GX v NSW Trustee and Guardian

[2018] NSWSC 1180

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	GX v NSW Trustee and Guardian [2018] NSWSC 1180
Hearing dates:	3, 22, 23 & 31 August, 24 October and 21 November 2017
Date of orders:	03 August 2018
Decision date:	04 August 2018
Jurisdiction:	Equity
Before:	Slattery J
Decision:	Plaintiff’s application for an order for revocation of the protected estate management orders made against her is refused.
Catchwords:	GUARDIANSHIP – protected person – protected estate management orders in place in respect of the protected person who brings these proceedings – the plaintiff seeks the revocation of the existing protected estate management orders – the plaintiff is self-represented – whether the plaintiff is capable of managing her affairs.
Legislation Cited:	NSW Trustee and Guardian Act 2009, ss 41 and 86 Vexatious Proceedings Act 2008
Cases Cited:	P v R [2003] NSWSC 819 P v NSW Trustee and Guardian [2015] NSWSC 579
Category:	Principal judgment
Parties:	Plaintiff: GX Defendant: NSW Trustee and Guardian
Representation:	Solicitors   Plaintiff: in person Defendant: R. Sawtell
File Number(s):	(2016/238747)
Publication restriction:	No

Judgment

1. The plaintiff is a protected person by virtue of orders made in this Court’s Equity Division Protective List (Proceedings No. 29 of 2001) on 9 September 2003: P v R [2003] NSWSC 819, Barrett J.

2. The plaintiff now seeks in these proceedings (2016/238747) to revoke the protected estate management orders affecting her. This judgment decides the question against the plaintiff, and concludes that those orders should not be revoked.

3. The plaintiff appeared for herself throughout the proceedings. The Court dispensed with much of the Uniform Civil Procedure Rules2005 (“UCPR”) which requires a protected person such as the plaintiff only to appear by a tutor. However, it was apparent that no tutor could be found for her to conduct these proceedings. If the Court had not dispensed with the rules, she would not have had the opportunity to present her case in person. This procedure is not uncommonly permitted by the Court on such applications in the protective list: P v NSW Trustee and Guardian [2015] NSWSC 579, Lindsay J.

4. Ms Rachel Sawtell, solicitor, appeared for the defendant, the NSW Trustee and Guardian (“NSWTG”) throughout the proceedings. Ms Sawtell provided considerable assistance to the Court so that the plaintiff’s application could be presented to its best advantage. The NSWTG neither consents to nor opposes the plaintiff’s application for revocation of the protected estate management orders.

5. Simply put, the plaintiff contends in her case that she is now capable of managing her affairs and that the existing order should be revoked. She says that she can do her own banking, manage her own money, pay her own bills and should be permitted to manage her own financial affairs. She deeply resents the control over her life by the NSWTG which she wishes to throw off by having Barrett J’s orders revoked. She says she does, in fact, manage some smaller amounts of money from her pension, which is proof that she could manage her financial affairs generally. But the evidence that she advanced herself and the medical evidence obtained about her paints quite a different picture about her capacity to manage her financial affairs.

The Conduct of the Proceedings

6. The plaintiff’s conduct of these proceedings gave the Court insight into her broader capacity to manage her estate. The issues raised by the plaintiff’s conduct of the proceedings are discussed in this section.

Difficulties with Identifying and Adducing the Evidence

7. Only one witness gave oral evidence in the proceedings, Professor Carmelle Peisah, a consultant psychiatrist, who had examined the plaintiff pursuant to orders of the Court. Her evidence is discussed later in these reasons.

8. The plaintiff herself ultimately read and relied upon a number of affidavits and medical reports, to which the NSWTG did not object. She was not cross-examined.

9. But it took some time and a number of adjournments for the Court to ensure that the plaintiff had advanced all the evidence that she wished to advance. At one point, despite being invited to present her case, she declined to read any evidence at all. But when the Court asked her what documents she wanted from the Court’s file to rely upon in evidence, she eventually identified those that she wished to tender.

10. She complained throughout the proceedings of missing documents and the theft of documents by her neighbours. So the Court gave her a number of adjournments to permit her to gather further evidence into a supplementary statement in her case. The Court dispensed with some of the UCPR to permit subpoenas to be issued to persons (mainly neighbours) who she said had taken her documents from her home, so they were not available for her to tender.

11. Upon the return of those subpoenas, no documents were produced. The plaintiff was unhappy with this outcome. But the Court saw no basis to require the various subpoenaed parties to be examined on their subpoenas.

The Plaintiff’s Access to Legal Advice

12. The plaintiff complained several times in the course of the proceedings that she was unable to obtain legal advice, because she could not get access to her funds (which are held by the NSWTG) in order to pay solicitors. The Court raised this with the NSWTG, suggesting that if the plaintiff were to retain a solicitor in these proceedings that it would be appropriate for the legal bills. The Court suggested this to maximise the plaintiff’s opportunity to obtain legal advice to assist her in presenting her case.

13. In response, the NSWTG wrote to the plaintiff on 24 July 2017 offering that if she wished to be legally represented, then her solicitor should contact the case officer of the NSWTG, Ms Sawtell, and provide to the NSWTG copies of any costs agreement, cost disclosures and estimates of costs entered into or passing between the plaintiff and her proposed solicitor. The Court made clear to Ms Sawtell at the hearing on 24 October, and as Ms Sawtell confirmed on behalf of the NSWTG, it was not part of the NSWTG’s role to choose a solicitor for the plaintiff. However, pending the outcome of these proceedings, as the NSWTG still has supervisory functions over the plaintiff’s estate, it would be appropriate for the NSWTG to have some prudential oversight of the amount of money being expended by solicitors on her behalf.

14. Such an oversight function could have perhaps been undertaken by a third party pending the outcome of these proceedings. But on a later occasion, the plaintiff made clear that she was not going to engage a solicitor in whatever mechanism the Court put in place for her. This was so despite the fact she had at first said that it was a lack of funds that had denied her that opportunity.

15. In the end, there seemed little point in pursuing such third party arrangements, which despite being offered to her by the Court, were persistently declined by the plaintiff.

The Allegations of Missing Documents

16. On many occasions in the course of the proceedings, the plaintiff indicated that documents which had been sent to her had been stolen by her neighbours from her home and from her letterbox. She also alleged that when she had been given documents in the courtroom that she had only been given partial copies of the documents in question. So far as any document provided to her by the Court is concerned, this allegation is not true. But whenever she made such complaints, the Court attempted as far as it possibly could to give her replacement copies.

17. This happened on almost every occasion that the matter came before the Court. The extent of her allegations of lost documents and the replacements that were provided by the Court are evident from the transcript of the proceedings. Set out below are examples of occasions between August and October 2017 which show the assistance given to her to overcome her concerns about the alleged denial of documentation to her.

18. On 3 August 2017, the Court provided the plaintiff with access to the Court file, with the consent of the NSWTG. The plaintiff inspected the Court file under the supervision of Ms Sawtell, so that the plaintiff could inform the Court whether, in her view, anything was missing from her own records that could be located in the Court’s file and so that she would therefore be in a position to request a copy of anything that she though she needed.

19. During the course of the hearing on 31 August, the Court provided the parties with copies of the responses to subpoenas issued by the plaintiff to three of her neighbours, which responses became Exhibit 2 in the proceedings. The Court also provided the plaintiff with copies of Dr Peisah's report dated 22 March 2017 (Exhibit 1) and Ms Sawtell's affidavit of 10 August 2017.

20. On 31 August, the plaintiff said she handed a bundle of documents she had been using to a court reporter following the adjournment. The Court provided both parties with a further copy of this bundle of documents on 31 August 2017, which was marked Exhibit B.

21. On 24 October, the Court arranged for a further copy of Dr Peisah’s report to be provided to the plaintiff after she indicated she no longer had a copy. The Court also provided the plaintiff with a copy of her Notice of Motion filed on 8 August 2016 and her supporting affidavit. On this hearing day, the plaintiff was also provided with a copy of a letter dated 27 July 2017, which had previously been sent by the NSWTG to the plaintiff offering her an opportunity to contact the NSWTG and to request that her assets be used to pay solicitors (Exhibit 3).

22. The Court made its own inquiries in the court file and located medical reports, which the plaintiff sought to rely upon, and which were marked Exhibit A in the proceedings.

Legal Principles

23. Section 41(1)(a) of the NSW Trustee and Guardian Act 2009 (“the Act”) empowers the Court to, if satisfied that a person is incapable of managing his or her affairs, declare that the person is incapable of managing his or her affairs and to order that the estate of the person be subject to management. The Court may then appoint a suitable person as manager of the estate, or commit the management of the estate to the NSWTG (the Act, s 41(1)(b)).

24. Under s 86(1)(a) and (b) of the Act, the Court has the power to revoke a declaration that the plaintiff is incapable of managing her affairs, and revoke an order that the plaintiff’s estate be subject to management under the Act. Section 86 provides as follows:

“86   Revocation of orders by Supreme Court

(1)   The Supreme Court, on application by a protected person and if the Court is satisfied that the protected person is capable of managing his or her affairs, may:

(a)   revoke any declaration made that the person is incapable of managing his or her affairs, and

(b)   revoke the order that the estate of the person be subject to management under this Act, and

(c)   make any orders that appear to it to be necessary to give effect to the revocation of the order, including the release of the estate of the person from the control of the Court or the manager and the discharge of any manager.

(2)   For the purposes of this section:

(a)   evidence of a person’s capability to manage his or her own affairs may be given to the Supreme Court in any form and in accordance with any procedures that the Court thinks fit, and

(b)   the Court may personally examine a person whose capability to manage his or her affairs is in question or dispense with any such examination, and

(c)   the Court may otherwise inform itself as to the person’s capability to manage his or her own affairs as it thinks fit.”

25. Barrett J analysed the relevant authorities and set out his formulation of the test in P v R [2003] NSWSC 819 at [26]:

“The task of the court, upon an application such as this, is to make a judgment as to the capacity and ability of the person concerned to cope with the ordinary routine affairs of living, particularly so far as they concern the person's property. This is a somewhat shorthand version of the tests laid down by the authorities to which I have already referred. The point to be emphasised is that the requisite judgment is to be made in the light of objective physical facts concerning the relevant person's property, money and other assets and the way the person is able to look after them. If there is a lack of capacity, the reason for it does not matter.”

26. With these principles in mind, it is necessary to examine the plaintiff’s situation.

The Plaintiff, Her Estate and the NSW Trustee – 2001 to 2017

27. Much of the plaintiff’s personal history has been helpfully set out by Barrett J in his Honour’s decision in P v R [2003] NSWSC 819. I will draw upon some of that relevant history now.

28. At the time these proceedings came before me, the plaintiff was 82 years old. She is a single woman, living alone at a property she owns on Sydney’s Northern Beaches. She is one of ten siblings. In 2005, one of her brothers acted as her Guardian. She was previously married and has no children. At this point in time, she appears to be isolated from her surviving family members.

29. The plaintiff completed a nursing degree at a hospital on the North Coast of New South Wales and at one time held four nursing certificates in General Nursing, Midwifery, Maternal and Infant Health, and Psychiatry. The plaintiff held her nurses registration until 2013. She has also been a longstanding Centrelink pension recipient.

30. The plaintiff has commenced numerous proceedings against the police, the Crown Solicitor, the Public Guardian and other defendants in the Local Court, the District Court and this Court. The NSWTG has ultimately discontinued most of those proceedings, which have been brought without any proper basis. The costs to the plaintiff of these proceedings have been substantial and are detailed in the affidavit of Ms Sawtell sworn on 18 August 2017. At the time these proceedings came before me, the plaintiff was still involved in Land and Environment Court (“LEC”) proceedings in relation to ongoing disputes between the plaintiff and her local council involving buildings on her property.

31. During the course of the proceedings, the plaintiff spoke about a number of set issues, to which she returned tirelessly. Some of those issues are briefly summarised below. Her tendency to return to these subjects and to act upon her concerns is important background to her character and provides additional context to her ability to manage her day-to-day affairs.

32. The Plaintiff’s Neighbours. The plaintiff alleges that her neighbours have been breaking into her house without her permission since 1992 and that they have stolen and continue to steal her personal papers; her mail; her nursing registration papers; her diaries; various important documents contained in lever arch folders; photographs; her house and post office box keys; and a number of other items that she claimed were important to her. She says that despite her changing the locks to the doors of her house, her neighbours continue to steal from her. The plaintiff says she has even resorted to nailing her doors shut to prevent the alleged break-ins, leaving her with no other option, in her eyes, but to enter and exit her house through the windows. But the plaintiff says that her neighbours have also sometimes been returning documents and other items that they have stolen. The plaintiff also says that her neighbours have sawn away a 20ft pier underneath the 45ft high balcony of her residence.

33. Although the plaintiff was not cross-examined and the plaintiff’s case was not answered by opposing evidence, her account of her neighbours’ conduct is so far-fetched and fanciful that the Court cannot accept it. Moreover, the Court has direct experience of the plaintiff not being able to find documents which had been given to her in Court on previous occasions. It seems to be far more likely that the plaintiff has lost documents altogether or has such disordered organisation of her own documents that she cannot remember where she has placed them. Whilst I accept that the plaintiff may have adopted some of the behaviours that she identifies in response to alleged threats from her neighbours, the Court is not prepared to infer that the alleged threats by and actions of her neighbours were real.

34. The Alleged Police Surveillance. The plaintiff also contends that her neighbour “controls the police” and that the neighbour has been given police protection, making it impossible for the plaintiff to be able to call on the police for help. The plaintiff has real concerns that she has no privacy in her home, because she believes that since 1995 police cameras have been installed throughout her house and are constantly watching her. The plaintiff said during the course of the proceedings:

“PLAINTIFF:   I’ve got no privacy in my house I’ve had police, what do you call it, cameras in my house since 1995 up until probably a few months ago. There’s not one room in my house that my next door neighbour hasn’t got cameras. I can’t even have a shower either upstairs or downstairs. I cannot go to bed and undress in my bedroom. I try to dress in the corridor. But I’ve learnt they have cameras there as well, in the kitchen, in the dining room, in the lounge room, downstairs. I thought oh well if they’ve got cameras up there. I know they’ve got have [sic] them because money I put in a packet that they brought back stolen previously I put it in the bathroom drawer and I thought as soon as I’ve got time I’ll count how much is still in it. Before I could do that it was stolen. I had documents downstairs I hid in the cupboard down in the laundry. They had gone. They can see me no matter where I am in my house.”

35. The plaintiff did not advance any credible reason why the police would wish to keep her under constant surveillance. None of her story really made much sense. There is no suggestion that the plaintiff has been involved in criminal conduct or that she is a danger to her neighbours. Quite the contrary. The plaintiff seems to be a generous person who is prepared to give property away and does not seem to be active in trying to cause trouble for others or in wishing to take things from them.

36. The plaintiff’s evidence on this subject is so irrational that I am not prepared to accept it at face value. If the plaintiff’s house was full of cameras as she described, it would have been possible for her to take photographs of the cameras or to bring samples of them into Court to tender them in evidence. But the plaintiff did not do that. In the absence of any corroborating evidence of this kind, this account of her being under police surveillance must be dismissed as a fantasy.

37. The Fallen Tree and the Alleged Police Assault. The plaintiff also spoke at length, on a number of occasions, about an alleged police assault upon her in 1995. She conveys a great sense of injustice about this alleged event. The plaintiff says that the assault occurred in the context of a tree which had fallen from her neighbours’ property onto her own property. She says that her neighbours failed to remove a large portion of the fallen tree from her property, despite removing the part that remained on their own property. The plaintiff says that she called the police (presumably to deal with this incident).

38. What the plaintiff alleges happened next is not entirely clear from the plaintiff’s submissions in Court. The plaintiff says that, around the time that the police arrived, a fence was being erected on her property rather than the property boundary line. The plaintiff did not want the fence to be put up on her property, so she stood with her foot either in or just beside the hole into which the fence posts were to be placed on what she says was her land. To restrain her, the plaintiff says the police sergeant who was present at the site backed up against her, pushing her backwards and away from the fencing contractor.

35. The plaintiff says she has recorded this incident on video tape. But the alleged video tape was not tendered in evidence. She says that thereafter, two other police officers came over and grabbed her by both arms to pull her back further. Despite telling the police officers that she was in pain (as a result of a back injury she suffered some years prior in a car accident), she says that they continued to restrain her. The plaintiff says that as a result of this, she was left with dark bruises. She says she has photographic evidence of her injuries. But none was tendered.

36. It is difficult to know where fact ends and fantasy begins in this account. It can be accepted that the plaintiff may have had a dispute with her neighbours about a fallen tree and the placement of a fence. It can probably also be accepted that the police were called and she was asked to stop obstructing some fence building works. But beyond those reasonably understandable events, a deliberate assault upon her by police, which is not corroborated by any objective evidence, cannot be inferred. In my view, this is another example of an event over which the plaintiff obsessively ruminates which may have some legitimate basis in fact but to which layers of invention have been added, so that to the outside observer it is difficult to know what is true and what is false.

37. Having outlined the background to the plaintiff’s application, I will now turn to Ms Sawtell’s and Professor Peisah’s evidence.

The Medical and Other Evidence

Affidavit of Ms Sawtell

42. On 3 August 2017, the Court ordered that the NSWTG file an updated affidavit as to the NSWTG’s financial management of the plaintiff’s estate. Ms Sawtell subsequently filed an affidavit on 10 August 2017, which stated, amongst other things: (1) that as at 31 July 2017, the NSWTG held the sum of $77,700.11 for the plaintiff; (2) from the monies held for the plaintiff, the NSWTG pays the plaintiff’s council rates, water rates, and insurance on the plaintiff’s property; (3) since 2004 the plaintiff has managed her own pension and paid her own expenses, excluding those referred to in (2) because failure to pay these liability may put at risk the security of the plaintiff’s home as a place of shelter for her; and (4) on 30 July 2013, approval was granted for the plaintiff to continue to manage her own pension and pay her own expenses, again, excluding those referred to in (2).

43. Ms Sawtell’s affidavit also deposes to ongoing disputes between the plaintiff and her local council in respect of her property. On 26 February 2016, the plaintiff’s local council filed a Summons in the LEC seeking compliance with earlier orders made in relation to the plaintiff’s property. Those earlier orders included (but were not confined to) orders for: (1) the engagement of a structural engineer to inspect the property’s front balcony, stairs and rear balcony; (2) the repair of the rear balcony; and (3) the provision of a certificate to the local council that the plaintiff’s house is compliant with the Building Code of Australia 2015.

44. The NSWTG engaged a structural engineer in March 2017 to attend the plaintiff’s property. But the plaintiff refused access. The obvious result of this is that the NSWTG has so far been unable to comply with the LEC orders. The LEC proceedings remain on foot at the time Ms Sawtell filed her affidavit. It is not known what further steps the local council will take in the LEC proceedings.

Professor Peisah’s Evidence

45. Upon an application advanced by the NSWTG, Lindsay J made orders on 12 December 2016 that Professor Peisah examine the plaintiff on 2 February 2017. Professor Peisah attended the NSWTG’s premises on that date. But the plaintiff did not.

46. Professor Peisah ultimately examined the plaintiff at the NSWTG’s premises on 22 March 2017 for just under two hours. Professor Peisah prepared a report dated 22 March 2017, based on that examination and the documents that were presented to her. Professor Peisah had been provided with a copy of Barrett J’s decision in P v R [2003] NSWSC 819; a proposal of the NSWTG of 9 December 2016; an email from Ms Sawtell to Professor Peisah on 21 March 2017; and particular NSWTG records that were shown to Professor Peisah on 22 March 2017. Professor Peisah gave oral evidence in the proceedings.

47. In her Report, Professor Peisah set out the plaintiff’s medical history. She noted that the plaintiff indicated she was in reasonable physical condition. She reported the following:

“[The plaintiff] told me she has been fairly physically well and the only physical problems she had were from wrong dealings with the Office of the Public Guardian. She has no regular GP although attends the local Gateway Clinic when she needed and her only medications were related to bladder control. In File Note of 18/6/2014 by CSA Mary Gibson Handover Notes to the NSWTG Intensive Team, it was noted that [the plaintiff] was well-known to local ACAT and to Manly and other regional hospitals where she had a number of admissions for physical rather than psychiatric treatment (NSWTG records). These physical problems were not outlined in any of the notes.”

48. Professor Peisah then set out the plaintiff’s psychiatric history against the backdrop of an earlier report prepared by a Dr Russell in 2002:

“As part of the numerous proceedings (outlined below) [the plaintiff] has been seen by at least ten mental health professionals (i.e. psychologists and psychiatrists) acting as experts for either herself or the defendants in proceedings she has initiated, particularly those for damages assessment following a car accident in 1979 in which the car she was driving was struck from behind while stationary at an intersection. (P v R [2003] NSWSC 819 at [2]). As part of those assessments, she has received a range of diagnoses including “anxiety”; “obsessive compulsive personality”; “schizophrenia”; “personality disorder subsequent upon the motor vehicle accident”, “personality disorder longstanding with schizotypal, schizoid and possibly also paranoid and histrionic traits”; “paranoid personality disorder”. (P v R [2003] NSWSC 819).

One formulation, which included assessment of cognitive, personality and psychotic aspects of mental state was referred to in the report of Dr Russell dated 9 August 2002:

On the basis of my own examination of [the plaintiff], which included a full psychiatric history, mental state examination and brief cognitive assessment, I was not able to find convincing evidence neither cross-sectionally nor longitudinally of a psychotic disorder (schizophrenia or delusional disorder). I think there is reasonable evidence, however, of significant personality characteristics, including a persecutory style and attitude, difficulty making and sustaining relationships, combativeness and abruptness. The protracted nature of the third party legal process has probably exacerbated her vulnerabilities and provided many opportunities for conflict. She makes many critical and disparaging comments about most of the legal professionals she has encountered over the years, considering them one or more of the following: incompetent, lazy, self-serving, negligent and in one case physically abusive. It seems highly unlikely to me that all of these allegations could be substantiated, but it is also important to say, whilst implausible, they are not impossible, and in psychiatric terms, would not necessarily be regarded as delusional. In addition to the above, [the plaintiff] also displayed some mild cognitive disturbance in terms of difficulty in concentrating at times and some lapses in clarity of expression. The basis of this is questionably, possibly related to psychological stress, but not of sufficient severity to compromise her decision-making ability. Indeed, her ability to organise and present material from the vast documentation, and her attention to detail, were quite impressive. (P v R [2003] NSWSC 819 at [52]).

During the 2003 hearing, it was noted by Barrett J, that [the plaintiff] saw the proceedings (P v R [2003] NSWSC 819) as the occasion for the truth of her various assertions (many of which were described by Barrett J, as “bizarre”) involving the police, the neighbour, the employee of the Crown Solicitor’s Office and the hospital (among others) to be tested. (P v R [2003] NSWSC 819) at [24].

In File Note of 18/6/2014 by NSWTG CSA Mary Gibson Hanover notes to the NSWTG Intensive Team, referred to an admission for psychiatric treatment to Manly Hospital in 2005, where [the plaintiff] had been taken to hospital by police, scheduled and remained in hospital for 10 weeks (NSWTG Records). [The plaintiff] confirmed this admission and stated that during that admissions she had an adverse reaction to 20mg of Olanzapine (an antipsychotic) administered to her, and that the hospital records had been changed in regards to the dose used. During the admission, the Trustee undertook a property inspection of her house which was subject to council notices (with a safety fence installed around the property because of the risk associated with the structural defects), prior action for which had been impossible as [the plaintiff] refused access. Her brother was made Guardian and she was discharged from hospital on 19th May 2005 on a CTO (NSWTG Records).

There was a subsequent admission in 2007 during which an application for a CTO was dismissed by the Magistrate because [the plaintiff] had coped without medication for 2 years (NSWTG records). [The plaintiff] confirmed this and noted that during that admission she was treated with Olanzapine 10mg.”

49. In assessing the plaintiff’s financial capacity, Professor Peisah turned to examine whether financial management is needed by, and in the best interests of, the plaintiff. In particular, Professor Peisah was concerned about the repairs ordered by the Council and the orders in the LEC proceedings, which repairs are yet to be effected. She was also concerned about the plaintiff’s continuing search for justice in the courts, despite the cost of those various proceedings to her.

“The evidence above suggests that despite a range of protective functions used for 15 years to support [the plaintiff] (e.g. Guardianship Orders, Management Orders, Mental Health Act Schedules and Community Treatment Orders) she continues to rail against and be distressed by any loss of autonomy, and indeed her disorder of mind renders her unable to co-operate with any service or support provider, and that even trials of supported decision making such as the use of Section 71 NSWTG Act 2009 have not relieved her distress. Despite all NSWTG efforts – dating back some 12 years – her house remains unrepaired and subject to Council and Land and Environment Orders and she remains at risk of losing it merely on this basis alone. On the other hand, she cannot terminate of her own accord the vexatious track and search for justice despite its emotional and financial cost to her. She also remains at risk of undue influence by virtue of her sense of alienation and inability to use and accept legal and financial advice. I do note that in protecting her against giving away her house, that as part of any financial management order that a caveat has been placed on [the plaintiff’s] house by NSWTG.”

50. Professor Peisah concluded that although the plaintiff has “a disorder of mind” plagued by “bizarre ideas and perceptions”, upon assessment she presented as well-kept and was engaging and cooperative and exhibiting some financial capacity, and there was no evidence that she suffered from a neurodegenerative disease.

“On assessment, she is extremely engaging and co-operative but has a disorder of mind manifested by encapsulated bizarre ideas and perceptions, but no evidence of a neurodegenerative disorder. She has some financial capacity with intact Basic Monetary skills, Financial Conceptual knowledge, Bank statement management and Knowledge of personal assets/estate arrangements.”

51. Despite this, Professor Peisah did query whether the plaintiff’s council rates, water rates, and home insurance would be paid were the NSWTG to be removed as manager of the plaintiff’s estate:

“Albeit many of her decisions in regard to Bill Paying are contaminated by her bizarre ideas, she appears to be coping and is well-kept and well-nourished, although I wonder what would happen if the NSWTG were removed and her Council and Water Rates and Insurance Fees weren’t paid by them. Having said this, sometimes people make eccentric and atypical choices such as those chosen by [the plaintiff], and even choose homelessness, with capacity, and even when capacity is in doubt or partial, can be afforded a dignity of risk to do so (Wand et al, 2015).”

52. One issue of particular concern to Professor Peisah was the plaintiff’s plan to give away her house to an organisation called ADRA. In fact, it became apparent in the course of Professor Peisah’s evidence that the NSWTG is so concerned about the risk of the plaintiff losing her house in this way or due to other unknown risks, that it has placed a caveat on the title. Professor Peisah said in the witness box that during her examination of the plaintiff, she asked about the plaintiff’s intention to gift her house. The plaintiff confirmed to her that the plaintiff did wish to gift her house to ADRA. Professor Peisah also stated that it was the plaintiff’s wish, once the house had been gifted, to remain living downstairs. Professor Peisah noted in her report that:

“… her decision to gift her house appears to be more of an ‘unwise’ decision than an incompetent one (the distinction being crucial), although I am uncertain as to what terms she would organise to protect her own interests, and I wonder if the Court would consider a temporary role for the NSWTG to supervise the gifting of the property to ensure her interests are secured, as one last trial of supported decision making.”

53. Professor Peisah suggested that should the protected estate management orders be revoked, that the NSWTG could assume a supervisory role in looking over the gifting of the house:

“WITNESS: Yes, or on the ground what my idea was that there would be some kind of ‑ it is a way of respecting and honouring the plaintiff's wishes to gift this entity and indeed if the church or someone took over they could actually ensure the repair of the property and the plaintiff could still retain ‑ she has this dream of living downstairs‑‑

PLAINTIFF: It is not a dream and it is not a fantasy. My money has been taken over by them and they have used it all, money that I should have got.”

54. Ultimately, the revocation or continuation of the protected estate management orders are not a straightforward or clear-cut choice in Professor Peisah’s eyes. Professor Peisah is conscious of the plaintiff’s distress at the prospect of having the orders continued. On the other hand, Professor Peisah is concerned that if the protected estate management orders are revoked, that the plaintiff may lose her house and may struggle financially given her “inability to… meet the normal requirements of society.”

Determination

55. The question for the Court now is whether the plaintiff has the capacity and ability to manage her financial affairs. It should be noted that the plaintiff’s strange obsessions and inventions alone do not warrant the dismissal of her application for revocation. They would only so justify if they in fact affect her capacity to manage her financial affairs in her own best interests.

56. At the moment, the plaintiff manages her own pension, and she uses that income to pay for her day‑to‑day expenses. However, taking into account the plaintiff’s repeated difficulties, as she puts it, with having documents stolen from her home, the Court has real concerns about whether the plaintiff has the capacity to pay her council rates, water rates and insurance on her property. In the Court’s view, it is quite likely that should the NSWTG no longer manage her estate and should the responsibility for paying those substantial and important liabilities fall to the plaintiff, that she would fall behind in those payments. The Court does not believe she could organise in her possession, in such a way that she could find them, any bills or invoices that arrive by mail either to her property or her Post Office Box. The Court is therefore of the view that for this reason alone, it is in the plaintiff’s best interests for the NSWTG to continue to manage this aspect of her financial affairs.

57. The Court is also concerned about the LEC orders in relation to the plaintiff’s property. The plaintiff has refused to cooperate with the execution of these orders. It is entirely possible that should the plaintiff fail to comply with or cooperate with these orders, that she may lose her house.

58. Leaving the plaintiff to deal with the LEC proceedings presents real risks to her. Her attitude towards the local council and to the proceedings is so hostile that she is unlikely ever to cooperate with the execution of the orders against her. If this conflict is allowed to continue unabated she may find herself facing a charge of contempt of court and for compulsory enforcing orders being made against her for the execution of works at her house. In the end, if she were to refuse to pay any costs orders made against her she risks losing her house.

59. As her conduct in Court of these proceedings shows, she would not have the capacity to manage litigation about her property. She had insufficient capacity to manage even this litigation in an orderly way. Whilst she can undoubtedly pay normal household bills out of her pension, managing something as complex as litigation about her own estate, in my view, would be quite beyond her. The NSWTG should stay in control of that aspect of her life.

60. The Court is also concerned about the multitude of legal proceedings that the plaintiff has brought, and continues to bring in her elusive search for justice. If the NSWTG is no longer in a position to manage the plaintiff’s estate the plaintiff may continue to initiate court proceedings without the NSWTG being able to discontinue them on her behalf. This risks her incurring massive legal costs that will deplete her estate and put her residence and financial security in danger.

61. It is not unlikely, given her past conduct, her existing grievances, her personality and sense of justice that the plaintiff will continue to bring legal proceedings against others. The NSWTG needs to be able to continue to manage her estate to take control of those proceedings, particularly if costs orders threaten to be made against her.

62. Professor Peisah suggested another possible approach. She said that it is clear that the plaintiff has had no relief from seeking justice through the courts for herself. An alternative to taking away control of her financial affairs may be for the Court to declare the plaintiff a vexatious litigant.

63. But in my view, that is not a feasible outcome of the plaintiff’s present application. Under the Vexatious Proceedings Act 2008 it would be necessary to establish that the plaintiff had brought a sufficient number of proceedings in order to warrant such an order. Although she is litigious, she may not reach the necessary threshold for orders to be made against her as a vexatious litigant. Moreover, the Court is not in a position to initiate such proceedings of its own motion. And even if such an order were made, it would only solve one part of the risks that the plaintiff faces in managing her whole financial affairs, without the support and assistance of the NSWTG.

64. Professor Peisah also told the Court that the plaintiff is in the “terrible position” of being incapable of running her own litigation, but also of being incapable of instructing a solicitor or being supported by a tutor. Revoking the protected estate management orders will, Professor Peisah thinks, not necessarily quell the plaintiff’s insatiable quest for justice in the court system. But neither will keeping them in place. It is most unfortunate that the plaintiff’s protracted legal proceedings have come at great cost to her, not just financially, but mentally, having caused her great distress and exhaustion.

55. The Court is also concerned about the possibility that the plaintiff may lose her house because of her expressed intentions to gift it to ADRA. I agree with Professor Peisah that her desire to carry through with the gift may not necessarily be an act of imprudence, but one backed by longstanding wishes and values informed by her significant involvement with the Seventh Day Adventist Church. The history that the Professor Peisah collected from the plaintiff indicated that since the plaintiff was a very young woman “she has prioritised altruism and benevolence” and “taking care of others over money”. In the course of the hearing it also became apparent that the plaintiff did not wish to wholly give her house away in a manner that would render her homeless. It is the plaintiff’s intention that she remain living in the house, even if becomes no longer hers:

“PLAINTIFF:   I am still living there. I have got downstairs. I have got two bedrooms and a section downstairs that I can turn into a little kitchenette for myself, laundry, et cetera. I have already got that downstairs. I am not walking out and saying "You run it". I want it run properly.”

66. Because of her natural generosity the plaintiff would be highly vulnerable to exploitation if the NSWTG were not managing her affairs. Her intentions to give her away her house are imprudent and also show she is incapable of managing her financial affairs.

67. Having regard to the material before the Court, I am not satisfied that the plaintiff is capable of managing her financial affairs, and that the existing protected estate management orders should continue. The NSWTG should continue as manager of her estate on the present terms.

68. The Court acknowledges the anxiety that this conclusion will cause the plaintiff, who is deeply distressed by her loss of control and autonomy to the NSWTG. But on this issue the Court cannot say more than the words of Barrett J in P v R [2003] NSWSC 819 (at [85]). They are as apt now as they were in 2003:

“The orders of the court will, I know, be the cause of anguish, anger and resentment on the defendant’s part. It is to be hoped that she may in time come to see them as a source of the support and assistance she so obviously needs.”

Conclusion

69. Upon finding that the plaintiff is incapable of managing her affairs, the Court makes the following orders and directions:

1. Dismiss the plaintiff’s application.

2. Declare that the plaintiff is incapable of managing her affairs.

3. Order that, unless and until set aside, the protected estate management orders made by Barrett J on 9 September 2003 in respect of the plaintiff (as varied) shall continue in operation.

4. Order that the NSW Trustee and Guardian continue as manager of the estate of the plaintiff under the order and direction of the Court.

5. Reserve the question of costs.

6. Order under the Court Suppression and Non-Publication Orders Act2010 that these proceedings be henceforth listed in the Court’s published lists, referring to the plaintiff only by the letters “GX” and not by her name.

7. Order that until further order these reasons may only be published to the parties and their legal advisers.

8. Adjourn these proceedings to Thursday, 11 October 2018 at 9.30am to deal with any issues of costs or publication of my reasons.

9. Order that the NSW Trustee and Guardian serve a copy of these orders and reasons for decision on the plaintiff by mailing them to her at her home address and her PO Box address by Friday, 10 August 2018.

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Amendments

11 October 2018 - Redactions made.

Decision last updated: 11 October 2018