Walker v The Public Trustee

1 MASTER: This is an application commenced by summons in which the plaintiff, Mr Walker, seeks to have paid out to him, pursuant to Pt 50 of the Rules, sums which have been paid to the Public Trustee, invested by the Public Trustee and applied for the benefit of the plaintiff. 2 The payment arose because of an accident which occurred to the plaintiff. Proceedings in respect of that accident were commenced in this court and a judgment was given by his Honour Mr Justice Grove on 22 August 1997. The plaintiff himself was born on 23 February 1977 and is now aged twenty-four. The accident was on 13 November 1994 and the proceedings came before his Honour, as I have said, in 1997. 3 His Honour's judgment considered all the medical evidence that was then put before the court. That included evidence, on the plaintiff's behalf, of Dr Bell and it also included evidence presented on behalf of the defendant. His Honour noted that the plaintiff was unconscious after the accident and, ultimately, at p 7 of his Honour's judgment, he accepted the evidence given before him of Dr Bell in preference to that of the defendant. I will refer to that in a little more detail, but one of the things his Honour observed was that the plaintiff had difficulty with memory and concentration. The plaintiff obviously had started to suffer from epilepsy by the time of the hearing as a result of the head injury which he suffered. 4 His Honour described (at p 19) the principal consequences of the injuries that the plaintiff had sustained as being loss of memory and concentration. He gave examples of how the plaintiff was unable to perform some tasks in the voluntary work which he was then doing. Ultimately, his Honour found a verdict in favour of the plaintiff. He made an order in the following terms: "I direct that the amount of judgment be paid into court and that it be paid out to the Public Trustee to be dealt with by him for the benefit of the plaintiff pursuant to the Damages (Infants and Persons of Unsound Mind) Act 1929" 5 A tutor had been appointed for the plaintiff during the course of the hearing. It seems apparent from the evidence that was given that the plaintiff was not a person of unsound mind, he was not a minor, and it would appear that his Honour's order was perhaps made in error. The real situation that occurs where there is a tutor and where the person is not of unsound mind is that the court exercise a supervisory jurisdiction as to the funds which might flow to the plaintiff. 6 This jurisdiction was referred to in the case of Lim v Nominal Defendant, Hodgson J, 27 June 1997. Under the heading of "Decision" his Honour said the following: "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 disabled person'. 'Disabled person' is defined in Pt 1 r 8 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 disabled 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 disabled 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 notwithstanding that the plaintiff is not capable of managing his affairs." 7 The situation is not dissimilar in this case. Clearly, it was appropriate for there to be a tutor and, of course, there is now no need to discharge the appointment of a tutor because the proceedings are spent. However, the application requires the court to be satisfied that the plaintiff is now capable of managing his affairs. The case has been presented on that basis rather than there being some particular circumstances which justify the payment out. 8 The medical evidence which was before me includes the reports of Dr Bell which were before his Honour, and I have noted those reports. His conclusion at the trial was that he had suffered from a closed head injury which left him with a degree of handicap, and that was particularly affected by his epilepsy. Since the hearing, there have been some further reports, one by Professor Neil Buchanan, who is an expert in that field, and there has also been a further report by Dr Bell. 9 Professor Buchanan's involvement started in 1998 when he was to deal with the post-traumatic epilepsy which the plaintiff was then suffering. His diagnosis was that he had that post-traumatic epilepsy which manifested itself by simple and complex partial seizures with poor seizure control. That has the consequences which are referred to by his Honour. He has seen him on quite a number of occasions, and the last occasion was on 11 November 2000. At that stage he reported there had been only one recent seizure and that was on 2 June, and that he had, just before the visit on 11 November 2000, had a small partial seizure. 10 He refers to the work that the plaintiff was doing, but I will come back to that. Importantly, he thought that his seizure control was almost complete, he was much more alert, his moods had stabilised and he noted improvements in 1999. Looking to the future, he would not anticipate a deterioration in the seizure control. He thought that he would have an occasional seizure from time to time. Obviously his medication, which has been changed, is working well. 11 Dr Bell also provided a recent report in May this year. As I say, he has written a number of reports which were available at the trial, and he referred to the involvement of the plaintiff's wife in the plaintiff's treatment. The plaintiff met his wife, Tammy, some time after the court hearing. They lived together for a while and then they married on 16 January 1999. On 21 January that year they in fact purchased, but in the name of the Public Trustee, the house at 5 Kinross Close, Port Macquarie for $166,000. These funds were advanced by the Public Trustee. They have lived together since then and both are working. 12 The plaintiff has been working with Down's syndrome children, initially on a part time basis several days a week, but obviously he is progressing well because, in January 2002, he will be working on a full time basis five days a week. His wife Tammy also works with children with disabilities at another place, and she is able to observe the improvements that have occurred. 13 In his final report, Dr Bell says: "His conduct has improved so much since I last reported on him in 1997 that my recommendations are no longer relevant now. He still needs the assistance almost any person requires for managing money these days, but he is no longer irresponsible or incapable of making responsible decisions. His wife has an understandable reluctance to assist in the management of his funds, but she strikes me as being a very suitable person to assist him. In answer to your question, I am now of the opinion that Mr Walker is capable of managing his own affairs with the assistance of the usual professional advisers. I would think it safe for the court to release the funds to Mr Walker." 14 There is also on that aspect in evidence the financial plan which has been prepared to invest the funds, and it is perfectly apparent from the evidence which was given by Mr Walker that he proposes to follow these recommendations. I am satisfied that he sees the wisdom of taking appropriate professional advice to safeguard his future. His wife is obviously of the same view and will no doubt support him in this. In the circumstances, I am satisfied that the plaintiff is now capable of managing his affairs and, accordingly, appropriate orders can be made. 15 I have earlier referred to the fact that the order made by his Honour under the Damages (Infants and Persons of Unsound Mind) Act 1929, is probably in error. Even under that Act, under s 5(2), the court can give directions or determinations which would extend to the directions which I propose to give in any event, although I express them pursuant to Pt 50 r 6A and r 7. 16 There is also the property which is registered in the Public Trustee's name. That will need to be transferred, and I will make an appropriate order. 17 Accordingly, the orders that I make are: 1. That the Registrar of the court demand repayment by the Public Trustee of the moneys presently held by the Public Trustee as a result of the payment to the Public Trustee of the verdict moneys in proceedings 20647 of 97. 2. I order that, upon payment to the Registrar, those funds are to be paid out of court to the plaintiff, or, on his written authority, to his solicitor. 3. I order the defendant to transfer to the plaintiff the property situated at 5 Kinross Close, Port Macquarie, being the whole of the land in folio identifier 33/825844. 4. I order that, upon completion by the Public Trustee of the transfer and registration of the transfer to the plaintiff, within a reasonable time, that the Public Trustee then make available the certificate of title to the plaintiff. 18 There has been debate before me about the costs of the Public Trustee. The Public Trustee is, of course, in exercising the function, whether it be on behalf of the court or pursuant to the Act, acting as a trustee. The court needs to have the involvement of the Public Trustee in these proceedings to have a party who can put matters that the court may take into account in an application of this kind. In my view, it is appropriate that the Public Trustee's costs be paid on an indemnity basis out of the funds before the payment back to the court. 19 There were two adjournments. However, one of them was because the matter was started by an appointment rather than in compliance with Practice Note 63. In the circumstances, I do not think that the delays are anything unusual and, accordingly, I will not make any other costs. I order that the exhibits can be returned.

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