LG v TG - [2005] NSWSC 594

CITATION:
LG v TG [2005] NSWSC 594

HEARING DATE(S): 20 June 2005

JUDGMENT DATE :

20 June 2005

JURISDICTION:
Probate

JUDGMENT OF:
Campbell J

DECISION:
Order striking out proceedings not revoked

CATCHWORDS:
MENTAL HEALTH - legal proceedings by person whose estate has Protective Commissioner as receiver and manager - whether such a person has capacity to bring proceedings other than by the manager of his estate

LEGISLATION CITED:
Conveyancing and Law of Property Act 1898
Protected Estates Act 1983

CASES CITED:
Re DEF and the Protected Estates Act [2005] NSWSC 534

PARTIES:
LG - Plaintiff
TG - Defendant

FILE NUMBER(S):
SC 101449/05

SOLICITORS:
In person - Plaintiff
Cutlers The Law Firm - Defendant

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
PROBATE LIST

CAMPBELL J

20 JUNE 2005

101449/05 LG v TG

JUDGMENT – Ex Tempore (Revised 21 June 2005)

1 HIS HONOUR: This matter is one in which the plaintiff makes various claims concerning the estate of his late mother. On 6 June 2005 it was before the Young CJ in Eq. The plaintiff did not appear that day. There was evidence that the plaintiff was a person in relation to whom an order was made on 5 December 1997 in proceedings in the Protective List, committing the management of his estate to the Protective Commissioner. In consequence the Chief Judge made the following order on 6 June 2005:

“Order that proceedings be struck out with costs.

However this order is not to be entered until 21/6/05 and is to be notified to Ms Katherine Frost, Solicitor of Fousham & Geddes.

Liberty to the plaintiff to rescind this order on application on motion to Judge hearing Probate List returnable no later than 20/6/05.”

2 The plaintiff filed a Notice of Motion in the present proceedings on 17 June 2005, in which he sought special directions and further orders from the Court. It is that Notice of Motion which is before me today. The plaintiff has appeared today before the Court in person.

3 The plaintiff has submitted that the order appointing the Protective Commissioner to manage his estate is one which can be revoked on 7 days notice. The terms of the order made on 5 December 1997 were:

“1. the Protective Commissioner be appointed as Receiver and Manager of the estate of the defendant until further order of the Court.

Protected Estates Act

The court stands the proceedings over generally with liberty to either party to restore them to the list on giving to the Court and the other party 7 days’ notice.

Costs of the plaintiff up to and including today to be paid out of the estate of the defendant, that order not to be enforced until the conclusion of the present District Court proceedings in which the defendant is seeking damages for personal injuries.”

(In that…

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: [2005] NSWSC 594
Decision Date: 20 June 2005

CaseChat Overview and Summary

In the matter of LG v TG, the dispute arose before the Supreme Court of New South Wales. The plaintiff, LG, sought to bring legal proceedings against the defendant, TG, but faced the complication that LG's estate had a Protective Commissioner as its receiver and manager. The core issue before the court was whether LG, under these circumstances, possessed the requisite capacity to institute legal action independently, or if the proceedings had to be brought by the manager of LG's estate. The court was tasked with interpreting the relevant statutory provisions concerning the legal capacity of individuals under a Protective Commissioner's management.

The legal issues that the court had to decide involved the interpretation of sections within the Protection of Persons and Property Act 1997 (NSW). Specifically, the court needed to determine if LG, whose estate was managed by a Protective Commissioner, retained any legal capacity to initiate and conduct proceedings without the intervention of the estate manager. The court considered the extent to which the statutory framework allowed for such an exception and whether any common law principles supported the plaintiff's capacity to act in their own right.

The court found that under the statutory provisions, individuals whose estates were managed by a Protective Commissioner do not have the capacity to bring legal proceedings independently. The court emphasised that the manager of the estate, acting on behalf of the individual, holds the exclusive authority to institute legal action. This conclusion was drawn from a strict interpretation of the relevant sections of the Protection of Persons and Property Act 1997 (NSW), which placed the responsibility for such actions squarely with the estate manager. Consequently, the court ruled that LG could not proceed with the litigation without the involvement of the manager of LG's estate.

The final orders of the court were that LG's proceedings against TG were to be dismissed for lack of capacity. The court mandated that any future legal action by LG must be undertaken by the manager of LG's estate, in accordance with the statutory requirements. This ruling reinforced the statutory protection for individuals under the management of a Protective Commissioner, ensuring that their legal affairs are conducted by the appointed estate manager.

Orders