Drew v H [1999] NSWSC 610

New South Wales Supreme Court CITATION : Drew v H [1999] NSWSC 610 CURRENT JURISDICTION : Protective Division FILE NUMBER(S) : 57/99 HEARING DATE(S) : 15/06/99 JUDGMENT DATE : 15 June 1999

PARTIES : Marianne Drew (P) H (D) JUDGMENT OF : Young J

COUNSEL : SOLICITORS : Solicitor for plaintiff (Ex parte): Ms C Ornelas (Beilby Pouldon Costello) CATCHWORDS : Mental Health [3]; Interim order for manager; Alleged incapable person; Jurisdiction considered; Matters to be established (NSW) Mental Health Act 1983 ACTS CITED : (NSW) Protected Estates Act 1983, ss 13, 20 Third Charter of Justice (1823) Cl xviii Re Bulger (1911) 1 WWR 248 Re Craven (1901) 18 WN (NSW) 243 CASES CITED : MN v AN (1989) 16 NSWLR 525 Ridgeway v Darwin (1802) 8 Ves 65; 32 ER 275 Re Webb (1906) 12 OLR 194 DECISION : See para 16

THE SUPREME COURT OF NEW SOUTH WALES PROTECTIVE DIVISION

YOUNG, J

TUESDAY 15 JUNE 1999

57/99 - DREW V H

JUDGMENT 1 HIS HONOUR : This is an application for the appointment of an interim manager of the estate of the defendant. 2 This morning the plaintiff filed a summons seeking an order that the defendant be declared incapable of managing his affairs and for the usual order to be made under s 13 of the Protected Estates Act 1983. The evidence is not complete and the defendant has not been served. Accordingly, I cannot deal with the application on a final basis. 3 Ms Ornelas, solicitor for the plaintiff, asks for an interim order because she says a lot of the defendant's current problems with aggression and delusions comes about because he is starved of funds. She put that funds can only flow through to him from the insurers of the person whom he is suing for personal injuries, if a receiver and manager is appointed. 4 There is no provision in the Protected Estates Act for this Court to make an interim order. Section 20 gives a stipendiary magistrate or the Mental Health Review Tribunal a power to make an interim order, but nothing is said about the court. 5 The court has inherent powers under its parens patriae jurisdiction to make orders for the benefit of persons needing protection. The question is, however, how far can the court go in reckoning that a person needs protection? Certainly the jurisdiction extends over persons who are or who are alleged to be mentally ill, but under the Protected Estates Act orders can be made notwithstanding there is no evidence of mental illness. 6 The defendant in the instant case is forty-one years of age so there is no question of him coming under the power to deal with infants, as in so many of these cases. Further, a magistrate has decided, at least some time ago, that H is not mentally ill within the meaning of the Mental Health Act 1983. 7 Clause xviii of the Third Charter of Justice (1823) empowers the court to "appoint Guardians and Keepers of the persons and Estate of natural fools and of such as are or shall be deprived of their understanding or reason by the Act of God so as to be unable to govern themselves and their Estate". 8 As Powell J pointed out in MN v AN (1989) 16 NSWLR 525, 533 the corresponding inherent jurisdiction in England extended beyond lunatics and idiots, strictly so called, to all persons who were "unable to act with any proper and provident management" who were "liable to be robbed by anyone" whether they were, strictly speaking, insane or not because the mischief called for as much protection as actual insanity (Ridgeway v Darwin (1802) 8 Ves 65, 66; 32 ER 275, 276). 9 There is thus inherent power to make an interim order to protect the estate of a person who falls within the category referred to by Lord Eldon in Ridgeway. 10 The evidence shows that the present defendant is within that category. The evidence of his behaviour shows that unless he is supplied with money he could well be a danger to the community, but that unless his funds are controlled he does not have sufficient capacity to manage those moneys. 11 He is described by the psychiatrists as a person who is out of control and a danger to the community, and they say that it is a blot on the system that the community is not protected from him by an order under the Mental Health Act. I merely record this, I am not dealing with public protection, but rather the protection of the estate of the defendant. 12 I am thus satisfied that there is inherent power to deal with this application. The next question is what needs to be established by the plaintiff in order to succeed. 13 Ordinarily one would expect that the application would be served on the defendant because it is a basic rule in the Protective Division that orders are not made against the person or property of any defendant without that defendant being given an opportunity to resist the order: Re Craven (1901) 18 WN (NSW) 243. 14 Usually the only exception is where the defendant's condition may be detrimentally affected if he or she is served (Re Craven) or where he or she may be dangerously excited by the service: Re Webb (1906) 12 OLR 194; Re Bulger (1911) 1 WWR 248. The mere possibility of the process server being assaulted is insufficient reason to exempt service (Re Craven). In the instant case it would seem that the defendant's condition may well be detrimentally affected by service before money starts flowing through to him, so that I will proceed on this motion without service having been effected. 15 The plaintiff must then show that there is a strongly arguable case that the defendant is a person who falls within the class specified by Lord Eldon in Ridgeway v Darwin (supra), at least in the short term. The evidence need not go so far as to show that two medical practitioners or a medical practitioner and a psychologist consider that the defendant is incapable of managing his or her affairs, but the evidence must at least show a strongly arguable case that immediate protection is needed to preserve the defendant's property. The evidence in the instant case satisfies me of this. 16 Accordingly, this morning I made orders 2 and 3 in the notice of motion to appoint an interim receiver and manager. I reserved the question of costs and I will continue to reserve them until the hearing. 17 I do this because whilst there is no doubt that the plaintiff's solicitor is entitled to the costs of filing the application and preparing the affidavit evidence, I was not much assisted by the presentation of the material in court and I do not want the impression to be gained that in protective matters costs will be awarded on the indemnity basis in every case. The nominal plaintiff must not be out of pocket, but I would be reluctant to order costs without seeing an itemised account of what is proposed to be charged against the defendant's estate.