorities of the High Court of Australia or diminishes the inherent protective jurisdiction of the State’s Supreme Court.

Fortified by that assessment and having satisfied myself that suitable arrangements have been made for engagement of Tasmania’s protective regime in the particular case, and in deference to the views expressed by the family of the protected person (and implicitly the protected person himself), I am satisfied that it is in the best interests, and for the benefit, of the protected person that his family’s application for management (administration) of his NSW estate to be transferred to Tasmania (now their home territory) be granted on terms intended to secure an orderly transfer of power and responsibility from one protective regime to another.

Subject to allowing the parties an opportunity to be heard as to the form of the orders to be made (including the undertaking to be given by the plaintiff to the Court), I propose to make orders to the following effect: