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

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.

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.

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.

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2013] NSWSC 2022
Decision Date: 09 December 2013

CaseChat Overview and Summary

The case of Collis v Collis involved the plaintiff, who was injured in a motor vehicle accident, and subsequently found to be unable to manage her affairs. The court was asked to consider an order for managers of the plaintiff's estate. The plaintiff's condition later improved, leading to an application to revoke the earlier declaration and appointment of a guardian. The application was heard in the Supreme Court of Queensland.

The court needed to decide whether the earlier order appointing a guardian should be revoked, given the plaintiff's improved condition. The key issue was whether the plaintiff's recovery was sufficient to enable her to manage her own affairs and whether the appointment of a guardian was still necessary. The court had to balance the plaintiff's autonomy and right to self-determination against the need for protection and support due to her previous incapacity.

The court considered the evidence regarding the plaintiff's physical and mental state, as well as the opinions of medical professionals. It was noted that while the plaintiff had made significant improvements, there were still concerns about her capacity to manage her financial and personal affairs independently. The court found that the appointment of a guardian was still necessary to ensure the plaintiff's welfare and protection. Consequently, the application to revoke the earlier declaration and appointment of a guardian was dismissed.

The court ordered that the existing order appointing managers of the plaintiff's estate would remain in effect until further order. The plaintiff was to continue to be under the care and management of the appointed guardians, who were to act in her best interests. The court emphasised the importance of ongoing assessment and review of the plaintiff's capacity and circumstances to ensure appropriate support and protection.

Orders