Max Elio Naso by his next friend Sabatino Naso v Cottrell
[2001] WADC 7
•25 JANUARY 2001
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: MAX ELIO NASO by his next friend SABATINO NASO & ANOR -v- COTTRELL [2001] WADC 7
CORAM: NISBET DCJ
HEARD: 5-6 DECEMBER 2000
DELIVERED : 25 JANUARY 2001
FILE NO/S: CIV 7558 of 1988
BETWEEN: MAX ELIO NASO by his next friend SABATINO NASO
First Plaintiff (Applicant)
SABATINO NASO
Second PlaintiffAND
FREDERICK COTTRELL
DefendantPERPETUAL TRUSTEES (WA) LTD
Trustee (Respondent)
Catchwords:
Trusts - Court appointed trust for plaintiff of significant award of damages - Application by plaintiff beneficiary to vary court order to vest trust in himself - Capacity to manage own affairs
Legislation:
Nil
Result:
Application fails
Representation:
Counsel:
First Plaintiff (Applicant) : Mr M J McCusker QC
Second Plaintiff : No appearance
Defendant: No appearance
Trustee (Respondent) : Mr D M Bruns
Solicitors:
First Plaintiff (Applicant) : Brickhill & Banaszak
Second Plaintiff : No appearance
Defendant: No appearance
Trustee (Respondent) : Hoffmans
Case(s) referred to in judgment(s):
De Manneville (1804) 10 Ves 52
Letterstedt v Broers (1884) 9 AC 371 (PC)
Naso & Anor v Cottrell [1999] WADC 63
Newton v The Public Trustee [2000] WASC 118
Perpetual Trustees (WA) Ltd v Naso (1999) 21 WAR 191
Re Eve (1986) 31 DLR (4th) 1
Re Fitzgerald (1805) 2 Sch. & Lef 432
Re The Trusts of Jane Poole, a Person Deaf, Dumb and Blind (1852) 5 De G & SM 469
Saunders v Vautier (1841) 4 Beav. 115; 49 ER 282
Case(s) also cited:
Hearle v Greenbank & Andrew (1749) 3 Atk 695
Jones v Moylan (1997) 18 WAR 492
Jones v Moylan [2000] WASCA 361
Pownall v Conlan Management Pty Ltd (1995) 12 WAR 370
R v Gyngall [1893] 2 QB 232
Re Biddulph (1852) 64 ER 1202
Thomasset v Thommaset [1894] P.295
Wellesley v Duke of Beaufort (1827) 38 ER 236
Wood v Public Trustee (1995) 14 WAR 251
NISBET DCJ:
History
The plaintiff was born on 10 August 1978. When he was 8 years old, on 21 March 1987, he was struck down by a drunk driver, the defendant, and sustained severe multiple injuries rendering him permanently quadriplegic with a significantly impaired respiratory function. He is now profoundly disabled requiring around the clock nursing care.
By the original action commenced in 1988 the plaintiff claimed damages for the horrendous injuries he has sustained at the hands of the defendant. His trial commenced in July of 1995 and following 28 days of hearing was adjourned sine die.
By an undated application by summons to chambers the plaintiff sought leave to compromise his claim as an infant pursuant to the provision of O 70 r 10 which summons came on for hearing before the trial Judge on 29 March 1996. The application was supported by an affidavit of the second plaintiff as guardian ad litem supporting the application for compromise and exhibiting the opinion of Mr E M Heenan QC and Mr R K Genders. Following a hearing before his Honour Judge Barlow the proposed compromise was approved and an order of that date was issued by the court containing the following provision:
"5.The defendant do forthwith pay the balance of $5,750,000 after deduction of any amount due to the Department of Social Security pursuant to the provisions of paragraph 3 and deduction of the sum referred to in paragraph 4 of this Order to Perpetual Trustees (WA) Limited ('the Trustee') to be held by it on trust for the first plaintiff until further order with the Trustee to have all the powers of investment and otherwise conferred by the Trustees Act (1962 as amended) (sic) including the power to make advances out of income or capital for the welfare, education or advancement of the first plaintiff."
On 16 September 1998 the plaintiff wrote to his trustee purporting to terminate the trust and directing that the trust assets be vested in him and paid at his direction. In doing this the plaintiff purported to act pursuant to the rule in Saunders v Vautier (1841) 4 Beav. 115; 49 ER 282. The trustee declined to comply with the plaintiff's request and questioned whether or not it was open to him to terminate his trust. In consequence the plaintiff commenced proceedings in the Supreme Court by way of originating summons dated 27 October 1998 by which he sought a declaration that the trust constituted by the order of this Court was at an end. During the course of those proceedings the trustee applied for an order from the Master of the Supreme Court that the plaintiff undergo medical assessment including a psychiatric assessment. This was resisted by the plaintiff who took offence at the questioning of his mental capacity and ultimately that application by the trustee failed. This caused the trustee to apply to the Full Court by way of appeal for a further order. The result of that application is reported as Perpetual Trustees (WA) Ltd v Naso (1999) 21 WAR 191. The Full Court allowed the appeal, set aside part of the order of the Master and in lieu ordered that the trustee have leave to require the plaintiff to undergo medical examination including psychiatric assessment pursuant to O 28 r 1. As it transpired during the course of the argument that the Supreme Court's power to vary an order of this Court upon an application in respect of an order said to be "until further order" was called into question, the Full Court in effect directed that any application in respect of the variation of the trust created by this Court's order should be first heard and determined in this Court and accordingly ordered a stay of the proceedings on the originating summons in the Supreme Court until further order. That order was made 23 June 1999.
Following that order the trustee applied by summons to chambers dated 2 July 1999 for directions in and concerning the administration of the trust and in particular in relation to the acquisition of land and the construction of a suitable house for the plaintiff which application culminated in my judgment delivered 8 September 1999 (Naso & Anor v Cottrell [1999] WADC 63) and my order of 30 September 1999 giving effect to that judgment.
Further, by summons to chambers dated 2 August 2000 the plaintiff applied for the following orders:
"1.The Max Elio Naso Trust be terminated forthwith and the trust fund administered by Perpetual Trustees (WA) Ltd vest in Max Elio Naso.
2.Max Elio Naso be granted leave to give viva voce evidence at the hearing of the application.
3.The costs of this application be paid by Perpetual Trustees (WA) Ltd."
That application was supported by an affidavit of the plaintiff sworn 31 July 2000, an affidavit of a psychiatrist, Dr Peter Walter Burvill, sworn 31 July 2000, an affidavit of the plaintiff's mother sworn 31 July 2000 and an affidavit of his father likewise sworn 31 July 2000. Pursuant to an order of Judge Fenbury made 11 August 2000 the plaintiff brought in an amended summons to chambers which set out the grounds upon which his application was brought before the court. They are as follows:
"(a)Max Elio Naso is sui juris and desires to terminate the Max Naso Trust. There is no reason why he should not manage his own affairs;
(b)Max Elio Naso has no need for Perpetual Trustees (WA) Ltd to be involved in the administration of his affairs and its continued involvement is causing both unnecessary cost and inconvenience to Max Naso;
(c)Max Elio Naso has no trust or confidence in Perpetual Trustees (WA) Ltd;
(d)Perpetual Trustees (WA) Ltd has failed properly to account for its fees and charges as trustee when requested and should not continue as trustee;
(e)Perpetual Trustees (WA) Ltd has failed to scrutinise expenditure of the trust, principally expenditure concerning nursing care."
Each of the parties thereupon took out a summons for directions for the hearing of the matter, the trustee by summons dated 15 September 2000 and the plaintiff by summons dated 22 September 2000. The plaintiff, notwithstanding that he had not complied with some previous directions made by the court had obtained a listing of his application by way of a special appointment prematurely and, as I was the judge appointed to case manage the various applications in this matter, its long and complex history requiring if at all possible that in the interests of efficient management of the court's business only one judge should be required to master the papers, I vacated the special appointment, brought forward the trustee's application and arranged for both the plaintiff's and trustee's summons for directions to be heard together before me in chambers on 27 September 2000. In the trustee's summons, the trustee sought directions as to whether or not it should defend the plaintiff's application and appear at the hearing. Further, it sought to strike out grounds (b) to (e) of the plaintiff's amended application. The plaintiff's summons sought to reinstate the special appointment date that I had vacated. On the trustee's application I ordered that it be at liberty to defend the plaintiff's application of 2 August 2000 as if it were a party but refused its application to strike out grounds (b) to (e) of the application. In this regard I should record that whilst I had great difficulty in seeing the relevance of those grounds to an application where the principal relief sought was for an order that the trust vest in the beneficiary, the plaintiff's solicitor was anxious to be given the opportunity to advance argument supported by authority at the hearing of the matter to establish that these grounds were relevant to the application for principal relief. On the plaintiff's summons I refused to reinstate the special appointment and directed instead that the application be listed for hearing in open court with an estimated duration of two days. I further directed that the matter be heard before me and I then made arrangements for the parties to provide their available dates and had the matter listed for 5 and 6 December 2000. Other consequential orders were made in relation to the exchange of affidavits and the like. I should mention too that the reason I adjourned the matter into open court was that the plaintiff was anxious to have his evidence taken viva voce and it seemed to me that in an action such as this, it was appropriate to have the proceedings take place in open court.
When the hearing commenced on 5 December 2000 the plaintiff moved to further amend his summons to add a new claim for relief as follows:
"3.Alternatively, Perpetual Trustees (WA) Ltd be replaced by a new trustee acceptable to the Honourable Court and Max Elio Naso."
The application for leave to amend was opposed by the trustee on the basis that the notice of the intention to amend was inadequate and, having regard to my previously expressed views about the relevance of grounds (b) to (e) of the plaintiff's amended summons, the trustee, in effect, had only made a token answer to the plaintiff's complaints in its affidavit material and that if it had been faced with an application to substitute it with another trustee then its affidavit in answer would have been much fuller. For my part I had difficulty in dealing with the amendment when there was no identification in the affidavit material or otherwise of who it was being suggested should be the new trustee and in the end result I determined that the matter should be dealt with by giving the plaintiff leave to re‑amend his summons in the terms of the summons dated 1 December 2000 but to adjourn the claim for relief sought in the new par 3 for further directions following the disposal of the claim for relief sought in par 1 of the summons, a course in which both parties concurred.
The hearing of the application
Mr M J McCusker QC opened the case for the plaintiff on the basis that there being no evidence that the plaintiff was afflicted by any mental incapacity by reason of mental illness, defect or infirmity and, being of full age then, notwithstanding his severe physical disabilities he was entitled to call for the court trust to vest in him absolutely. After canvassing the evidence the plaintiff intended to call in support of the proposition that he had full mental capacity and sufficient physical capacity to manage his own affairs the plaintiff called Dr Peter Walter Burvill, former head of the University of Western Australia's Department of Psychiatry and Behavioural Science but recently in private practice. Dr Burvill had examined the plaintiff on three occasions before composing his report of 12 April 2000 exhibited to his affidavit sworn 31 July. Dr Burvill, after verifying his affidavit confirmed that he still held the opinions he expressed in his report exhibited to the affidavit which report is dated 12 April 2000. The report, after discussing the extent and nature of the enquiries made by Dr Burvill goes on to express his conclusions as follows:
"1.Mr Max Naso does have the capacity to make his own decisions when relevant.
2.He has a reasonably good knowledge of the issues involved in the management of his affairs, of the desire of the family to build a purpose built house to more adequately care for his general care and medical needs, and the problems encountered with the Perpetual Trustee over this matter.
3.He has the capacity to look after his own affairs, which includes the fact that he is fully aware of the necessity to obtain professional financial advice from a financial adviser, regarding the investment and disposition of his compensation money.
Although he is necessarily dependent upon his family for a wide range of his care, he has the capacity to understand the issues involved, make decisions on those issues, and where relevant to be very stubborn and determined to have his own way with certain matters.
4.His family are obviously very devoted towards his care, and place much personal effort towards ensuring maximum care, often to their own discomfort and impairment of their quality of life. In this, his medical needs are dominant.
I am not in a position to make a judgement about their views of the handling of his affairs to date by the Perpetual Trustees.
5.I did not conduct any form of psychological testing of Mr Naso, or attempt to formally assess his level of intelligence. It did not appear relevant, as his performance at school, and at the computer course thereafter, and his responses to my questions, made such a form of assessment unnecessary. Although he is very disabled physically, there is no reason to suggest that he has any intellectual impairment.
6.There is no evidence that he has any formal psychiatric illness."
Regrettably, however, Dr Burvill had not been adequately briefed on the legal purpose for which his advice on the plaintiff's mental capacity was being sought. He was not aware until he gave evidence that the effect of the plaintiff's application, if successful, would be to give the plaintiff complete and unfettered control over his trust estate. The transcript reveals the following exchanges between counsel and Dr Burvill and myself and Dr Burvill:
"At the moment, I think, its common ground that there is a rather complicated nursing arrangement where there are nurses hired for some hours of the day and the mother and father undertake nursing duties for other hours of the day. If Max was running his own affairs how would you see the process of negotiating with his parents as to the rate they should be paid for nursing care?---I don't fully understand what that question is asking.
I think the proposition is at the moment the parents are being paid for nursing Max on an hourly basis. That hourly basis, one can assume, would have to be reviewed from time to time. Perhaps new arrangements would have to be made regarding hours or rate per hour. Would you see any difficulties in Max negotiating with his parents over how much they should be paid for nursing him?---Well, I think it would be - he would be put in a very difficult position, I should imagine anybody in that particular position, but would he have to negotiate with his parents or would the trustee or whoever is looking after his affairs do that negotiation? (My emphasis.)
Well, at the moment - I hope I'm not giving evidence from the bar table - the Trustee handles all such matters, but the issue we are debating today is whether those such matters should be given instead to the care of Max?---The debating about that sort of detail?
Do I take it you would have doubts about that?---Well, its not a question I'd addressed until I'd just been asked then, in that sort of detail. He would then - you're envisaging a dispute between himself and the parents about whether they should or shouldn't. I would have thought that - I'd just assumed that some trustee who was looking after the money would come to that as a third person. (My emphasis.)
You think such a third person would be desirable?---Well, the whole context in which I saw Max and which he made clear to me, and his father made clear in their interview with Dr Skerritt, was that there would be some other advice other than the Perpetual Trustees in the background, people with whom they have much more faith and confidence, etc, and that was always assumed.
If I can just pin you down on the first point. You believe that it would be appropriate to have a third person in the background to do those sorts of things?---I thought it was wise, yes."
I then posed some questions to Dr Burvill which further revealed that he had not been properly briefed as to the true nature of the plaintiff's claim:
"Professor, what sort of position do you think Mr Max Naso would be in firstly if the going rate for nursing care was, say, $20 an hour but his parents for one reason or another, one or either of them, thought that because they were on site, in situ, with the special relationship and the background knowledge they had, they were deserving of $30 an hour?---Max is in the case where he is in charge of his own money. There's no third person in the background and his parents were insisting on $30 an hour when he had received information on the Internet that the going rate was $20 an hour. How would he cope with such a conflict in your opinion?---I think not only Max but I would have thought any person in that position with a family in that position would be in rather an invidious position and that's why I never really envisaged that type of conflict occurring.
No, but that's one of the practical sequelae of what this application is about, that is, that Mr Max Naso wants to be able to in effect write the cheques?---That I did not fully appreciate, to put it as boldly as that, because I had always assumed that this was in the context of a - that it was some form of trustee and it was also some form of - or financial advisers - what the hell (sic, help) the money should be invested, etc, to that."
And the discussion continued in similar vein. In the end result in my opinion the effect of Dr Burvill's testimony was that his opinion as to the plaintiff's capacity to manage his own affairs was formed against a background where he had assumed, alternatively been assured by the plaintiff's father and also by the plaintiff himself that for all practical purposes day to day management of his financial affairs would be handed over to someone else.
The plaintiff was then called to give evidence. Without doubt he is profoundly disabled. Those unfamiliar with the history of this litigation may not appreciate that the plaintiff's award was the largest award of damages in the State when the compromise reached between the parties was approved by this Court. It was one of the largest awards of damages ever made in Australia when the sum of $2,073,170.80 representing moneys paid by the defendant for and on behalf of the plaintiff up to the date of the compromise are added to the award made following the approval of the compromise. He could not survive without 24 hour a day care. He gave his evidence from a wheelchair especially set up for his use. Every word of his evidence was an effort. In order to speak he forms words with each exhalation for the assistance of which he requires a ventilator. This process is observably very tiring for him. Undoubtedly he presently faces his physical difficulties with considerable fortitude. Asked by Mr McCusker QC what it meant if the trust was removed he replied:
"It means that, um, with the trust being removed that the money or the settlement will be given onto my hands which I would be able to do with it what I please."
Asked then what he intended to do with the money if it came into his hands he said he would put it into the hands of "the um firm of ANZ". And then asked for what purpose he would hand it over to the ANZ he replied: "Basically for the investment purposes."
In my opinion the plaintiff did not exhibit a reasonable grasp of his affairs. In my opinion he struggled with what I would regard as being fairly basic concepts such as when he was asked why he chose his solicitor, Mr Brickhill and a Mr Dunne to be his trustees in the place of Perpetual Trustees and he was unable to answer. He was not even able to recall who Mr Dunne was or what he did for a living. After the luncheon adjournment and in re‑examination when asked by Mr McCusker QC if he knew what Mr Dunne's occupation was the plaintiff replied: "Um, as far as - I'm not entirely sure but I think he was an accountant." Otherwise I formed the distinct impression that the plaintiff was unable to distinguish between Mr Brickhill his solicitor and Mr Brickhill as a trustee to be put in charge of his affairs in place of Perpetual Trustees (WA) Ltd in accordance with the letter written by Messrs Brickhill and Hanbury to Perpetual Trustees (WA) Ltd on 30 June 1998 which became exhibit 1 in these proceedings.
Another aspect of the plaintiff's evidence which caused me grave concern was that concerning the trustee's acquisition from his parents of the vacant land in Duncraig and the lack of progress towards the construction of a house on that land specifically designed to meet the plaintiff's needs. As is plain enough from its face, in my judgment advising the trustee to acquire the Duncraig land from the plaintiff's parents at a price not exceeding $227,500, I was advising with great reluctance. It seemed to me that the plaintiff and his parents had put the trustee in an impossible position. It was being asked to make an unwise investment against its better judgment. When this issue was raised in evidence before me the plaintiff's evidence confirmed the suspicions that I held as expressed in par 7 of my judgment at [1999] WADC 63. The plaintiff was asked whether his parents were under pressure because of debts on the land:
"They were, um, under pressure of the debt because of the, um, they didn't have enough money to pay the debts due to, um, what they were going to do when they went to buy the land, um, the amount they were going to get, um, through the, um, previous courts of conditions from these previous services would have paid the expenditure. (sic)
Yes. I think I - yes, I think I understand most of that, but the question is, they were under financial pressure, weren't they?---That's correct.
You are their only source of income now, aren't you?---That's correct.
So did you feel an obligation to help them?---That was, um, um, in what way do you mean?
Was your decision to buy the block because that way you would be helping your parents?---No. The, um, decision to buy that block was what, um, is something we discussed and um, we ‑ I bought it because it would have been - it would be easier in the long run for me to buy the block rather than have the ‑ them the initial owners. (sic)
…
Did you understand that there was a danger that they would lose the block altogether unless you bought it?---That's correct. That's correct."
At the time that that application was before me the plaintiff was proposing to have constructed on the land a house at a cost of something in the order of $637,000. My advice to the trustee was to obtain quotations for architectural services in respect of the construction of a dwelling at a cost of no more than $500,000. By my directions the trustee was to obtain quotations for design and contract administration for the construction of a house with an estimated construction cost of that sum from each of Mr J Christopher Keen and Mr Ron Boshart both of whom are architects with established reputations for design and construction management for the disabled. Mr Keen had originally been approached by the trustee and, notwithstanding his well known and accepted, established reputation for design and construction management for the disabled he was rejected out of hand by the plaintiff for what I regard to be quite unacceptable reasons. As an aside, the affidavit material in which the plaintiff criticises Mr Keen's drawings to me speak more of petulance than appropriate consideration and even if I am wrong on that score, they demonstrate the complete unwillingness of the plaintiff to negotiate upon matters such as this although, as I shall come to directly, I think it more a case of the plaintiff's father's desire to exercise control. In consequence of what the plaintiff saw as the inadequacies of Mr Keen he stipulated that he wanted to engage the services of Mr Ron Boshart. As it transpired, however, when Mr Boshart gave an indication of what his fees were (and I was never told anything more about it than this) the plaintiff thought that they were too high and for that reason and other reasons which were never properly explained, the plaintiff in effect refused to permit the trustee to progress further with the design and construction of his new house. If any further example of the plaintiff's attitude in this regard was required it comes from his cross‑examination when he was asked whether he had compared Mr Keen's costs with those of Mr Boshart's and he replied, "I did not" and further that as far as he understood no-one in his family had made such a comparison (T170).
The next matter of concern I have about the plaintiff's capacity to manage his own affairs is that in his affidavit sworn 31 July 2000 at par 36 the plaintiff deposed:
"… I have no confidence in Mr Keen because a proposal he put forward for my purpose‑built home was manifestly inadequate for my needs. I had proposed that Ron Boschart [sic Boshart] be the architect of my purpose‑built home but have since discovered that his fees are too high. I intend overseeing the construction of my purpose‑built home myself."
Bearing in mind the land acquired by the trustee at the plaintiff's insistence for the construction site for his new home is a fairly steeply sloping block, the plaintiff was cross‑examined about how he could possibly oversee the construction of his home. The following exchange took place:
"Is it your understanding that they would have to actually check to see if the house is being built according to the plans?---They'd have to go onto the site and look at the building and see if it was being done correctly. Would you be able to do that yourself?---I would. I would be a pretty good candidate for that job.
The site we're talking about is, as I understand it, a sloping block. Is that right?---That's correct.
Can you get on to that block yourself unaided?---As, as I am aware, as I'm, I'm - as I'm aware of, I am able to get on the block successfully unaided.
How many storeys is the house going to have?---From memory, it was a two storey house.
Doesn't it in fact have about four levels?---It has - it is a two storey house but it has got within the two storeys it does form split levels.
The proposition I'm putting to you is surely you couldn't without help, supervise the construction of that house while it was being built. You would have to get someone else to help you, wouldn't you?---Why would that be the case?
I would have thought you would have difficulty - wouldn't you have difficulty in a wheelchair climbing up to the second storey before lifts and other things had been installed?---That would be a problem but I think my - I think my family and I would be able to work around it.
Okay. Well, could it be that when you say, 'I intend overseeing the construction,' you mean your family and you will oversee the construction?---That's correct."
Now it is patently obvious to everybody who knows the history of this matter that the plaintiff has no education, qualification, training or experience such as would enable him to oversee the construction of a house of any type, even one of the most basic construction let alone a house such as is envisaged for him. In my opinion the plaintiff's testimony in this regard is highly indicative of him lacking any insight into his incapacity to manage his own affairs or, more likely, him being unduly influenced by his father whose cross‑examination in respect of the house showed that it is he who thinks that he can oversee the construction of this house which he claims he designed. Further, that cross‑examination shows that it was him who had the principal objection to Mr Keen's design:
"Mr Boshart's design is my design. Mr Keen's design I not even contemplate on it and it should be he that design. He only adopted that design from one of the common builders. He took it there, he made some changes and those changes are horrible. It doesn't give permission to Max to enter not even in his room." (sic)
And as to the true source of the plaintiff's rejection of Mr Boshart and his proposal to supervise the construction of his new house himself one only has to look at the cross‑examination of his father at transcript 206:
"Is Mr Boshart's proposal acceptable?---The only plan that he has got is mine. That is my design. …
…
His proposal is not acceptable?---No, because its too high.
Okay. Where do you go from here then?---We got a design, we contact some builders, proper builders who are available and willing to do it, and among these I got Classic Home. The person who's in charge of that is also the designer of houses. So we only pay him as the contractor but at the same time he can suggest, if there are any problems with it and he can work on that as a cost plus which means - and he said it many times - he said, 'I only do it for you and for Max' because normally because I don't know the cost what is going to be in 12 months I have to pay 7 percentage on top of what I know that the thing cost and that's with every builder. But by doing it the other way, whatever it cost, that's what you're going to pay anyway without putting any amount on top of it." (sic)
Reverting to the plaintiff's evidence, it became even clearer in re‑examination that the only idea he has about the construction of his house is the idea he gets from his father:
"How would you go about having the house constructed? Who would see that it was done properly?---Um - - - (Here there was a pause where the plaintiff indicated lack of comprehension.)
Perhaps I could put it this way: Would you intend to engage an architect at all or would you just have a builder?---Its highly ‑ not, um, from what I'm aware of I think the, um - I think all we'll have and from what I'm aware of is that we'd only have a builder and that's about it."
The next matter of concern to me which indicated again the plaintiff's incapability of managing his own affairs was his evidence about the effect on his trust estate of his insistence upon the Trustee purchasing his parents' land in Duncraig for the sum of $227,500 and building a house on it at a cost of $637,000. The plaintiff was asked if he appreciated that it would have been cheaper to get another level block of land for the construction of his home which would have been a cheaper solution both in the purchase of the land itself and the construction of the house. He answered:
"I do, but if you can understand ‑ is that my parents purchased that block before my accident and when they asked me if, um, they had to sell the block or keep it, um, I said to them I would rather keep it, um, I would rather keep it and live comfortably in that block than any other."
Then, asked about the wisdom of spending so much of his settlement in this fashion the plaintiff said that he had discussed it with his family "and I arrived to an answer myself" that in the long run "we'll be better off because the home will increase in value."
Tested about the source of his opinion of the increase in value it was evident that the plaintiff had made no independent assessment of this from any source that he could identify and I gained the distinct impression that he was simply regurgitating an answer provided to him by others.
Having watched the plaintiff very carefully and, having read his affidavits and looked carefully at their structure and content I am of the opinion that the plaintiff has been manipulated by his father. It seems to me that the father expresses a view about a matter, the plaintiff picks it up and adopts it as his own without subjecting his father's opinions to any critical analysis whatsoever. This is largely in my opinion because the plaintiff is unable to critically analyse his father's opinions because of the circumstances in which he finds himself. It may well be that for the very limited purpose for which I find that Dr Burvill expressed his opinion about the plaintiff's mental capacity, that the plaintiff does not suffer from any recognisable psychiatric illness or condition nor any mental defect. But in my opinion he nevertheless lacks the capacity to manage his own affairs. This is a combination of a highly restricted life experience, lack of appropriate education, underdeveloped intellect, a socially deprived existence and a complete physical and emotional dependence upon his parents.
Turning now to look at some of the other evidence, the plaintiff's mother was called to give evidence. Having verified the contents of her affidavit sworn 31 July 2000 Mrs Naso was asked her reaction to the hypothetical question I posed to Dr Burvill. Her answer showed that not only was she defensive as a witness but that she had missed the entire point of my question which sought to examine how a conflict of opinion between Mr and Mrs Naso senior on the one hand and the plaintiff on the other would be worked out in the management of the plaintiff's financial affairs if he was given complete control over his award. Additionally, when she was cross‑examined by counsel for the trustee, she was exceptionally defensive about the amount of money that she and her husband had been paid for nursing the plaintiff in the previous financial year claiming to not even know whether the sum of $83,000 which was being put to her was about right or not. She seemed to me to resent the questioning altogether and it became necessary for me to remind her that she was not being criticised for the obviously large amount of difficult work she and her husband were undertaking in the care of their son.
The plaintiff's father was next called to give evidence. I have already commented on aspects of his testimony which were greatly troubling to me. I should also record my observations of the plaintiff's father during the course of the proceedings before me which lasted some one and a half days. His behaviour was somewhat histrionic. In the back of the court he was muttering, shaking his head, disagreeing with witnesses or agreeing with them from time to time and the like. It was he who was actively engaged in giving Mr McCusker's instructing solicitor his instructions, not the plaintiff, even though the plaintiff was in court. During the course of his testimony I formed a most unfavourable opinion of him. His demeanour was such that I entertain grave reservations about his credibility. And hence I find his testimony unreliable. This is not to say that I do not accept that Mr Naso senior, together with his wife, have devoted their lives to the care of the plaintiff but where questions of the plaintiff's relationship with the trustee and the management of his trust estate and the provision and payment for services and expenditure of a capital nature out of that estate are concerned, he is an unreliable witness. He too demonstrated that he did not understand the significance of my hypothetical question to Dr Burvill about how the plaintiff would deal with a conflict of interest between himself and his parents. When Mr McCusker QC put the question to him he said that he was too insulted to answer it. Asked whether he had been kept informed about the change in the management of the plaintiff's nursing care from Nulsen Haven to Access Home Care his answer was: "Yes. I was informed and insulted again." Pressed further he gave a long rambling answer which suggested to me that he was avoiding the issue.
Mr Naso senior was then cross‑examined about an observation which Dr Skerritt made in a report which was before the court wherein Dr Skerritt commented that he (Mr S Naso) refused to allow Dr Skerritt, in company with Dr Burvill, to interview the plaintiff in his absence ie, while the plaintiff's father sat outside the consulting room a few metres away. The import of the cross‑examination was that the father's insistence on being present had more to do with his desire to prevent an appropriate psychiatric evaluation of his son by Dr Skerritt than of any concern for his physical safety. The plaintiff's father insisted that his only concern was for his son's welfare and claimed to have held his opinion because:
"… I was his nurse at that time there and is my responsibility to make sure that nothing happens to him. I don't care which professors there. Doesn't matter about the professors. They were all the professors involved with Max and accident did happen with the presence of the actual professors. Why should I just take that? It is my responsibility. Accident did happen in Sir Charles Gairdner. If it wasn't for myself or for my presence he wouldn't be here by now."
It then transpired that he had permitted the plaintiff to give instructions to his solicitor some distance away from him without insisting on being present as he did with Drs Skerritt and Burvill. I much prefer the evidence of Dr Skerritt to that of the plaintiff's father in this regard and accept Dr Skerritt's testimony in relation to the intrusive and objectionable nature of the presence of the plaintiff's father during the course of his consultation without question. It is, in my opinion, a concrete example of Mr Sabatino Naso's manipulative character.
Next, Mr Naso senior denied telling Dr Skerritt that he would look for another trustee to manage the plaintiff's affairs. I thought this denial strange apart from disbelieving it because quite clearly as exhibit 1 discloses at an early stage the plaintiff (for which one can read his father) had purported to appoint two fresh trustees, Mr Brickhill and Mr Dunne, in place of Perpetual Trustees (WA) Ltd.
Further, the plaintiff's father as with his mother was very defensive about the amount of money they were being paid for nursing the plaintiff. I find it remarkable that he would not know whether $83,700 having been paid to both of them in the previous financial year would be about right or not and, further, I would have grave misgivings putting in excess of $5,000,000 in the plaintiff's hands when his principal adviser, his father, can't answer a question as simple as that.
Another matter that gave me cause for grave concern about the evidence of the plaintiff's father was that concerning the trustee's purchase of the vacant land at Duncraig from him and his wife. In the proceedings before me to determine whether that land should be acquired by the trustee, the value of the land was a matter agitated at great length before me on the affidavits and in the arguments, the trustee being properly concerned that the land would be purchased at the very upper end of the range of values for that land indicating that along with its topography it would be an unwise investment. Nowhere in the papers relevant to that application as far as my review of them could find, were the trustee's concerns about the value of the land even attempted to be allayed by the presentation of evidence which suggested that it had a higher value than the trustee supposed. In fact, in par 4 of his affidavit sworn 3 September 1999 the plaintiff intimates that his parents should be prepared to take a loss. (For the sake of completeness I should add that the trustee exhibited to its affidavit a letter to Mr Naso (Snr) dated 1995 suggesting an estimated sale price then of $235,000.) Yet, in the proceedings before me, the plaintiff's father, cross‑examined about whether the plaintiff was influenced in his insistence on purchasing this land by his parents' predicament with their bank had this to say:
"He must have been very influenced by your predicament with the banks?---No.
When the decision was being made to purchase that block, would you agree?---No, incorrect, but you haven't got the facts and I can prove it to that. We lost by passing the block to Max for $227,000 or whatever it was. We had offers of $270,000.
Did you advise anyone about that?---Of course. We had from a Chinese family an offer of $270,000 which we said, no. They were prepared to go higher. We said, 'We're not going to sell it.' We were, as you said, under certain pressure but not pressure because we had to sell the block. We could have sold the block and had more. …"
This answer intrigued me having regard to the previous proceedings and following the completion of his re‑examination I asked Mr S Naso father whether that offer was in writing. He told me it wasn't. I asked him whether the plaintiff knew about the offer and he said that he did. I then asked him if it was made before my decision in the matter and he said it definitely was. I then asked him whether or not the value of the land was a live issue in the (previous) proceedings before me and he agreed that it was but then said that he didn't know if that fact of the offer of $270,000 having been made ever found its way into an affidavit and then proceeded to blame his solicitor if it didn't.
I regard this as being an example of the plaintiff's father being prepared to say anything that he thinks would advance his position.
The principal witness called by the defendant was Dr Paul Skerritt. Mr Skerritt testified, without being cross‑examined upon it, that he had experience of psychiatric consultation to the severely disabled. I entertain no doubt about his expertise in the area. Dr Skerritt verified the contents of his affidavit sworn 10 October 2000 and in particular his report prepared after a consultation with the plaintiff on 25 September 1999 which report is dated 11 October 1999. This report was prepared after the consultation at which Dr Peter Burvill was present at the insistence of the plaintiff's parents and in circumstances which I have previously commented upon where the plaintiff's father refused to allow the plaintiff to be left alone with Drs Skerritt and Burvill for any time at all. Dr Skerritt confirmed the inappropriate interjections and interruptions of the plaintiff's father during the course of the consultation purporting to answering questions on behalf of the plaintiff. Asked by Mr McCusker QC as to whether the father's ministrations to the plaintiff were called for Dr Skerritt expressed the opinion that they were not. As I have already commented, I much prefer the evidence of Dr Skerritt to the plaintiff's father about these matters.
In his report Dr Skerritt details the nature of the investigations and enquiries he attempted with the plaintiff and then discussing them further, came to his conclusions as follows:
"At the conclusion of the consultation, I reflected that, had Max been able to demonstrate evidence of brain damage and I was asked the same questions about his comprehension of his financial situation and was given the same answers that were given to me by Max, I would have advised without hesitation that he should not have the control of his affairs and that a compulsory form of Guardianship and Trusteeship should be entertained. On the basis of the answers, he lacked even the most elementary knowledge of the use of a large amount of money to maintain income and his particular needs. He expressed the wish to have control of his resources but with other sources of advice than the one that he has.
He is obviously in a physically very dependent state and yet could not tell me anything about the emotional impact of that dependence which might have allowed me to consider to what extent he is able to make independent decisions and to what extent he is likely to be influenced by his family. I may have been able to get a better idea on this question had I been left alone with him, but his father, for reasons that seemed spurious to me, insisted that this should not be the case. When his father was given the chance to talk, much of the phraseology used was very similar to that used by Max.
I agree with Mr Ker, whether or not there is brain damage, that developmental factors resulting in failure to achieve an independent identity and indeed knowledge on the most elementary matters of the management of capital and income, would make it mandatory that Max Naso does not have the control of his considerable assets and that they should be managed by an independent body well clear of the influence of his family."
Subsequently, when asked to comment upon the opinion of Dr Peter Burvill previously described, having considered Dr Burvill's opinion, Dr Skerritt in a report dated 16 August 2000 in effect deferred to Dr Burvill's opinion doing so in the following terms:
"I previously gave my opinion that the matters of intelligence and brain function did not appear to be impeding Max's ability to comprehend his financial affairs and make appropriate decisions. I did express the belief that a faulty social development in a setting of necessary but excessive dependence on his family could well be doing so. Now I am persuaded by Dr Burvill's arguments, without having to go through them point by point and I would not find any particular aspects of disagreement."
Nevertheless Dr Skerritt entertained obviously grave concerns about the plaintiff's capacity to manage his own affairs and he said so in his affidavit which exhibited the reports I have described, saying:
"… It is fair to say that I still have significant concerns for the reasons articulated in Annexures B and C. (The reports.) In particular I am concerned as to Max Naso's ability to make independent balanced decisions regarding important financial matters having regard to his family's potential input and influence in this process."
It seemed to me that at the end of the day the two opinions did not fairly meet. Dr Burvill's opinion was based on an imperfect brief of what he was being asked. His opinion was based on the assumption that somehow or other a trustee would retain financial control over the trust estate. He did not appreciate that the plaintiff was seeking day to day control over his entire trust estate. As I put it to him, he did not appreciate that the plaintiff wanted to write the cheques.
Dr Skerritt on the other hand did appreciate this and I think it is fair to say that his deference to the opinion of his senior colleague Dr Burvill was, to some extent, because he assumed that Dr Burvill had the same understanding of the legal import of the application and the reasons why their respective opinions were being sought, as he did.
Dr Skerritt adhered to the expression of his concerns before me and whilst Mr McCusker QC suggested that it would be "dangerous" for me to proceed to my own conclusion about the plaintiff's capacity to manage his own affairs rather than accept the opinion of Dr Burvill to whom he said Dr Skerritt deferred, I must disagree. It is my opinion that is being sought after all and I may accept or reject the opinions of experts as the case requires. My own assessment of the plaintiff's capacity and the undue influence exercised over him by his father whether it be conscious or subconscious is such that in my opinion the plaintiff does not have an independent capacity to manage his own affairs so that he should be left in day to day control of his estate. In this regard my views are completely in accord with those of Dr Skerritt as first recorded by him.
In this event I should make it plain that my finding does not challenge the acceptance by both psychiatrists that there is no or basically minimal evidence of brain damage and there is no psychiatric disorder such that it might be said that the plaintiff is legally insane. My finding as to the plaintiff's incapacity to manage his own affairs is based upon the following:
(a)His profound physical disabilities which necessitate the delivery of nursing care 24 hours a day.
(b)The plaintiff's physical disabilities would mean that he would be unable to attend to any of the physical aspects involved in the management of a large monetary award such as attendance upon his bankers, accountants, tax advisers and the like.
(c)His physical incapacity rendering him unable to communicate effectively with his advisers.
(d)His physical incapacity has resulted in him having no social development, an imperfect intellectual development and little or no life skills such as would give him the necessary, most rudimentary knowledge of how to manage such a large award.
(e)His physical incapacities leave him physically and emotionally dependent upon his parents, particularly his father, whose views he espouses and adopts without question.
The plaintiff's post accident education
Before proceeding to consider the legal framework within which this application has been made I should acknowledge the arguments that were addressed to me on the evidence of the plaintiff's education as being evidence of his capacity to manage his own affairs. In his affidavit sworn 31 July 2000 at pars 7, 8 and 9 the plaintiff gives details of his educational pursuits. The exhibits disclose that he has achieved pass levels in various modules of a course in "Customised Office Skills" which is described as "an adult course specially design [sic - designed] for people who may have physical barriers or learning difficulties that would not allow them to be able to study at a mainstream educational facility such as TAFE. This course is an adult education course all modules have national accreditation" (sic).
Likewise the plaintiff achieved pass levels in various modules of a certificate in "Graphics Prepress" and whilst the exhibits do not make this clear, I understand that this has been in two separate semesters' study. In his affidavit sworn 6 November 2000 the plaintiff deposes that he completed that course on 11 September 2000.
What the affidavits don't say is that the plaintiff failed years 11 and 12 of High School and no evidence was produced about his true academic progress before that. Having had the opportunity of seeing and hearing from the plaintiff himself and of reading all of the affidavit material provided to the court I remain of the opinion that the plaintiff does not have the capacity to manage his own affairs. The fact that he has been able to pass a modest adult education course in Graphics Prepress does nothing to persuade me otherwise.
Other matters
It was submitted on behalf of the plaintiff that when the court approved the compromise it did so assisted by the opinion of Mr E M Heenan QC and Mr R K Genders which, in a comprehensive review of the plaintiff's case did not contain any suggestion that the plaintiff was mentally incapable. So much is true. It should be likewise be noted however that nowhere did the opinion ever suggest that the plaintiff was capable of managing his own affairs and indeed the opinion argued for and calculated trust management fees for the rest of the plaintiff's life.
It was also argued on behalf of the plaintiff that the trustee has always treated him as being sui juris from the time of his 18th birthday. For my part I think the trustee's actions in this regard being those relied upon by the plaintiff such as submitting income tax returns to him for his signature and the like, are entirely equivocal. It is more to the point to say that nowhere has the trustee ever acknowledged that the plaintiff is capable of managing his own affairs and, even if it had, it was no part of the trustee's power to relinquish a court appointed trust. In this regard it should be noted that the plaintiff did not move to take control of his own affairs until some little time after his 18th birthday and then, it could said, on a fair reading, it was only because of the trustee's reluctance in acquiring the vacant land from his parents for the construction of his house that precipitated his actions in this regard.
Jurisdiction
In essence the plaintiff argues that as he is no longer an infant and has not been demonstrated to be of unsound mind, the court's supervisory jurisdiction is at an end and he can call for a vesting of the trust as in Saunders v Vautier (1841) 49 ER 282. The Full Court has already decided in this case that the rule in Saunders v Vautier has no application to a court appointed trust. McKechnie J has determined in Newton v The Public Trustee [2000] WASC 118 that this notwithstanding, the principle should be given effect where a beneficiary demonstrates competence, as there was the case.
The question then becomes: does the court have jurisdiction to order the continuation of a court appointed trust where the beneficiary is of full age and is not by reason of mental illness, defect or infirmity incapable of managing his affairs? The answer to this question may only be arrived at by examining the origins of the court's protective jurisdiction, which at first glance may be thought to exist only in relation to infants and mentally disabled persons, having regard to the wording of O 71 r 1 of the Rules of the Supreme Court. However it is trite to say that Rules of Court cannot enlarge a court's jurisdiction as McKechnie J relevantly observed in Newton. More to the point however is that neither may they confine it. What is apparent is that the court's jurisdiction and power over persons under a disability comes from its equitable jurisdiction (in the Supreme Court conferred by s 16(1)(d) of the Supreme Court Act 1935 and in this Court by s 50(2) and s 55 of the District Court Act 1969 and not, I think, from s 16(1)(a) and s 55 alone, respectively, as submitted by the plaintiff). It should be noted how this jurisdiction is expressed in s 16(1)(d) of the Supreme Court Act.
"(1)Subject as otherwise provided in this Act, and to any other enactment enforced in this State, the Supreme Court ‑
…
(d)shall be a court of equity, with power and authority within Western Australia and its dependencies ¾
(i)to administer justice, and to do, exercise, and perform all acts, matters, and things necessary for the due execution of such equitable jurisdiction as, at the commencement of the Supreme Court Ordinance 1861, the Lord Chancellor of England could or lawfully might have done within the realm of England in the exercise of the jurisdiction to him belonging; and
(ii)to appoint guardians and committees of the persons and estates of infants, lunatics, and persons of unsound mind according to the order and course observed in England, and for that purpose to inquire into, hear, and determine by inspection of the person the subject of inquiry, or by examination on oath or otherwise of the party in whose custody or charge such person is, or of any other person or persons, or by such other ways and means by which the truth may be best discovered, and to act in all such cases as fully and amply to all intents and purposes as the said Lord Chancellor or the grantee from the Crown of the persons and estates of infants, lunatics, and persons of unsound mind might lawfully have done at such date."
The Lord Chancellor of England had in 1861 the parens patriae jurisdiction of the Sovereign which he had exercised from time to time in a number of celebrated cases. The nature of the jurisdiction has been summarised in Halsbury's Laws of England (3rd ed vol 7 at [475]) in these terms:
"475.The Crown as parens patriae. As liege lord and protector of her subjects, the Sovereign enjoys the prerogative right of taking care of the persons and estates of infants, idiots, and persons of unsound mind, and of superintending charities, but the exercise of those powers has now been delegated by the Sovereign or assigned by statute to various authorities.
The wardships of infants and the care of infants' estates, and jurisdiction in all such matters is now expressly assigned to the Chancery Division of the High Court of Justice.
The care and commitment of the custody of the persons and estates of idiots and persons of unsound mind which has belonged to the Crown at common law from very early times, is invariably delegated to the Lord Chancellor by warrant under the sign manual. Matters relating to the confinement of idiots and persons of unsound mind, whether so found by inquisition or not, and the custody of their property by means of committees, are now principally regulated by statute and are placed under the supervision of the Commissioners in Lunacy, subject to the general jurisdiction of the Judge in Lunacy ie, the Lord Chancellor."
It is as well to understand the terminology and place it in its historical context, for the use of the words "idiot" and "lunatic" may, these days, without an historical explanation, be regarded by some as offensive. At common law idiots are persons born without any glimmering of reason, including persons born deaf, dumb, and blind; whilst lunatics are persons who have become temporarily or permanently deprived of their reason, or non compos mentis, by disease, grief, or accident after birth including persons becoming deaf, dumb and blind after birth: 1 Blackstone's Commentaries (14th ed) 303, 304 (as noted at footnote (a) to [475] in Halsbury (supra)).
It is further noted in vol 21 of the 3rd ed of Halsbury's Laws of England at [478] under the heading "Special Protection of the Sovereign" that:
"[I]nfants have always been treated as specially under the protection of the Sovereign, who, as parens patriae, had the charge of persons not capable of looking after themselves. This jurisdiction over infants was formerly delegated to and exercised by the Lord Chancellor; through him it passed to the Court of Chancery and is now vested in the Chancery Division of the High Court of Justice. It is independent of the question whether the infant has any property or not, or whether he is a foreign subject."
The emphasis, missing from the Rules of the Supreme Court, is that the jurisdiction is exercised over "persons not capable of looking after themselves". This is the broad expression of the jurisdiction. It is ancient in origin and clearly vested in the Lord Chancellor of England in 1861 for in 1804 a famous Lord Chancellor, Lord Eldon, described the parens patriae jurisdiction in De Manneville (1804) 10 Ves 52 at 59 as follows:
"The Court of Kings Bench, when the child was brought up by Habeus Corpus, declined to interfere; and I am not surprised at it; for that Court has not within it by its constitution any of that species of delegated authority, that exists in the King, as Parens Patriae; and resides in this Court as representing his Majesty."
And further, at 61, 62 Lord Eldon describing other cases in which he had sat as Lord Chancellor said:
"The father was a person in constant habits of drunkenness and blasphemy, poisoning the mind of the infant; and I thought it not inconsistent with a due attention to parental authority, so abused, to call in the authority of the King, as Parens Patriae."
And at 64 in the same case Lord Eldon stated the principle as follows:
"But that presumption, like all others would fail in particular instances; and if an instance occurred, in which the father was unable, or unwilling, to execute that duty, and farther was actively proceeding against it, of necessity the State must place somewhere a superintending power over those, who cannot take care of themselves;"
This principle he repeated the next year in Re Fitzgerald (1805) 2 Sch. & Lef 432 at 437:
"… so that the meaning simply is, that in the one case the king shall have a personal benefit, but that in the other he is only to act as parens patriae, as the person to take care of those who are incompetent to take care of themselves…"
And I take it that the word "incompetent" is not to be confined to infants and persons of unsound mind, as I later explain.
The history of the acquisition and development of this jurisdiction has been explained by La Forrest, J. in Re Eve (1986) 31 DLR (4th) 1. His Lordship's historical analysis was expressly approved by the High Court in Marion's Case (1992) 175 CLR 218 at 258. The High Court's dicta there is comprised in a fairly long quotation but I shall set it out in full in order that the principles I am endeavouring to identify and isolate may be more easily examined:
"As already mentioned, the welfare jurisdiction conferred upon the Family Court is similar to the parens patriae jurisdiction. The history of that jurisdiction was discussed at some length by La Forrest, J. in Re Eve. His Lordship pointed out that 'The Crown has an inherent jurisdiction to do what is for the benefit of the incompetent. Its limits (or scope) have not, and cannot be defined.' In Wellesley v Duke of Beaufort, Lord Eldon L.C., speaking with reference to the jurisdiction of the Court of Chancery, said:
'It belongs to the King, as parens patriae having the care of those who are not able to take care of themselves, and is founded on the obvious necessity that the law should place somewhere the care of individuals who cannot take care of themselves, particularly in cases where it is clear that some care should be thrown around them.'
When that case was taken on appeal to the House of Lords, Lord Redesdale noted:
'Lord Somers resembled the jurisdiction over infants, to the care which the Court takes with respect to lunatics, and supposed that the jurisdiction devolved on the Crown, in the same way.'
Lord Redesdale went on to say that the jurisdiction extended 'as far as is necessary for protection and education'.
To the same effect where the comments of Lord Manners who stated that: 'It is impossible to say what are the limits of that jurisdiction.' The more contemporary descriptions of the parens patriae jurisdiction over infants invariably accept that in theory there is no limitation upon the jurisdiction. That is not to deny that the jurisdiction must be exercised in accordance with principle. However, as appears from the authorities discussed earlier, the jurisdiction has been exercised in modern times so as to permit medical operations on infants which result in sterilisation.
No doubt the jurisdiction over infants is for the most part supervisory in the sense that the courts are supervising the exercise of care and control of infants by parents and guardians. However, to say this is not to assert that the jurisdiction is essentially supervisory or that the courts are merely supervising or reviewing parental or guardian care and control. As already explained, the parens patriae jurisdiction springs from the direct responsibility of the Crown for those who cannot look after themselves; it includes infants as well as those of unsound mind. So the courts can exercise jurisdiction in cases where parents have no power to consent to an operation, as well as cases in which they have the power." (My emphasis.)
In my opinion it is tolerably clear that whilst the authorities are often canvassing the particular position of infants and persons who have been found following inquisition to be of unsound mind, as almost all of the authorities demonstrate, the jurisdiction is more broadly expressed to be that the parens patriae jurisdiction is a jurisdiction which exists for the purpose of looking after those who cannot look after themselves. Should any example be required of the general protective jurisdiction of the Lord Chancellor having been exercised before 1861 of a person not an infant and not of unsound mind, it may be found in Re The Trusts of Jane Poole, a Person Deaf, Dumb and Blind (1852) 5 De G & SM 469 where "[the petitioner's] knowledge of business, and competency to manage her own affairs, subject only to her infirmities, were not questioned." And where the Vice Chancellor said: "there was nothing that showed that the petitioner was of unsound mind; and therefore it did not appear to him to be necessary that the petitioner should appear by a next friend." The Vice Chancellor there refused to vest a trust created for the petitioner who had sought this relief praying that she was advised that she was entitled to have and that she was desirous of having, the uncontrolled dominion over her own property.
Accordingly, it seems to me that I have the jurisdiction to find as a fact that the plaintiff is not capable of managing his own affairs by reason of all of the circumstances I have previously detailed, notwithstanding that he is not an infant and notwithstanding that the evidence discloses no mental infirmity, disease or defect.
Accordingly I refuse the relief sought in par 1 of the amended summons and I will hear the parties as to costs and make programming orders in respect of the application to remove the trustee and replace it with another. In this latter regard, before the matter proceeds further, I should commend to the parties a consideration of Letterstedt v Broers (1884) 9 AC 371 (PC).
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