Re C (TH) and the Protected Estates Act [1999] NSWSC 456

New South Wales Supreme Court CITATION : Re C (TH) and the Protected Estates Act [1999] NSWSC 456 CURRENT JURISDICTION : Equity Division Protective List FILE NUMBER(S) : 212/90 HEARING DATE(S) : 22/03/99; 03/05/99 JUDGMENT DATE : 3 May 1999

PARTIES : JUDGMENT OF : Young J

COUNSEL : Applicant: S Norton Respondent: G Durie SOLICITORS : Applicant: Brydens Law Office Respondent: T J Tunbridge (Office of the Protective Commissioner) CATCHWORDS : Mental Health [4]; Application for declaration that incapacity ceased; Test is objective; No room for benign paternalism ACTS CITED : (NSW) Protected Estates Act 1983 s 35 DECISION : Orders in accordance with short minutes

THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION PROTECTIVE LIST

YOUNG, J

MONDAY 3 MAY 1999

212/90 - RE C (TH) AND THE PROTECTED ESTATES ACT

JUDGMENT 1 HIS HONOUR : This is an application under s 35 of the Protected Estates Act 1983 that a protected person's declaration that she is incapable of managing her affairs be revoked and consequential orders. On such an application the onus is on the applicant to make out her case. 2 The applicant is a person of Vietnamese origin, who migrated to Australia in 1983. She was seriously injured as a result of a motor vehicle accident in 1985 and received a substantial amount of damages in 1990. Orders were made under the Protected Estates Act on 13 November 1990 to protect her and the Protective Commissioner has managed her affairs ever since. 3 The relationship between the Protective Commissioner and the applicant, at least in the last few years, has not been good, but that statement does not cast aspersions on either party. The underlying reasons for the deterioration in relations is that the applicant has put up a series of schemes for use of her money which, viewed objectively, left a lot to be desired, and when the Protective Commissioner said something to that effect it made the applicant quite angry. 4 There is little doubt, looking objectively, that the Protective Commissioner acted properly, but it is a fact of life in modern society that if people do not get what they want they get angry and always consider it must be the other person's fault. 5 The situation at present is that there is very little left of the money because of the provision of a house for the applicant, which probably took out a greater amount of the damages award than might have been best, if one was looking at the matter objectively. However, that has been done and it was done at the applicant's then request, but there is only sufficient moneys left to provide income at the current rate up until the year 2003. The banning period, if I can call it that, during which the applicant is not entitled to social security expires in 2001. 6 The applicant now wishes to take charge of her money to use part of it to invest in a noodle business which she hopes will provide an income and employment for her, and to invest the balance. 7 The matter came on before me on 22 March 1999. It seemed to me a borderline case, but it also seemed to me that I should try my hardest to ensure that the applicant got proper advice as to the investments that she was about to make. Probably the pressure I exerted led to Miss Norton of counsel for the applicant, making an application for an adjournment, which I granted, and the time during the adjournment has been utilised by getting advice from some people. 8 The quality of the advice that Mrs C has got is not of the highest class, but at least she has done something to get advice and hopefully she is now in a mind-set where she will continue to do that in the future. However, I have no right to make her do that and there is no use at all in obtaining an undertaking because the only consequence of breaching the undertaking would be attachment, which would be quite inappropriate in a protective matter. 9 As both counsel have put to me, the question that I have to determine as a matter of law and fact is whether the applicant has now shown that she is capable of managing her own affairs. 10 Miss Norton said very firmly to me, and very correctly, that it is not a question of whether the Protective Commissioner or somebody else could manage the affairs of the applicant better, or that if the applicant was left on her own the likelihood would be that her funds would soon be dissipated. One cannot be too paternalistic. People have the right to manage their affairs, unless they fall below the level that is prescribed by the Act. 11 The level that is prescribed by the Act has been interpreted in decisions such as PY v RJS [1982] 2 NSWLR 700, 702; M and The Protected Estates Act 1983 (1988) 12 NSWLR 96 and N v N Hodgson J, 13 March 1997 unreported. I myself have taken the same view in previous cases. The Court applies the objective test, that is it primarily looks to see whether on the material it is more likely than not that the applicant is a person who is able to manage the ordinary affairs of mankind. 12 The evidence in the instant case is from people who are eminently qualified in the disciplines required to make the assessment. Two of them are doctors who gave reports for the purpose of the applicant's motor vehicle injury case. They then took the view that the applicant was not capable of managing her affairs. Dr Grady says that the applicant has made what appears to be a remarkable improvement in behavioural and cognitive estimates, with improvement in depression and he has come to the view that the applicant is now capable of managing her affairs. Dr Fearnside has taken the same view and so has Dr Shores, a neuropsychologist. 13 On the other hand, Miss Jill Farrelly, clinical psychologist, who often gives evidence in these matters and whose opinion is always greatly valued, has taken the opposite view. She says that there are indications in the material furnished both for the accident case and for this case that the applicant has not been fully cooperative with the examiners and has been, in the first instance, endeavouring to show herself less capable and, in the present situation, more capable than she really is. When, however, the material is considered as a whole, the applicant has not reached the appropriate level. 14 Although the applicant bears the onus of proof and although what Miss Farrelly says is strong material the other way, I do think that on the balance of probabilities the applicant has made out her case. 15 The court is always wary when someone who is awarded damages in a motor vehicle accident case puts forward as part of her damages claim permanent brain damage and then a few years later wishes to take up the opposing position, that having got those damages she should now be free to spend them. The instant case is not as bad as some because as Miss Norton says there are two factors that led to the assessment in 1990; one was the brain damage and two was the depression brought about by the accident in which the applicant thought that she would never be able to be lead what she considered a normal life with a husband and children. 16 The material generally shows that this depression has subsided and when that factor is removed it is more likely that one can find that she is now on what I might call the right side of the line. 17 It is a difficult case. I am very much indebted to Mr Durie, counsel for the respondent, and the staff of the Protective Commissioner for presenting the case in the pastoral way they have, and the efforts that they have made to protect the applicant really against herself. I think that if I was merely a judge who had to judge the evidence as to what was best for the protection of the person I would agree with them, but as Miss Norton says that is not my role. 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. I think on the balance of the evidence she is. 18 Accordingly, I make orders in accordance with the short minutes. oOo