New South Wales Supreme Court CITATION : Treasure v North West Disability Services Incorporated and Ors [2000] NSWSC 910 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 20997/97 HEARING DATE(S) : 4 September 2000 JUDGMENT DATE : 13 September 2000 PARTIES : Paul TREASURE- plaintiff North West Disability Services Incorporated and Ors - Defendant JUDGMENT OF : Simpson J at 1 COUNSEL : Mr F Fletcher - Plaintiff SOLICITORS : Taylor & Scott - Plaintiff LEGISLATION CITED : Trustee Act 1925 Public Trustee Act 1913 DECISION : Notice of Motion dismissed. THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION SIMPSON J 13 September 2000 20997/97 Paul TREASURE v NORTH WEST DISABILITY SERVICES INCORPORATED AND OTHERS Judgment HER HONOUR : 1 By notice of motion filed in these proceedings the plaintiff, Paul Treasure, seeks an order appointing the Public Trustee as trustee of certain funds to which he is entitled. Short history 2 In order to gain an understanding of the history of this matter I have had regard to the file held by the court, as well as to affidavits filed on the plaintiff's behalf. The following short history emerges. 3 The plaintiff was born on 3 April 1975. He is now twenty-five years of age. From birth he has suffered from cerebral palsy, and is, by the legal definition, blind, although he retains some limited vision. He has always had severe physical disabilities, living and being educated in therapeutic establishments. He was confined to a wheelchair. In 1989 he was psychologically assessed and found to be functioning intellectually at below average level for his age, but above the range indicated to identify intellectual disability. 4 On 5 February 1997, while participating in a programme for the disabled, he suffered an injury that resulted in incomplete quadriplegia. The injury does not appear to have had any effect on his intellectual capacity or his capacity to manage his own affairs. As a result of the injury he brought proceedings in negligence against the three defendants. He was named as plaintiff. No tutor was appointed. It does not appear ever to have been suggested that a tutor should be appointed. That is, the plaintiff, now twenty-five, has been considered to be capable of making decisions for himself. 5 On 31 July 2000 terms of settlement resolving the proceedings were filed and orders made in accordance therewith. A substantial verdict was entered in favour of the plaintiff. The terms of settlement were signed by counsel on the plaintiff's behalf. The approval of the court was not sought. The terms provided for payment of certain amounts to discharge debts the plaintiff had accrued, and to accommodate statutory provisions relating to reimbursement for services afforded to the plaintiff by the Commonwealth medical authorities. 6 What the plaintiff now seeks is an order that the balance of the verdict money be paid to the Public Trustee to be held for his welfare and benefit. He has given an explanation, in affidavit form, for his desire for the order. There is a very real basis for the plaintiff's wish to have assistance in the management of his money. The Public Trustee has consented to appointment as trustee. Although the three defendants who were named in the principal proceedings are named in the notice of motion seeking the order (which was filed in the principal proceedings) they have not participated in the present application. They have no further interest or involvement. 7 When the notice of motion came before the court I asked counsel who appeared for the plaintiff to identify the source of power for making an order of the kind sought. He was unable to point to any power. Subsequently I received a written submission referring to s 70 of the Trustee Act 1925, ss 12 and 13(1) of the Public Trustee Act 1913, and to Jacobs: the Law of Trusts, 4th edition para 1528. 8 Nothing in this material persuades me that the court has power to make an order of the kind sought. The sections and passages referred to are concerned with the jurisdiction of the court to appoint a trustee. That jurisdiction exists for circumstances where it is appropriate that a trust be created or a trustee be appointed. None of the sections referred to creates a power to appoint a trustee in the present circumstances. In the ordinary course it would be inappropriate to make an order for the appointment of a trustee of the property of a person who is of full age and capacity. The question is not whether it is appropriate that a trustee be appointed; the question is whether it is within the power of the court to make an order that a trustee be appointed. An order for the appointment of a trustee is to be distinguished from the voluntary appointment of a trustee. It is to be borne in mind that an order of the court, even when made by consent, is backed by significant enforcement procedures. An order of the court is not made lightly, even when made by consent. That is because an order potentially exposes anybody who acts in contravention of the order to penalties or other means of enforcement. 9 It is appropriate to test the question of the existence of power to make a particular order, not by reference to the making of such an order by consent, or on the application of the person against whom it would appear to be made, but by reference to the question whether the court would have power to make the order against the wish or will of that person, or after a litigated dispute. If the court would not have power to make such an order following a litigated dispute, or after adjudication, or against the will of the person against whom it purportedly operates, then it does not have power to make the order by consent. The very term "order" envisages the exercise of the power to make the order contrary to the wish of at least one of the parties involved, and after the adjudication of a dispute. It makes no difference that orders are frequently made by consent; the power to make the order is tested by reference to what the court could do if that consent is not forthcoming. 10 Having regard to the plaintiff's apparent capacity, there would be no power in the court to make the order now sought against his will, or after a dispute in which he opposed the making of the order. The power of the court is not expanded because the result is desired or sought by the person against whom it is apparently made. 11 I would, however, add that I sympathise with the plaintiff's wish for assistance in the management of the large sum of money to which he has become entitled, and, possibly, for protection against unwise expenditure of the money, either at his own initiative or at the possible instigation of others. His wish for that protection does not confer on the court a power it does not otherwise possess. 12 It is therefore necessary to dismiss the notice of motion. 13 The plaintiff is, of course, at liberty to create a trust himself, and, subject to the relevant statutory provisions, to appoint either the Public Trustee or some other trustee organisation to take care of his funds. He may consider it wise to seek the advice of lawyers experienced in the field to draft an appropriate instrument for the appointment of a trustee. I emphasise that, in order to secure the protection he wishes, it would be necessary to obtain specialist advice. 14 The notice of motion is dismissed. ********** Last Modified: 09/27/2000 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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