In v Protective Commissioner (No 2)

[2003] NSWADT 238

CITATION:	IN v Protective Commissioner (No 2) [2003] NSWADT 238
DIVISION:	General Division
PARTIES:	APPLICANT IN RESPONDENT Protective Commissioner
FILE NUMBER:	033301
HEARING DATES:	30/10/03
SUBMISSIONS CLOSED:	10/30/2003
DATE OF DECISION:	11/04/2003
BEFORE:	Hennessy N - Magistrate (Acting President)
APPLICATION:	Protective Commissioner - powers as to property - Protected Estates Act - Protective Commissioner - powers as to property
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Protected Estates Act 1983
CASES CITED:	IN v Protective Commissioner [2003] NSWADT 236 P v R [2003] NSWSC 819
REPRESENTATION:	APPLICANT In person RESPONDENT C Phang, legal officer
ORDERS:	1 The decisions of the Protective Commissioner are affirmed

1 On 23 October 2003, the applicant (who I will refer to in these reasons as IN to protect her privacy) filed an application for review of two decisions made by the Protective Commissioner in his capacity as her tutor in District Court proceedings. The decisions are to refuse her request that WH Parsons & Associates, solicitors cease to act in the District Court proceedings and secondly, to refuse her request that certain medical reports not be served on the defendant in those proceedings. As the District Court proceedings are listed for hearing on 17 November 2003, this matter was listed for an expedited hearing following the Tribunal’s dismissal of a stay application on 27 October 2003. (IN v Protective Commissioner [2003] NSWADT 236.)

Background

2 IN sustained injuries in a motor vehicle accident in 1979. She claimed that she suffered physical injuries and had a personality disorder due to organic brain damage arising from the motor vehicle accident. Proceedings claiming damages for those injuries were commenced in the District Court in 1986 and on 6 August 1990 the District Court gave judgment on liability in her favour. The matter continued to be heard in 1991 in order to assess the quantum of damages to be awarded. The matter was stood over, part-heard, because of unexpected evidence from Dr McMurdo during the course of cross-examination that IN had a pre-existing latent personality disorder which had been aggravated (in a functional rather than organic way) by the motor vehicle accident. The respondent to the proceedings was not prepared to meet a case based on Dr McMurdo’s evidence.

3 In early 2000 IN approached counsel, Mr Kelvin Andrews, to act for her. He agreed to do so as long as Mr Parsons, solicitor of WH Parsons & Associates, was the instructing solicitor. WH Parsons & Associates accepted instructions in about February 2000. They are the fifth solicitors engaged by IN since the commencement of the District Court proceedings. IN says there were good reasons for her changing solicitors. Mr Parsons became concerned about IN’s ability to provide instructions which were in her best interests when she refused to agree that the medical reports of Dr Bell and Dr Lewin be served on the defendant. Those reports were obtained by WH Parsons & Associates and supported the view that there was a pre-existing personality disorder which was aggravated by the motor vehicle accident. IN objected to these reports being served because she did not agree that she had a pre-existing personality disorder and maintained that her disability arose from organic brain damage.

4 Ultimately Mr Parsons applied to the Protective Division of the Supreme Court for a Management Order so that he could obtain instructions which were in IN’s best interests. On 6 August 2001 the Supreme Court made an interim order appointing the Protective Commissioner as Receiver and Manager of IN’s estate for the purposes of conducting the District Court proceedings. Mr Parsons’ application for a final order was listed for hearing in April 2003. There is apparently no provision in the Protected Estates Act 1983 for final orders which are of limited effect or relate to specific aspects of a person’s affairs. Consequently Mr Parsons’ application became a general one under s 13 of the Protected Estates Act 1983 for a declaration that IN was incapable of managing her own affairs.

5 On 9 September 2003, the Supreme Court found that IN was incapable of managing her affairs, and ordered that the Protective Commissioner be appointed to manage her estate under the Protected Estates Act 1983: see P v R [2003] NSWSC 819.

6 According to Ms Phang, representing the Protective Commissioner, the current situation is that all the doctors who have examined IN, on behalf of both the plaintiff and the defendant, have expressed the view that she had a pre-existing personality disorder. The defendant’s doctors say that there was no change in her mental state as a result of the accident, while IN’s doctors say that her condition was exacerbated as a result of the accident. According to Ms Phang, only Dr Bell maintains in addition, that IN suffered brain damage as a result of the accident.

7 Senior and junior counsel for IN have provided advice to the Protective Commissioner that IN can make a case on the basis of the medical reports of Dr Bell, Dr Lewin and the opinion of Dr McMurdo, that there is a nexus between the accident and her current symptoms.

Legislative basis for review

8 In IN v Protective Commissioner [2003] NSWADT 236, the Tribunal decided that it had jurisdiction to entertain this application pursuant to s 28A of the Protected Estates Act 1983.

9 The Tribunal’s task, in accordance with s 63 of the Administrative Decisions Tribunal Act 1997 (ADT Act), is to determine whether the Protective Commissioner has made the “correct and preferable” decision on the basis of any relevant factual material and any applicable written or unwritten law.

Applicant’s submissions

10 The thrust of IN’s oral submissions was that Mr Parsons has not acted competently in the conduct of her case and that he has been deceptive. She gave several examples:

a. He sent copies of medical reports from Drs Adler, Bell and Machie, to the defendant without deleting comments IN had written on the copies of those reports.

b. He has not read the whole of the transcript of the proceedings of August 1990 and February 1991 before the District Court.

c. He has misplaced documentation provided by IN showing changes in the award rates for nurses since the date of the accident and he has not updated the estimate of her wage loss.

d. He has mistakenly provided alternative estimates in relation to wage loss based on employment as a teacher when she was not fully qualified as a teacher at the time of the accident.

e. He has acted deceptively by saying that IN has no relatives when she actually has nine siblings.

11 In relation to the second decision under review, IN said that the doctor’s reports in question are incorrect because she did not have a personality disorder prior to the accident. She also claimed that senior counsel appearing in her case has never told Mr Parsons to serve Dr Bell’s report.

Respondent’s submissions

12 The Protective Commissioner submitted that they had made the correct and preferable decisions because it was in IN’s best interests for those decisions to be made. The hearing is listed for 17 November 2003. New solicitors would almost certainly mean that that date would have to be vacated and further delays would be incurred. There has already been lengthy delays in bringing this matter on for hearing. Extra costs will be incurred if new solicitors are instructed.

13 According to Ms Phang, Mr Parsons has admitted that his office sent medical reports containing notations written by IN and he takes full responsibility for that matter. However he maintains that the notations do not harm her case. Ms Phang also said that Mr Parsons maintains that he has read the parts of the transcripts that he considers relevant.

14 The amended Statement of Particulars under Part 9 rule 27 of the District Court Rules 1973 has now been filed and served. Those particulars contain an updated assessment of IN’s wage loss.

15 In relation to the second decision, Ms Phang produced a letter from senior counsel who wrote to Mr Parsons on 24 January 2002 advising as follows:

The report of Dr Bell assists the presentation of [IN’s] case and should be served along with the report of Dr Lewin. Both reports identify a nexus between ongoing problems and the motor vehicle accident.
A copy of that letter was sent to IN on 31 January 2002.

16 In the Supreme Court proceedings (P v R [2003] NSWSC 819) Barrett J found at [56] that:

On the whole, the medical evidence leads me to a conclusion that the defendant is suffering from a clinical condition that affects adversely her ability to make rational decisions about where her own best interests lie. She is preoccupied with the various grievances to such an extent that they occupy centre stage in her life and absorb virtually all her energies.

17 Barrett J went on to find that IN was incapable of managing her affairs.

18 It is the Tribunal’s role to examine the Protective Commissioner’s decisions objectively and determine whether they are the correct and preferable decisions in all the circumstances. IN has major concerns about the manner in which her matter has been conducted. However I am satisfied that the matters labelled (a) to (d) at [10] have been acknowledged and/or addressed where necessary. IN remains dissatisfied, but it is difficult to know what Mr Parsons could now do to alleviate her concerns.

19 IN suggested that Mr Parsons had acted deceptively by representing that she has no siblings when she does have siblings. One of the issues in P v R [2003] NSWSC 819 was whether Mr Parsons took adequate steps to find some alternative person to bring the proceedings. Barrett J said, at [70]:

The plaintiff did not serve or otherwise notify any relative of the defendant. He said that he had not done so because the defendant had told him that he was on no account to contact any of her relatives to request for the purposes of the District Court case assistance with evidence about the defendant’s mental state before her accident. He assumed that the same prohibition would apply in the present proceedings because they too involved questions about mental impairment.

20 Barrett J concluded at [77] that:

I am of the opinion that, even if the plaintiff had taken steps to seek out the siblings and to ascertain whether any of them might have been an alternative person to bring the proceedings, he would not have succeeded in finding any suitable substitute applicant.

21 The allegation that Mr Parsons acted deceptively is not supported by any evidence that IN was able to draw to the Tribunal’s attention.

22 If IN changes solicitors, the case will be further delayed and extra costs will be incurred. It is now 24 years since the accident. The matter needs to be finalised as soon as possible.

23 The medical reports are opinions of experts who have examined IN. The fact that her opinion differs from theirs is not sufficient reason to exclude them from evidence. If the medical reports are not served, IN will have no, or very little, basis for claiming damages for anything other than the physical injuries which she suffered in the accident. The amount she may be entitled to receive will be significantly reduced.

24 In all the circumstances the two decisions under review are in IN’s best interests and are affirmed.

25 IN wrote to the Tribunal on 3 November 2004 requesting that this decision not be handed down until she had received a response to a letter she had written to the Protective Commissioner. I declined that request as the hearing had been completed and the decision reserved. IN did not provide any persuasive reason for the matter to be re-opened.