E v R [2013] NSWSC 835

Supreme Court New South Wales

Medium Neutral Citation: E v R [2013] NSWSC 835 Hearing dates: 21 June 2013 Decision date: 21 June 2013 Jurisdiction: Equity Division - Protective List Before: Lindsay J Decision: Orders for the plaintiff to be discharged from the office of manager of the estate of the defendant, and for management of the estate to be committed to the NSW Trustee. Catchwords: MENTAL HEALTH - guardians, committees, administrators, managers and receivers - other matters - plaintiff, as manager of estate of defendant, was to act under direction of Protective Commissioner - plaintiff commenced and maintained unauthorised legal proceedings - whether plaintiff should be removed from office of manager Legislation Cited: - Cases Cited: - Texts Cited: - Category: Principal judgment Parties: NSW Trustee & Guardian (Applicant) Manager, E (Plaintiff) R, a protected person (Defendant) Representation: - Ms C Phang, Legal Officer of NSW Trustee & Guardian (Applicant) Defendant, in person File Number(s): 2012/00204640

Judgment - EX TEMPORE 1On 17 March 2009 this Court made orders under the Protected Estates Act 1983 NSW appointing the plaintiff as manager of the defendant. The plaintiff is the common law wife of the defendant. They are domestic partners. 2The orders made on 17 March 2009 expressly required the plaintiff to act, as manager, under the direction of the Protective Commissioner. The defendant was injured in a motor bike accident on 29 July 2006. In 2009 the plaintiff, as tutor for the defendant, commenced proceedings in the District Court of New South Wales for damages arising from injuries sustained by the defendant in that accident. She did so without the required Authority and Direction of the New South Wales Trustee and Guardian ("the NSW Trustee"). 3It was not until 11 February 2010 or thereabouts that the NSW Trustee first realised that the District Court proceedings had been commenced. On 9 March 2010 the NSW Trustee issued Directions and Authorities to the plaintiff which drew to attention a need for her to act under the supervision of the NSW Trustee, and not to deal with the estate of the defendant in any manner without the prior approval of the NSW Trustee unless given specific authority in a Direction or Authority of the NSW Trustee. 4The NSW Trustee asked the plaintiff, as manager of the defendant's estate, to provide independent legal advice as to the merits of continuing the District Court proceedings. The plaintiff did not provide such advice until May 2012, after the District Court had contacted the NSW Trustee directly to enquire about the authority of the plaintiff to maintain the District Court proceedings. 5After receipt of legal advice as to the merits of the District Court proceedings the NSW Trustee (on 30 May 2012) issued an Authority and Direction authorising the conduct of those proceedings. That Direction and Authority specifically provided that the plaintiff was not authorised to continue the District Court proceedings without the use of legal representation for the defendant throughout the proceedings. 6Problems have arisen in the conduct of the District Court proceedings, and in the management of the defendant's estate, arising from the plaintiff's conduct of the proceedings without a solicitor. She has also, at least for a time, withdrawn from the office of tutor representing the defendant in the District Court proceedings, leading to delays in the proceedings and administrative difficulties. 7To date, four firms of solicitors appear to have been retained by the plaintiff, at different times, to conduct the District Court proceedings. 8The NSW Trustee filed a notice of motion in these (Supreme Court) proceedings on 27 June 2012 seeking, inter alia, an order that the plaintiff be discharged from the office of manager of the estate of the defendant. 9That notice of motion was based on a course of conduct by the plaintiff, involving the unauthorised conduct of legal proceedings, not limited to the District Court proceedings. 10It is not necessary for the purpose of today's judgment to recite chapter and verse about the course of the District Court proceedings, or other proceedings. 11On 22 April 2013, when the current proceedings (including the NSW Trustee's notice of motion filed 27 June 2012) were before Windeyer AJ, his Honour took note that the plaintiff had, at that time, arranged for legal representation in the District Court proceedings. He adjourned the NSW Trustee's notice of motion to 26 August 2013 in anticipation of the then scheduled trial of the District Court proceedings on 1 July 2013. 12The NSW Trustee's motion was adjourned on the common understanding, perhaps the common hope, that the District Court proceedings would have been resolved by August 2013. 13The (Supreme Court) proceedings were, however, re-listed before me on 17 June 2013, as the Protective Judge, on the application of the NSW Trustee. The occasion for the proceedings to be re-listed was that the NSW Trustee had become aware of the termination of the retainer of the solicitor who, at that time, had been thought to be charged with the responsibility of conducting the District Court proceedings in the lead up to the trial scheduled for 1 July. 14The re-listing was necessary because the common assumption upon which the NSW Trustee's notice of motion of 27 June 2012 had been adjourned had proven to be incorrect. Fresh attention to the arrangements for management of the defendant's estate needed attention. 15The proceedings were re-listed before me on 17 June 2013 for directions. The plaintiff and the defendant had notice (albeit short notice) of that re-listing; but, via email, they declined to appear. 16At the directions hearing the NSW Trustee tendered evidence to the effect that the District Court proceedings had been the subject of a directions hearing on 14 June 2013. At that directions hearing the trial date scheduled for 1 July 2013 had been vacated because of the termination of the retainer of the solicitor earlier retained by the plaintiff to conduct the proceedings. 17The evidence adduced by the NSW Trustee at the directions hearing before me also touched upon the availability, or otherwise, of funds of the defendant which had been presumed by the NSW Trustee to be invested with the Commonwealth Bank on a term deposit. It seems that the plaintiff had withdrawn the funds from the bank without notice to the NSW Trustee. 18On the evidence adduced by the NSW Trustee on 17 June 2013, I gave directions for the NSW Trustee's notice of motion filed 27 June 2012 to be taken out of the list for 26 August 2013 and for it to be listed for hearing before me today (21 June 2013). 19Pursuant to those directions, the NSW Trustee served documentation on the plaintiff and the defendant. That documentation was designed to ensure that they were on notice of the fact that the NSW Trustee intended (today) to press for an order that the plaintiff be discharged from the office of manager of the estate of the defendant. 20By an email addressed to my Associate yesterday, the plaintiff expressed a strong objection to the NSW Trustee's notice of motion being brought on for hearing. 21As events unfolded, she has not appeared before me today, but the defendant has appeared in person. 22The plaintiff may be presumed to have maintained her objection to the NSW Trustee's notice of motion being brought on for hearing. 23That said, the defendant has faithfully brought to the Court's attention a comprehensive range of documents compiled, at least in part, by the plaintiff and the defendant acting in concert. Those documents include a witness statement prepared by the plaintiff, and signed by her, together with a witness statement prepared, or at least adopted, by the defendant. All the documentation brought to attention by the defendant has been admitted into evidence on the hearing of the NSW Trustee's notice of motion. 24On the hearing of that motion I have been assisted by having had an opportunity to meet the defendant, and to hear something of the difficulties and frustrations of the life he has had to live since suffering injuries in his motor bike accident. I have also had an opportunity to notice the deep affection that he has for the plaintiff, and his evident reliance upon her for the assistance that she appears willingly to have offered him over a considerable period of time. 25Upon my consideration of the NSW Trustee's notice of motion, I have taken into account the materials that have been provided to the Court by the defendant personally and (via the defendant and via emails addressed to the Court) the materials provided by the plaintiff. 26I am mindful that the plaintiff and the defendant appear, as presently advised, to want to explore the possibility of the management order affecting the defendant's estate in New South Wales being revoked. They have lived for some time now in the Australian Capital Territory and, I gather, their present intention is to remain there. 27Accepting that that is so, the fact remains that a major asset of the defendant appears to be such, if any, entitlement to damages he has arising out of his motor bike accident. That right is inevitably bound up with the pendency of the District Court proceedings in New South Wales. 28Whatever might happen in terms of a future application for revocation of any management order affecting the defendant's estate, action is required now to regularise the conduct of the management of the defendant's estate, and to do so in a way that enables the District Court proceedings to be conducted in an orderly way. 29In all the circumstances, and bearing in mind the tortuous history of the District Court proceedings to date, it is in my view appropriate (in the best interests of the defendant) that orders be made today for the transfer of responsibility for management of the defendant's estate from the plaintiff to the NSW Trustee. 30The NSW Trustee's notice of motion seeks not only orders designed to have that effect, but also orders requiring the plaintiff to file accounts. The order for the filing of accounts is not today pressed by the NSW Trustee, but an application for filing of accounts might at some later stage need to be re-activated. 31I make the following orders and notations: (1) Order that the plaintiff be discharged from the office of manager of the estate of the defendant. (2) Order that the management of the estate of the defendant be committed to the NSW Trustee until further order. (3) Order that the plaintiff, on or before 31 July 2013, hand over and transfer the estate of the defendant (including all papers relating to the conduct of the proceedings in the District Court of New South Wales bearing case number 2009/00336360 styled "xxxxx xxxxxxxx by his tutor xxxxx xxxxxxx v xxxxxxxxx xxxxx xxxxx") to the NSW Trustee. (4) Order that the costs of the NSW Trustee of the notice of motion filed in these proceedings on 27 June 2012 be paid out of the estate of the defendant. (5) Note that it is the intention of the NSW Trustee to limit its claim to costs under this costs order to expenses incurred by way of filing fees, service fees and other out of pocket expenses. (6) Order that the NSW Trustee be given such leave as may be necessary to discontinue the application for accounts made in the notice of motion filed 27 June 2012, reserving the right of the NSW Trustee to make such future application, if any, as it deems appropriate in relation to the preparation of accounts.