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[2011] NSWSC 47
Supreme Court of NSW
2011-02-07
Original judgment source is linked above.
The Nature of the Application 1HIS HONOUR : This is an application, by amended Summons, filed in Court on 7 February 2011, for a declaration that the Plaintiff (whom I shall call "VS") is a person capable of managing her own affairs. Consequential relief is also sought. 2Notice of the application has been given to the NSW Trustee and Guardian (formerly the Public Trustee in, and for, the State of New South Wales). It was appointed, pursuant to a Deed dated 12 November 2001, as a trustee for VS, to hold the amount of $330,000 ("the fund") "for her lifetime, or until the fund is exhausted". 3Pursuant to the Deed (described in correspondence as a "Voluntary Trust Deed"), the income earned by the fund, immediately vested in VS, and the trustee was authorised and empowered, in its absolute discretion, to use the whole, or any part, of the fund, for the maintenance, education, advancement in life, or benefit of VS. 4An order is sought that the Deed be revoked.
Background 5On 12 April 1998, VS was a front seat passenger in a car that was hit from the left side. She was knocked unconscious. She suffered fractures of her pelvis, ribs and her right foot. The accident also caused ligament strains of the cervical, thoracic and lumbar spine. A cerebral CT scan, performed whilst she was in hospital, confirmed no intracerebral pathology. 6VS instructed solicitors to make a claim for damages arising out of the physical injuries sustained in the accident. Her father was appointed her tutor in those proceedings. Through the tutor, VS was represented by solicitors and by counsel, which proceedings were settled in about September 2000, for $500,000, plus costs, calculated on the ordinary basis, of $50,000. 7Orders made by the District Court, in those proceedings, included a notation that the settlement of the proceedings was approved "subject to the provision of evidence concerning the establishment of a method of fund management which will involve a professional manager". The District Court made the order, despite the tutor of VS submitting that the settlement monies should be paid to him directly and placed in a special term deposit pending purchase of a property in the name of VS in accordance with her wishes. 8The fund constituted the balance of the net sum, clear of all costs and outgoings, and was paid to the Public Trustee in about November 2001. 9Subsequently, the Public Trustee purchased a property at Mount Pritchard, in which VS now lives, with her husband and child. 10Following the motor vehicle accident, VS suffered depression. It was reported that her memory and intellectual capacity remained compromised. She was diagnosed as having suffered a closed head injury. She was further diagnosed as suffering from significant short-term memory impairment, impairment of abstract reasoning and concept formation, and impairment in sequencing and spatial relationships. 11More recently, in 2008, a consultant forensic psychologist, Zoran Protulipac, saw VS. He found, and reported, that there remained a presence of depression and anxiety. The testing also revealed that her high executive cognitive functioning was intact. The scores obtained on the Wechsler Abbreviated Scale of Intelligence (WASI - III) suggested a person of average intelligence, who was capable of general functioning in society. Mr Protulipac concluded, because it appeared that her higher order cognitive functioning was intact, that VS was competent for planning, executing and evaluating the outcomes of her actions. He stated that employing simple strategies, such as using a diary and other forms of reminders, would compensate for her memory problems and that she was able to run a household, pay accounts and other expenses and manage her own financial and other affairs. 12In a subsequent report (dated 10 November 2009), Mr Protulipac expressed the opinion that VS was "fully competent to instruct her solicitors and counsel"; and that she also had sufficient capacity to manage her own funds; that she was able to attend to planning and calculation of such funds. He concluded that her psychiatric conditions did not present as an obstacle for adequate reasoning; nor did they, in any way, prevent VS from making sound decisions in relation to her own affairs. 13Mr Protulipac's opinion as to VS' capacity to instruct her legal advisers and competency to manage her own funds was repeated in an affidavit sworn by him on 30 November 2010 and filed at the hearing. He confirmed that he had "subjected [VS] to a range of psychometric assessment instruments. The variables measured involved all aspects of reasoning, planning concentration, memory, organisation, and general knowledge" and that "[T]he results obtained suggested that she has average mental abilities, which are found in 90% of the population". He also stated that there was solid evidence of VS being functional in every regard, including her involvement in parenthood, household organisation, marriage, social life and attending to the needs of others. 14There is also a report, dated 31 August 2010, of Dr Velibor Todorovic, a medical practitioner who commenced treating VS on 21 February 2008. He states that, in his opinion, VS "is competent to provide instructions to her legal advisers" and that she "is competent to manage her own funds". However, the factual basis for his opinion is not expressed in the report. 15Dr Todorovic swore an affidavit on 24 November 2010, a copy of which was also read at the hearing. In that affidavit, he refers to the results of a "mini-mental state examination", but does not state what those results were. 16There is also evidence from VS's present solicitor, Mr Gabriel, that "VS has always presented as a rational and capable client". 17I have read an affidavit sworn by VS on 7 September 2010. In that affidavit, she reveals that: (a) In 2002, a town house was purchased in her sole name. She has lived in that town house, which remains unencumbered, since then. (b) She states that she believes that her psychological symptoms, including anxiety, depression and stress, have improved, as have her memory and concentration. (c) She married in October 2004 and there is one child of the marriage, who is now 5 years old. (d) She was involved in another car accident in February 2008, which resulted in her having some difficulty with the heavier aspect of domestic chores. 18In relation to the future, she states: (a) It is her wish that the current trust arrangement with the NSW Trustee be terminated. She believes that she would not have difficulty managing her financial affairs. If the orders sought by her are granted, it would be her intention to sell her townhouse and she believes the current market price would be of the order of $300,000. She and her husband would then raise a manageable mortgage and purchase a free standing home. The small amount of about $5,000 that remains invested with the NSW Trustee would assist in relation to the purchase of the new property. (b) Besides attending to the household and caring for her child, she drives, shops and undertakes budgeting on a day to day basis. (c) She says her marriage is strong and stable and, with the exception of the physical problems arising out of her most recent motor vehicle accident, her general health is good. (d) She has a strong desire to purchase a free standing home, in which she and her husband can raise their child. (e) She no longer suffers from the significant problems with memory, concentration and severe psychological symptoms that led to the need to appoint a trustee to manage her previous award of damages. She is confident that she has the capacity to ensure that her assets are not squandered. 19In an affidavit, sworn 19 November 2010, which was also read at the hearing, VS states that she regularly withdraws money from her bank account, to pay household bills; she discusses with her husband how much money she can withdraw; attends to payment of the household bills at the local post office, or, in relation to her strata levies, at the Bank; and occasionally, she attends at Medicare offices and completes claim forms in respect of the medical treatment provided to one, or other, of her family. 20Since her accident, she has also been successful in applying for a driver's licence (which application included completing both a driving test and a road rules test). She was able, with the assistance of a friend, to apply for a passport. She has been able to travel overseas. 21It can be seen that VS considers she is capable of managing her own affairs such that she should have control of the fund. 22I have also read an affidavit, sworn on 7 September 2010, of VS' husband. He is 40 years of age and is employed, on a full-time basis, as a gyprocker. He states: (a) He and his family reside at Elizabeth Drive, Mt Pritchard. This is a unit that is owned by his wife. He and his wife wish to move out of the current residence and into more suitable premises in which to raise their child. They wish to purchase a free standing home. He estimates if they were to sell their current unit in the current market it would be sold in the order of $300,000. He and his wife then intend to obtain a mortgage, which they would be able to manage based on his income, in order to purchase a free standing home. Any mortgage they obtained would be in his, and his wife's, names jointly. (b) His observations of his wife since he has known her, and in particular since their marriage, is that she does not have problems with memory, concentration or any significant psychological problems. She has, since her recent motor vehicle accident of 13 February 2008, suffered from physical injuries with respect to her neck, back and right shoulder, and some stress and anxiety. From his observation, however, these do not affect her memory, concentration or ability to deal with people. Further, these injuries do not prevent her from attending to their household generally or caring for their child. She is able to drive and do the shopping and undertakes the budgeting with respect of finances on a day-to-day basis. As a result of her physical injuries sustained in the recent accident, she does have some restriction with respect to her ability to perform domestic duties and requires his assistance. (c) From his observation, his wife is capable of providing instructions to her legal advisers and to deal with her finances. 23In an affidavit sworn by VS's husband on 22 November 2010, he states that he has read both of the affidavits of VS and believes what she has stated in each to be true and correct. 24I also observed VS at the Bar table, when I asked her some questions. She was able to tell me, generally, about the nature of the proceedings. She was able to tell me what the NSW Trustee and Guardian had done with the fund, and what she proposes to do if the Court make an order that the real estate be transferred back to her. Whilst she may have been a little confused when I first asked her whether she would seek legal assistance to assist her in purchasing another property and to explain any mortgage, that she and her husband were required to obtain, that may have been because of the way in which the questions were posed. When I re-formulated these questions, she explained to me that she intended to do so. 25Mr I.M. Newbrun, counsel for VS, subsequently confirmed her instructions that she would be obtaining legal assistance to achieve what was going to occur. 26The NSW Trustee does not oppose the making of the orders sought. In a letter dated 12 November 2010, it advises "there is no need for a colleague from this office to appear at the proceedings as we have no objection to your summons".
Consideration 27The matter proceeded in a busy Protective List. It was necessary for a copy of a number of the affidavits to be relied upon to be read rather than the original, as the original could not be located. Written submissions were provided to the Court by counsel for VS following the hearing. 28As it was not possible to deliver reasons for Judgment immediately, and because I did not wish to keep VS in further suspense, I indicated that I proposed to make certain orders and a declaration that, together, would achieve what she wanted. I also indicated I would deliver reasons as soon as possible. These are my reasons. 29On 1 July 2009, the NSW Trustee and Guardian Act 2009 commenced. The Public Trustee Act 1913, was repealed and the office of the NSW Trustee and Guardian was created to carry out the functions of the Public Trustee. The Protected Estates Act 1983 was also repealed, but was substantially re-enacted in the NSW Trustee and Guardian Act . 30The basis of VS claim for relief is said to be s 86 of the Act, which provides: "86 Revocation of orders by Supreme Court (1) The Supreme Court, on application by a protected person and if the Court is satisfied that the protected person is capable of managing his or her affairs, may: (a) revoke any declaration made that the person is incapable of managing his or her affairs, and (b) revoke the order that the estate of the person be subject to management under this Act, and (c) make any orders that appear to it to be necessary to give effect to the revocation of the order, including the release of the estate of the person from the control of the Court or the manager and the discharge of any manager. (2) For the purposes of this section: (a) evidence of a person's capability to manage his or her own affairs may be given to the Supreme Court in any form and in accordance with any procedures that the Court thinks fit, and (b) the Court may personally examine a person whose capability to manage his or her affairs is in question or dispense with any such examination, and (c) the Court may otherwise inform itself as to the person's capability to manage his or her own affairs as it thinks fit." 31So far as I am aware, VS is not, and never has been, a "protected person". In s 4 of the Protected Estates Act , "protected person" was defined as meaning "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". 32Even if VS were such a person, so far as I am aware, no declaration has ever been made that she is a person who is incapable of managing her affairs. Similarly, no order that her estate shall be subject to management under the Protected Estates Act was ever made. An order for management, if made, would have been under s 13(1) Protected Estates Act . That section provided: "Where the Court is satisfied that a person is incapable of managing his or her affairs, it may make a declaration to that effect and order that the estate of the person be subject to management under this Act." 33Alternatively, a consideration of the provisions of the Mental Health Act , 1958, reveals that "incapable person" was defined as a person who was proved to the satisfaction of the Court under s 39 of that Act to be, through mental infirmity arising from disease or age, incapable of managing his, or her, affairs. No such finding was ever made in respect of VS in the District Court proceedings. Nor was any application to that end brought subsequently. 34At a time when the Mental Health Act 1958 governed the appointment of managers of the property of an incapable person, the words, "incapable of managing his or her own affairs" were considered by Powell J in PY v RJS [1982] 2 NSWLR 700. His Honour said at [7]: "It is my view that a person is not shown to be incapable of managing his or her own affairs unless, at the least, it appears: (a) that he or she appears incapable of dealing, in a reasonably competent fashion, with the ordinary routine affairs of man; and (b) that, by reason of that lack of competence there is shown to be a real risk that either: (i) that he or she may be disadvantaged in the conduct of such affairs; or (ii) that such moneys or property which he or she may possess may be dissipated or lost...; it is not sufficient, in my view, merely to demonstrate that the person lacks the high level of ability needed to deal with complicated transactions or that he or she does not deal with even simple or routine transactions in the most efficient manner." 35Further consideration to that test was given by Campbell J (as his Honour then was) in Re GHI (a Protected Person) [2005] NSWSC 581; (2005) 221 ALR 589 at [5]-[21]. 36VS, therefore, is not "a protected person". 37Section 34 of the Public Trustee Act 1913, provided: "(1) Where a minor, or a person (in this section hereinafter referred to as "incapable person") who, in the opinion of the Public Trustee, is unable to give a good discharge, is entitled to moneys in the hands of the Public Trustee, then, with respect to such minor or incapable person, the Public Trustee may, notwithstanding any law to the contrary, from time to time pay such moneys to such person as the Public Trustee thinks fit, to be applied by such person for the maintenance, education, advancement or benefit of such minor or incapable person or the Public Trustee may so apply such moneys. The Public Trustee shall not be bound to see to the application of the moneys so paid to such person. The Public Trustee may at any time and from time to time apply to the Court for directions as to the administration of such moneys or to vary directions which may already have been given in regard thereto, or to determine any matter relating thereto, and any direction or determination of the Court shall, if given effect to by the Public Trustee, exonerate the Public Trustee from any claim or demand by any person whomsoever. (2) A reference in subsection (1) to a minor being entitled to moneys in the hands of the Public Trustee includes a reference to a minor who is entitled to those moneys contingently on attaining an age specified in the instrument creating the entitlement." 38It is clear that VS is not, and at all relevant times, was not, a minor (a person under the age of eighteen years). Nor was, or is, she a person of unsound mind within the definition of that expression in the Damages (Infants and Persons of Unsound Mind) Act 1929, as she has not been found, or declared, to be insane, or of unsound mind, and incapable of managing her affairs under the Lunacy Act 1898. 39The appointment of a tutor in the District Court proceedings did not constitute VS such a person: Laurenson v Plain [1974] 2 NSWLR 312. 40In the circumstances, s 86 of the Act does not apply. 41I have next considered the basis upon which the fund was originally paid to the Public Trustee. 42Part 45 rule 2(1) of the District Court Rules 1973, in existence at the time the proceedings involving VS were settled, provided, so far as relevant, that "a disable person may not, except by his next friend, bring or make a claim or carry on any proceedings for relief in the Court". A "disable person" was defined by Pt 1 r 4(1) of those Rules as meaning "a minor or an incompetent person" and the latter expression was defined as meaning, so far as relevant, "a person who is not a minor and who is: (i) incapable of managing his affairs". 43Part 45 rule 11 of the District Court Rules provided that where proceedings were commenced, and afterwards an agreement was made by the tutor of a disable person for the compromise and settlement of any matter in dispute in those proceedings, the Court may approve or disapprove the agreement. Part 45 rule 14 provided that as a term of its approval, the Court may require that any money payable for the benefit of the disable person be dealt with by way of settlement or otherwise as the Court thinks fit for the benefit of the disable person. 44These rules were part of the long-established supervisory jurisdiction of the courts concerning the approval of settlements and the investment of settlement funds. The Rules were intended to cover a settlement by a tutor of proceedings in circumstances where the plaintiff was a person who came within the definition of a disable person in the Rules, but who may not have come within the definition of an infant, or person of unsound mind, as defined in the Damages (Infants and Persons of Unsound Mind) Act , 1929. They enabled the Court to impose terms, when granting its approval to a settlement involving a tutor. Specifically the Court was enabled, as a term of its approval, to require that moneys payable to the disable plaintiff be dealt with by way of settlement, or otherwise, for the benefit of the disable plaintiff as the Court thought fit, and could make such orders as it thought fit for the carrying out of such requirements. 45Thus, because there was a tutor for her, even though VS was not of unsound mind, the District Court exercised a supervisory jurisdiction as to the fund that might flow to her. 46I am supported in this view by what was said in Laurenson v Plain ( which deals with the then Supreme Court Rules that were similar). 47Section 13 of the Public Trustee Act 1913, referred to earlier, enabled the Public Trustee to be appointed as trustee of the settlement amount. It accepted its appointment as such. 48An order in the terms set out above having been made by the District Court, the question is what is to occur now that VS, as sole beneficiary of the fund, or the real estate purchased, seeks the fund to be paid and the real estate transferred, to her. 49Before referring to the way in which the matter should proceed, three other important and relevant aspects should be noted. The first is that the award of damages made, was intended to provide compensation for VS, to be enjoyed, and applied, during her lifetime, rather than to establish a capital sum which would be kept, intact, for the remainder of her life and then be passed on to others. Thus, it must be recognised that the fund held by the NSW Trustee and Guardian was intended for the use and enjoyment of VS, both as to capital and income, during her lifetime. It was not objectionable for the capital to be progressively reduced over time for the benefit of VS. This was provided for in the Deed. 50The second aspect is that the only justification for the legal estate in the fund (or the real estate which part of the fund has been used to purchase), to continue to be held and administered by the NSW Trustee and Guardian is the protection of VS rendered necessary by incapacity or disability. If, and when, she was able to establish that she was no longer incapable or disabled, then there would no longer be any basis to withhold the absolute enjoyment of the trust property. If she were found to be capable of managing her affairs, it is a fundamental principle of the law of damages that the Court has no concern with the manner in which, thereafter, she uses the fund that was awarded. She is free to do what she likes with it: Todorovic v Waller (1981) 150 CLR 402 at 412 (per Gibbs CJ and Wilson J). 51As was said by Young J (as his Honour then was), in Re C (TH) and the Protected Estates Act [1999] NSWSC 456: "There is no room in the legislation for benign paternalism. A person is allowed to make whatever decision she likes about her property, good or bad, with happy or disastrous effect, so long as she is capable." 52The third, and perhaps, least important matter, is that the Deed was referred to as a "Voluntary Deed". This suggests that VS voluntarily accepted the course suggested, in circumstances where no declaration that she was incapable of managing her affairs had been made. 53I turn, then, to some to relevant authorities. In Lim v Nominal Defendant (Supreme Court of New South Wales, 27 June 1997, unreported) Hodgson J (as his Honour then was), concluded (in relation to the Supreme Court Rules): "DECISION In the present case, a tutor was appointed for the plaintiff by the Court pursuant to Pt 63 r 7. Such appointment was predicated on the basis that the plaintiff was "a disable person". "Disable person" is defined in Pt1 r8 to mean a minor or an incompetent person. "Incompetent person" is defined relevantly to mean a person who is "incapable of managing his or her affairs". When there is a judgment in favour of a person with a tutor, whether this be as a result of a settlement or as a result of a contested hearing, the practice is not to have the judgment money paid out to the plaintiff. As shown by the judgment of Master Cantor in Laurenson v Plain (1974) 2 NSWLR 312 at 314, this is not because of the application of the Damages (Infants and Persons of Unsound Mind) Act , and it is not the result of anything in the Protected Estates Act . Rather, it is because the Court would not normally consider it to be in the interests of a disable person, and in particular a person who is incapable of managing his or her affairs, that a substantial sum of money be paid to that person. It is not appropriate either for the judgment sum to be paid to the tutor, who has only been appointed for the purpose of conducting the proceedings. Very often, a manager is appointed under the Protected Estates Act , and the judgment money is then paid to that manager. In the absence of such appointment, the judgment money may be paid to the Public Trustee or to the Protective Commissioner, either pursuant to the inherent jurisdiction of the Court or, in cases where the Court has approved a settlement, pursuant to Pt 63 r 14. In order to justify payment of the judgment sum to the plaintiff, where the plaintiff has been represented by a tutor and particularly where this is as a result of a court order under Pt 63 r 7, the Court would have to be satisfied that such a course was appropriate. This could occur as a result of a successful application to discharge the tutor on the basis that the plaintiff is no longer a disable person; or, it seems to me, as a result of satisfying the Court in the absence of such an application that the plaintiff is capable of managing his affairs or that there are particular circumstances which justify payment out to the plaintiff not withstanding that the plaintiff is not capable of managing his affairs." 54Master Macready (as his Honour then was) followed this decision in Walker v The Public Trustee [2001] NSWSC 1133. Also see, Harold Joseph Martin Cadwallender By His Next Friend Stavroulla Cadwallender v The Public Trustee [2003] WASC 72. 55In OM v MN [2008] NSWSC 36, Windeyer J dealt with an application to revoke a management order. He said: "8 There is no purpose in setting out the law in any detail. The requirements have been set out in PY v RJS (1982) 2 NSWLR 700, and in Re GHI (2005) 221 ALR 589, and the principle has been followed in all the cases in this court dealing with the question of revocation. If a revocation is to be made then the applicant for revocation, who bears the onus, must show that he is capable of dealing in a reasonably competent way with the ordinary affairs of man and that he is not likely to be disadvantaged in the conduct of his affairs by being susceptible to persons who might put pressure on him. The ordinary affairs of man does not just mean going down to the local shop and buying ordinary household goods, it means being able to manage ordinary household funds and ordinary investments and it does involve the ability not only to understand that advice ought to be obtained for the investment of a large amount of money but to be able to properly consider that advice." 56Even though this is not an application to revoke an order that VS is incapable of managing her affairs, it seems to me that the Court should now determine whether the trust that was created for the benefit of VS ought to be wound up and the fund paid out to VS upon the basis that whatever the position was at the time the orders in the District Court were made, VS is now capable of managing her affairs. 57There is documentary evidence before me, to which I have referred, that supports the view that VS is capable of managing her affairs. Furthermore, VS appeared before me. I was impressed with the extent of her understanding of the financial matters that were put to her. I am satisfied that she is capable of managing her affairs and I declare accordingly. 58I order that the amount held by the NSW Trustee and Guardian, on behalf of VS, be paid to her, or as she directs, within 21 days, or such other time as VS and the NSW Trustee and Guardian agree and that the property, situated at Mount Pritchard purchased on behalf of VS, be transferred to her as soon as is reasonably convenient. 59I also order that, within 21 days of completion by the NSW Trustee and Guardian of the transfer and registration of the transfer to VS, or within such other time as VS and the NSW Trustee and Guardian agree, that the NSW Trustee and Guardian make available the certificate of title of the Mount Pritchard property to VS. 60I shall reserve further consideration to either VS, or to the NSW Trustee and Guardian, in the event that there are any difficulties with complying with these orders. 61There is no need to make any orders as to costs since VS is the only party to the proceedings and there was no opposition by the NSW Trustee and Guardian to her application.
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 February 2011
[2003] WASC 72
(1981) 150 CLR 402
(2005) 221 ALR 589
(1974) 2 NSWLR 312
(1982) 2 NSWLR 700