P v R [2003] NSWSC 819

New South Wales Supreme Court

CITATION : P v R [2003] NSWSC 819 HEARING DATE(S) : 16/04/03, 10/06/03, 11/06/03, 12/06/03, 16/06/03, 11/07/03, directions in chambers for written submissions, judgment reserved: 27/08/03 JUDGMENT DATE : 9 September 2003

JURISDICTION: Equity Division Protective List JUDGMENT OF : Barrett J DECISION : Protection order made as to estate

CATCHWORDS : MENTAL HEALTH - protection order - whether defendant incapable of managing affairs - whether defendant's solicitor appropriate applicant for order - EVIDENCE - reports of psychiatrists based on material supplied by solicitor - some material hearsay - some material privileged - opinions of psychiatrists confirmed and restated in court by reference to defendant's conduct in court CF v TCML [1983] 1 NSWLR 138 DW v JMW [1983] 1 NSWLR 61 Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 McD v McD [1983] 3 NSWLR 1 CASES CITED : PY v RJS [1982] 2 NSWLR 700 R v P (2001) 53 NSWLR 664 R v Reiner (1974) 8 SASR 102 Steffen v Ruban (1966) 84 WN (NSW) (Pt 1) 264 Sych v Hunter (1974) 8 SASR 118 PARTIES : P - Plaintiff R - Defendant FILE NUMBER(S) : SC P.29/01 COUNSEL : Mr K.W. Andrews - Plaintiff Defendant in Person SOLICITORS : N/A

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION PROTECTIVE LIST

BARRETT J

TUESDAY, 9 SEPTEMBER 2003

P.29/01 – P v R JUDGMENT 1 In these proceedings, the plaintiff seeks (against the strenuous opposition of the defendant) a declaration that the defendant is incapable of managing her affairs, an order that the estate of the defendant be subject to management under the Protected Estates Act 1983 and an order that management of the estate be committed to the Protective Commissioner. Also sought, in addition to an order for the payment of costs out of the estate, is an order dispensing with the requirements of Part 76 rule 11(b) of the Supreme Court Rules. 2 The defendant is a woman of 67 years. In June 1979, she became the victim of a traffic accident in which the car she was driving was struck from behind while stationary at an intersection. In 1985, the defendant, as plaintiff, instituted proceedings in the District Court claiming damages in respect of injury sustained in that accident. In early 2000, the plaintiff became her solicitor in those District Court proceedings. She had previously been represented by several other solicitors in succession. 3 As they currently stand, the District Court proceedings are confined to the issue of damages, a finding on liability favourable to the plaintiff (i.e., present defendant) having already been made. In relation to damages, the defendant has been advised by her legal advisers that it is in her interests that there be placed before the District Court evidence of deterioration of her mental state after the accident, this being a foundation for submissions that damage suffered by her is not limited to back and other physical injuries but extends also to psychological impairment. These background matters were outlined as follows in the judgment of Hodgson JA in R v P (2001) 53 NSWLR 664: "The appellant was involved in a motor accident in 1979. She brought District Court proceedings for injuries arising out of that accident. The hearing of those proceedings commenced in August 1990 and continued in February 1991. The question of liability was determined in her favour, and the matter then continued as an assessment of damages.