Collis v Collis

[2013] NSWSC 2022

Supreme Court

New South Wales

Medium Neutral Citation:

Collis v Collis [2013] NSWSC 2022

Hearing dates:

9 December 2013

Decision date:

09 December 2013

Jurisdiction:

Common Law

Before:

Davies J

Decision:

1. An order pursuant to s 86(1)(a) of the NSW Trustee and Guardian Act 2009 revoking a declaration made by Justice McCallum on 26 August 2009 pursuant to s 41(1)(a) of the Act that the Plaintiff is incapable of managing her affairs.

2. An order pursuant to s 86(1)(b) of the Act revoking an order made by Justice McCallum on 26 August 2009 pursuant to s 41 (1)(a) of the Act that the estate of the Plaintiff be subject to management under the Act.

3. An order pursuant to s 86(1)(c) of the Act that the Defendants release to the Plaintiff control of her estate and be discharged as managers of her estate.

Catchwords:

GUARDIANSHIP - plaintiff injured in motor vehicle accident - plaintiff unable to manage her affairs - order made for managers of plaintiff's estate - improvement in plaintiff's condition - application to revoke earlier declaration an appointment of guardian

Legislation Cited:

NSW Trustee and Guardian Act 2009

Cases Cited:

Pamela Anne Collis bht Elyshia Leanne Collis [2009] NSWSC 852
PY & and RJS [1982] 2 NSWLR 700

Category:

Interlocutory applications

Parties:

Pamela Anne Collis (Plaintiff)
Elyshia Leanne Collis (First Respondent)
Roderick Storie (Second Respondent)
Denis Graham (Third Respondent)

Representation:

Counsel:
P Glissan (Plaintiff)
Submitting appearances (First, Second and Third Respondents)
Solicitors:
Roderick Storie Solicitors (Plaintiff)
Submitting appearances (First, Second and Third Respondents)

File Number(s):

2009/295291

Judgment

1. The Plaintiff was seriously injured in a motorcycle accident on 16 January 2005. She suffered what her rehabilitation specialist, Dr Buckley, described as a traumatic brain injury in the extremely severe range. It was as a result of that accident that an application was made to this Court under s 41 of the NSW Trustee and Guardian Act 2009 that she was incapable of managing her affairs and that her estate be subject to management under the Act.

1. On 26 August 2009 McCallum J made orders: Pamela Anne Collis bht Elyshia Leanne Collis [2009] NSWSC 852. In doing so she set out the test of capacity on such an application contained in Powell J's decision in PY & and RJS [1982] 2 NSWLR 700 at 702.

1. McCallum J extracted passages from the reports of three treating doctors; Dr Patricia Jungfer, Ms Jennifer Batchelor, a clinical neuro-psychologist and Dr Buckley. It is clear from a reading of those extracts that at the time the order was made the Plaintiff was incapable of managing her affairs.

1. Since that time things have changed quite considerably and the Plaintiff now seeks orders under s 86 of the Act to revoke the declarations and orders that were made by McCallum J. In doing so, she relies not only on up-dated reports from each of Dr Jungfer, Ms Batchelor and Dr Buckley, but also from some other doctors who have examined her, and on the basis of some lay testimonials.

1. Dr Jungfer re-examined the Plaintiff on 19 August 2013. In the executive summary to her report of the same date she said this:

Mrs Collis has continued to recover from this traumatic brain injury. Psychometric testing in August 2013 demonstrates on-going impairments of cognition, however none of these cognitive impairments are of sufficient severity that render her incapable of managing her financial affairs.

...

Based on a clinical assessment of Mrs Collis and with reference to the documentary evidence provided at the time of her clinical assessment, Mrs Collis does not have a psychiatric disorder. There are no psychiatric grounds which prohibit her management of her financial affairs. ..."

1. When Dr Buckley had provided his report in July 2008 he had expressed the opinion that:

Mrs Collis probably does not require administration of her funds via the Protective Estates Act.

However he thought that the appointment of a professional financial manager would be of assistance to her.

1. He re-examined Mrs Collis on 16 September 2013. He made reference to the report that he had prepared in 2008. Doctor Buckley said:

I continue now to believe that she does not require Administration of her Funds. It is quite apparent that she could then, and now still can, manage the ordinary affairs of man.

The last statement is a reference to the test set out by Powell J in PY.

1. The Plaintiff was also examined by Dr Bruce Westmore, an eminent psychiatrist well known to the judges of this Court. He examined her on 12 September 2012. He concluded that there were no psychiatric or psychological reasons why she could not, or should not be able to, manage her own affairs.

1. Ms Batchelor saw Mrs Collis again on 18 July 2013. She noted that Mrs Collis told her that she conducted all banking for her husband's architectural drafting firm using an on-line system. She is responsible for paying domestic bills and looking after her personal banking. She manages three housing loans and is capable of keeping abreast of the repayments and in some months will pay off initial money over and above the negotiated monthly repayment sum.

1. Ms Batchelor administered a number of psychometric tests to Mrs Collis. It is not necessary to set out the detail of the results from that testing. Ms Batchelor's conclusion from the testing and from her own assessment was this:

The results of the current assessment reveal that there has been a significant improvement in Mrs Collis' cognitive functioning since the examination conducted in 2008. On the current occasion of testing she demonstrated some difficulty on tests of planning and response inhibition. Mental arithmetic proved mildly disordered.

The impairments identified on testing were not of sufficient magnitude to render Mrs Collis incapable of managing her own financial affairs. She is of average intellect. On most tests of reasoning, problem-solving and response control she performed at estimated pre-morbid level. No evidence of an impairment of recent memory was identified. It is concluded that Mrs Collis is demonstrating the cognitive ability required to effectively manage her own financial affairs.

1. I am satisfied, on the basis of the medical and psychological evidence, that Mrs Collis is now well able to conduct her own affairs having regard to the test set out by Powell J in PY.

1. In my opinion the orders made by McCallum J should be revoked.

1. Accordingly, I make orders 1, 2 and 3 contained in the Notice of Motion of 28 November 2013.

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Decision last updated: 24 February 2014