N

[2025] WASAT 4

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION:   N [2025] WASAT 4

MEMBER:   DR E MARILLIER, SENIOR MEMBER

HEARD:   4 NOVEMBER 2024

DELIVERED          :   15 JANUARY 2025

FILE NO/S:   GAA 5395 of 2022

N

Represented Person and Applicant

Catchwords:

Guardianship and administration - Delusional Disorder, Persecutory type - Querulous paranoia - Risk of financial harm - Unmeritorious legal action - Exhaustion of resources

Legislation:

Family Provision Act 1972 (WA)
Guardianship and Administration Act 1990 (WA), s 3(1), s 4, s 4(2), s 4(3)(c), s 4(3)(d), s 4(4), s 4(6), s 4(7), s 64(1)(a), s 64(1)(b), s 67, s 67(1), s 68(1)(a), s 68(1)(c), s 68(1)(d), s 68(3)(a), s 68(3)(b), s 68(3)(c), s 70, s 74(1), s 78(1)(a), s 84, s 86, s 90, Sch 2, Pt A, cl 15
Interpretation Act 1984 (WA), s 56(1)

Result:

Private plenary administrator appointed

Category:    B

Representation:

Counsel:

Represented Person and Applicant : In Person

Solicitors:

Represented Person and Applicant : N/A

Case(s) referred to in decision(s):

FY [2019] WASAT 118

GC and PC [2014] WASAT 10

JCB [2025] WASAT 1

TF by next friend LP v BF as executor and trustee of the estate of AF [2021] WASC 485

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

1. N is a fiercely independent, highly educated woman who lives inter­state and is now in her mid-70s.  She has been in conflict with her siblings since the death of their father in 2010 over the income and/or capital she should derive from the complex family trust structure.  N has never needed to work due to the income provided throughout her life by her father and the family business.  Until her father's death he made all financial arrangements for her under a power of attorney, including her tax returns.

2. In 2019, the Supreme Court of Western Australia (Supreme Court) made orders appointing M (a solicitor) as the next friend for N in an action against her siblings.  This claim under the Family Provision Act1972 (WA) in relation to her mother's estate was referred to mediation. At mediation the parties agreed to attempt to settle N's broader grievance in a global settlement that would see her no longer be involved in any capacity in the family trusts (including as a beneficiary).

3. On 12 May 2020, the State Administrative Tribunal (SAT) made orders (2020 Orders) appointing M as the limited administrator under the Guardianship and Administration Act 1990 (WA) (GA Act) for N:

   …

   (a)to seek legal advice on behalf of the represented person in relation to all claims relating to the … family and related partnerships, trusts, companies and other entities and to bring and defend actions, suits and other legal proceedings in the name of the represented person in relation to the same and related matters and, if appropriate, settle these matters.  

4. The 2020 Orders were to be reviewed before 12 May 2023.

5. The Supreme Court matter was settled on confidential terms.  The settlement was approved by the Supreme Court on 10 December 2021.[1]  The published decision has been suppressed.  An excerpt filed with the Tribunal by multiple parties indicates that the Court was satisfied the settlement was overwhelmingly in N's interests.

   [1] TF by next friend LP v BF as executor and trustee of the estate of AF [2021] WASC 485.

6. N was informed of the settlement and its terms in a 51-page letter from M dated 25 February 2022,[2] attaching advice from an eminent independent barrister and former Federal Court Judge who had received information from both M and N,[3] the Deed of Settlement[4] and the Supreme Court orders of 13 December 2021 (reflecting oral orders of 10 December 2021) and 13 January 2022.[5]

   [2] Letter of M to N 25 February 2022, attached to folio 44 of matter GAA/5395/2022.

   [3] Advice from independent barrister of 6 December 2021, attached to folio 44 of matter GAA/5395/2022.

   [4] Deed of Settlement, attached to folio 44 of matter GAA/5395/2022.

   [5] Supreme Court Orders of 13 December 2021; Supreme Court Orders of 13 January 2022, attached to folio 44 of matter GAA/5395/2022.

7. On 13 December 2022, N filed an application with SAT seeking review of the 2020 Orders pursuant to s 86 of the GA Act. She asserted that M does not want to let go of the power even though she settled the case in 2021. Further:[6]

   … [M] is not representing me any more but is probably hanging on to her role to prevent me from challenging the settlement she reached with my opponent behind my back and got it approved by the Court.  I intend to sue her for professional negligence as soon as her limited administrator role is terminated by SAT.

   [6] Application, 13 December 2022.

8. N claimed M abused her powers, compromising N's case for her own protection after being threatened by an opposing party for breaching a non-disclosure agreement which applied to forensic accounting which N says revealed the opposing party acted unlawfully.

9. For clarity, both M and the opposing party emphatically deny those claims.

10. N also claimed that M framed her by 'lobbying the doctor she asked me to get tested by'.[7]  N refers to making a complaint to the Health Complaints Commission by which she gained access to this 'secret correspondence' which she says contains 'disinformation'.[8]

    [7] Application, 13 December 2022.

    [8] Application, 13 December 2022.

11. N also applied to the Supreme Court for access to the sealed documents held by that court.  Justice Tottle conducted a Directions hearing in relation to that application on 13 April 2023.

12. SAT conducted Directions hearings in relation to the s 86 application for review of the administration order on 21 December 2022, 16 February 2023 (where the matter was listed for a final hearing on 20 March 2023 which was then vacated at the request of parties and re­listed to 17 April 2023 which was then vacated, again at the request of parties), 29 March 2023, 17 July 2023 and 5 September 2024.

13. Initial arguments regarding whether the Tribunal had jurisdiction given the matter had settled and N lived inter-state fell away after N made her application for access to the Supreme Court documents.

14. However, parties then sought that determination of the s 86 matter should be delayed pending the Supreme Court's decision and/or any decision by the Victorian Civil and Administration Tribunal (VCAT) if an application was made in Victoria.

15. Orders were made by the Tribunal on 17 July 2023 that review under s 84 of the GA Act (which was now overdue) would, unless the Tribunal otherwise ordered, take place subsequent to the Supreme Court's decision. This order was made on the matter number corresponding to the existing s 86 application, and was taken to apply to both types of review in relation to the administration order for N.

16. SAT having received no update from the parties, I called a further Directions hearing on 5 September 2024.  I was advised that no further progress had occurred at the Supreme Court (or VCAT).

17. Given that N had applied for review of the orders 21 months previously, and that in addition the orders were at that time some 16 months past the date before which periodic review should have occurred under the 2020 Orders, I determined that the decision of the learned Senior Member of 17 July 2023 was no longer in N's best interests, and that the review of the administration order should be heard and determined by SAT without further delay.

18. The matter was heard on 4 November 2024, with copious written evidence and submissions, and oral evidence and submissions from N, her daughter B, M, legal representatives for the opposing parties in the Supreme Court matter and expert evidence from Dr A and Dr M.

19. Written closing submissions were to be made by 29 November 2024; however, N sought and was granted an extension such that closing submissions for all parties were to be filed by 19 December 2024.

20. In total 1,760 pages were filed on the matter between the application and the deadline.  This included 275 pages over 47 folios from N on 19 December 2024 as her closing submissions.  N subsequently sought to file further documents after the decision was reserved on 20 December 2024 which have not been considered.

21. I am satisfied and I find that N suffers from querulous paranoia and a persecutory delusional disorder.  I am satisfied and I find that the presumption of capacity is set aside, that N is not able to make reasonable judgments in relation to her estate, and that she is in need of an administrator.

22. N's daughter, B, is willing to be appointed as her administrator and I find that she is suitable.  I am satisfied and I find that it is in N's best interests that I appoint B as her administrator.  I will therefore revoke the appointment of M, and substitute that with the appointment of B with a broader authority than the previous order.

23. My reasons for these findings follow.

Principles to be observed

1. In making my decision, I am mindful of the principles set out in s 4 of the GA Act:

   (a)my primary concern is the best interests of N;[9]

   (b)N is presumed to be capable of managing her own affairs; and of making reasonable judgments in respect of matters relating to [her] estate until the contrary is proved to the satisfaction of the Tribunal;[10]

   (c)an administration order may not be made where there is an alternative means of meeting N's needs that is less restrictive of her freedom of decision and action;[11]

   (d)where an order is made, it must be in terms that impose the least restrictions on N's freedom of decision and action;[12]

   (e)I must seek to ascertain, as far as possible, the views and wishes of N.[13]

   [9] Guardianship and Administration Act 1990 (WA) (GA Act), s 4(2).

   [10] GA Act, s 4(3)(c) - s 4(3)(d).

   [11] GA Act, s 4(4).

   [12] GA Act, s 4(6).

   [13] GA Act, s 4(7).

What the Tribunal must be satisfied of

1. Before appointing an administrator, I must first be satisfied that N is unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all or any part of her estate.[14]

   [14] GA Act, s 64(1)(a).

2. I must also be satisfied that N is in need of an administrator.[15]

   [15] GA Act, s 64(1)(b).

Jurisdiction

1. I am satisfied that I have jurisdiction to determine the matter despite N living interstate and her estate in Western Australia at the time of her initial application for review consisting of a settled matter at the Supreme Court where funds under the settlement had been partly paid into M's trust account (inter-state) and were partly to be paid in further tranches into a Life Trust with the final instalment scheduled for 2027.[16]  I am so satisfied for the following reasons.

   [16] Deed of Settlement (n 4).

2. Firstly, s 84 of the GA Act states:[17]

   The State Administrative Tribunal shall — 

   (a)when it makes a guardianship order or an administration order or any order amending, continuing or replacing an order specify a period, not exceeding 5 years from the date of the order, within which the order shall be reviewed; and

   (b)ensure that the order is reviewed accordingly.

   [17] GA Act, s 84.

3. The mandatory language of s 84 indicates that even where a person has left the state or no longer has an estate to be managed here, the order must be reviewed within the period set in the original order.[18]  SAT can then revoke the order if it is no longer needed or amend, continue or replace the order being reviewed if that is what is in the person's best interests in the circumstances of the case.[19]

   [18] Interpretation Act 1984 (WA), s 56(1).

   [19] GA Act, s 90.

4. Secondly, where there is an existing order under the GA Act appointing an administrator that power continues until it is revoked by SAT or the represented person dies.[20]  Neither of these conditions has been met, therefore the order exists and must be reviewed.

   [20] GA Act, s 78(1)(a).

5. Thirdly, the GA Act makes specific provision for persons not resident or domiciled in Western Australia in relation to administration orders.[21]  The case law has been explored in a recent decision by Member Loh.[22]

   [21] GA Act, s 67.

   [22] JCB [2025] WASAT 1 [170] - [172].

6. Importantly, s 67(1) states that any such order is limited to the person's estate in Western Australia.

7. I am satisfied that the unpaid tranches of the settlement, the application by N to access documents on the Supreme Court matter and her stated intent to seek to overturn the settlement constitute an estate which is in Western Australia. I note that the power to bring and defend actions, suits and other legal proceedings in the name of the represented person is one which the GA Act states can be a function of an administrator.[23]

   [23] GA Act, Sch 2, Pt A, cl 15.

8. Subsequent to orders I made on an oral application by M and with N's consent pursuant to s 74(1) of the GA Act at the end of the hearing on 4 November 2024 authorising and directing M to transfer the already paid settlement funds held in a non-interest-bearing trust account to an interest-bearing controlled moneys account on behalf of N, I am informed that those funds are now also located in Western Australia.[24]

   [24] Closing Submission of M, 19 December 2024, folio 167 on matter GAA/5395/2022.

The issues

1. Having satisfied the jurisdictional question, the remaining issues are:

   (1)Does N have a mental disability?

   (2)If so, does it lead to her being unable to make reasonable decisions in relation to some or all of her estate in Western Australia?

   (3)If so, is there a need for me to appoint an administrator, or is there any less restrictive alternative that will be sufficient to protect N's interests?

   (4)If there is a need, who should be appointed?

   (5)What are the terms that will be least restrictive on N's freedom of decision and action but still be sufficiently protective?

   (6)Within what period should any order be reviewed?

Does N have a mental disability?

1. The GA Act defines mental disability as including an intellectual disability, a psychiatric condition, an acquired brain injury and dementia.[25]

   [25] GA Act, s 3(1).

2. In FY [2019] WASAT 118 (FY), the Full Tribunal explained that 'a mental disability may manifest in a variety of ways, including as a disturbance or limitation in a person's thought processes or their cognitive ability, in their perceptions of reality, emotions or judgments, in disturbed behaviour or in learning difficulties'.[26]

   [26] FY [2019] WASAT 118 [27] (FY).

3. There is evidence before me from four medical doctors, one neuropsychologist and one functional medicine practitioner.

4. Dr A is a consultant psychiatrist who first saw N in 2018.  Copies of reports from 19 December 2018, 2 April 2022, 10 February 2023, 25 February 2023 and 12 August 2023 are before me.  Dr A also gave oral evidence at the hearing on 4 November 2024.

5. Dr A diagnosed N with post-traumatic stress disorder (PTSD) in 2018, after a comprehensive battery of cognitive screening tests (results of which Dr A concluded were 'normal for her age and education'),[27] imaging and blood tests which 'did not show any abnormality that would be likely to cause cognitive impairment'.[28]

   [27] Dr A Report, 19 December 2018.

   [28] Dr A Report, 19 December 2018.

6. The diagnosis of PTSD was based on N's self-report of her function in legal settings and a letter to N from N's previous lawyer, R, which Dr A had received (a copy of which is in evidence).[29]  Dr A was satisfied the diagnostic criteria for PTSD were met.

   [29] Letter of R, 5 December 2018, attachment MCA-3 to the Affidavit of M as Next Friend sworn 17 July 2024 in the Supreme Court matter.

7. On review in 2019, on N's self-report that her symptoms had remitted, Dr A formed the view, which he continued to express in the 2022 and 2023 reports, that N remained in remission and no longer met the diagnostic criteria for PTSD.  He knew that in the past there had been a suggestion of delusional disorder.  I had made orders that the medical reports on the file should be provided to Dr A so that he was aware of the other medical evidence that I will detail below.[30]  I had denied the request by M and the legal representatives for the opposing parties that the full collateral history she had provided to Dr M1 be provided due to N's strong belief that this was unfair and contained 'misinformation'.[31]

   [30] Orders, 8 February 2023.

   [31] See para 9, supra; ts 16 - 17, 16 February 2023.

8. In 2022, Dr A wrote:[32]

   [i]t is impossible for me to say for sure whether or not she has unshakeable, fixed, false beliefs as the basis of one or more delusions.  Certainly, her conviction that her lawyer has treated her wrongly is fixed and unshakeable as is her belief that her brother has wronged her and that she is owed large sums of money even after the reported settlement.  I cannot say for sure that these ideas are false.  She has a long history of pursuing legal action, has been unhappy with the way her case has been handled by a number of lawyers and believes her brother had treated her unjustly.  She thinks her daughter has collaborated with her lawyer and her brother and is unhappy about that. ... but I cannot make a determination as to whether her beliefs about these points are reasonable or unreasonable.  [N's] long history of litigation and the extreme arousal and pressure of speech she manifests when discussing her legal affairs would not be inconsistent with a delusional disorder, but I was unable to diagnose a delusional disorder with certainty when I saw her in March 2022. … I cannot exclude the presence of a delusional disorder with [certainty] …'.

   [32] Dr A Report, 2 April 2022.

9. In 2023 Dr A stated:[33]

   I am unable to find clear evidence of unshakeable, fixed, false beliefs as the basis of delusions.  Her conviction that her lawyer has treated her wrongly is strong, as is her belief that her brother has wronged her and that she is owed money, above and beyond any agreed settlement.  I cannot find evidence that these ideas are false.  I was unable to diagnose a delusional disorder when I saw her today' (Original emphasis).

   [33] Dr A Report, 10 February 2023.

10. His clinical opinion remained that 'no cognitive, delusional or mood disorder was present' on review later that year.[34]

    [34] Dr A, Report, 12 August 2023.

11. At the hearing, the parties including N agreed that Dr A and Dr M1 should read the 30-page statement of evidence provided by N's daughter, B,[35] and N's 12­page response to it.[36]  This occurred prior to the concurrent expert evidence.

    [35] B's Statement of evidence 28 October 2024, folio 145 on matter GAA/5395/2024.

    [36] N, 'My response to my daughter's submission', filed 1 November 2024, folio 149, on matter GAA/5395/2024.

12. Having read the documents, Dr A said:[37]

    [37] ts 39 - 40, 4 November 2024.

    [DR A]:  … I haven't diagnosed the delusional disorder up to date because of a lack of any absolute clear evidence that the ideas she has been expressing to me are absolutely clearly false.

    MARILLIER MS:     … So if there were compelling evidence that N's beliefs, as expressed to you the last time you saw her, about her legal position and her claim were false, what would that indicate diagnostically?

    [DR A]:                   Well, that could support the diagnosis of a delusional disorder, as we've previously discussed …

    ...

    … if [B]'s evidence is accurate, there have been concerns, not just with this one lawyer, but with multiple lawyers, with people fitting materials to her home and with interactions with medical professionals, which does seem to suggest that a certain degree of paranoid thinking is spilling out into other areas of her life.

    MARILLIER MS:     So if there were that compelling evidence that this pattern of behaviour in multiple settings of engaging professional assistants, rejecting the advice or outcome, contesting costs incurred, and referring professionals to regulators, courts or tribunals had occurred in multiple settings over the last 15 years, what would that indicate diagnostically?

    [DR A]:  Well, that would be more consistent with [Dr M1]'s diagnosis of a querulous paranoid disorder, as defined by ICD-10.

    MARILLIER MS:     And if she were unable to integrate verbal and written advice from professionals acting on her instruction into her belief system, what might that indicate?

    [DR A]:  Well, that again would be supportive of that diagnosis of querulous paranoid disorder, I guess.

1. Dr M1 is also a consultant psychiatrist and copies of reports from 12 February 2019, 16 March 2021, 20 June 2021 and 7 July 2021 have been filed.  Dr M1 gave oral evidence concurrently with Dr A.

2. Dr M1 first saw N in 2019 at the request of N and B in the context of N's request for the appointment of a litigation guardian for the Supreme Court matter.[38]  N reported going into shutdown or survival mode as a result of anxiety in relation to making complex decisions about her legal situation.  She explained that she felt unable to take in or process information at those times.[39]

   [38] Dr M1 Report, 12 February 2019.

   [39] Dr M1 Report, 12 February 2019.

3. Dr M1 had Dr H's report (detailed below) indicating N had an information processing speed markedly lower than expectations, and concluded that taken together with her insight and judgment being questionable in relation to her legal issues, the extent and complexity of the current litigation 'seemed quite clearly beyond her capacity'.[40]

   [40] Ibid.

4. In March 2021 Dr M1 had reviewed N at the request of M, with the benefit of seeing the letter from R, the report of Dr H of 2019 and a further one in 2021, undated correspondence from N and B to Dr M1 which he believed to be written in 2019, and further email correspondence between himself, Dr H, M, and N in various combinations between 2019 and 2021.  He also had a 10-page letter from M detailing her observations of N's behaviour during the time she had been litigation guardian, and 42 pages of transcripts of meetings between N, M, a barrister F and a solicitor C between April and August 2020.  Dr M1 also noted he had had regard to a psychiatric textbook, two recent scientific papers focused on delusional disorder and paranoia, and the diagnostic classification systems DSM-5, ICD-10 and ICD-11.[41]

   [41] Dr M1 Report, 28 May 2021.

5. Dr M1 observed:[42]

   [w]hen speaking about subjects that conveyed no emotional valence, she presented as cool, calm and logical in her thought form.  As soon as topics related to her litigation difficulties arose, she demonstrated significant flight of ideas and perseveration of themes.  These themes included her history of litigation and the role of her daughter in this process.  Complaints about the cost and quality of her legal representation over the years were also prominent.  She passionately expressed a range of beliefs regarding her brother and his motives for not settling her claim.  These could certainly be viewed as having a paranoid flavour, but in the absence of any detailed knowledge of her litigation and the facts of the matter, it was certainly not possible to conclude that these were truly paranoid ideas[.] (Original emphasis)

   [42] Ibid.

6. N's scores on cognitive screening tests were normal when tested by Dr M1.

7. Dr M1 writes to M:  'the most striking aspect of [N]'s observable mental state was the way in which her manner completely changed, along with any abnormal thought form disappearing, when she was diverted from topics that relate to her litigation process'.[43]

   [43] Ibid.

8. And further:[44]

   Whilst my own direct observations of [N] did not leave me in a position to form a judgement on these matters (lacking direct knowledge of what has transpired during the period of time that litigation has been in train, or the actions taken by other parties enjoined in her dispute) it seems clear from the contents of the ancillary materials provided by your office … that there is little, if any, evidence to support many of [N]'s claims in relation to the legal matters in dispute.  You have informed me that a highly experienced barrister with extensive accounting experience has examined those financial records pertinent to her case, and has concluded that the records do not substantiate [N]'s claims. I must accept this to be the case.

   In addition, whilst [N] clearly believes that she has been 'obstructed in the pursuit of long-term goals', this being in relation to the pursuit of her inheritance rights, it would appear from analysis of the ancillary materials provided that the objective facts do not substantiate this view.

   The Diagnostic and Statistical Manual of Mental Disorders Version V (DSM-V) defines delusions as 'fixed beliefs that are not amenable to change in the light of conflicting evidence'.  Weighing the information available to me, I must conclude that [N]'s views about her entitlements related to her father's deceased estate, and the actions that others are alleged to have taken to prevent her from receiving these entitlements, meet the definition of delusions.

   Accordingly, it is my professional opinion that [N] satisfies all diagnostic criteria for Delusional Disorder, Persecutory type.

   …

   It is also noted that [N] would appear to meet the criteria for paranoia querulans, listed in the International Classification of Diseases Version 10 (ICD-10, 2004), whilst this diagnostic entity does not appear in the current iteration of the ICD, ICD-11 (2018).

   [44] Ibid.

9. Dr M1 wrote further supplementary reports to M in June and July 2021 explaining how the condition would be predicted to impact N's response to a settlement.  These will be detailed below.  There was no change in his diagnosis.

10. Dr H is a neuropsychologist to whom N was referred by Dr M1.  Copies of reports from Dr H dated 7 February 2019 and 1 April 2021 are in evidence.

11. Dr H conducted detailed formal cognitive examinations on both occasions with the WAIS-IV (amongst other tests in 2021).  He concluded in 2019 that N showed significant reductions in information processing speed and attentional function, plus signs of strategic and at times conceptual reasoning difficulty, despite her Full Scale IQ falling within the average range.  Verbal intellectual functions fell in the average to high average range.  N's information processing speed was in the low average to average range, which Dr H felt was moderately to markedly below expectations given that N has achieved a PhD in the past.[45]

    [45] Dr H Report, 7 February 2019.

12. Dr H's 2021 report to M was informed by the previous reports of Dr M1 (and M's letter of instruction to Dr M1 of 2021) and Dr A's two reports of 2019.  He reports:[46]

    … [N] was clearly keen to discuss legal matters and could be difficult to direct during conversation.  She spoke in quite a circumstantial fashion and much of the content of conversation reflected themes that she had spoken about at our first assessment two years earlier.  [N] was clearly well motivated to perform at her best level on formal cognitive assessment and was able to focus and cooperate well during this portion of the assessment.

    [46] Dr H Report, 1 April 2021.

13. Dr H reports N's results showed:[47]

    … against a premorbid level of ability estimated to have fallen at least within the high average to superior range, there was evidence of moderately slowed information processing speed and mild to moderately reduced working memory.  There were features of adaptive intellectual and executive dysfunction, particularly with regard to spontaneous idea generation, and also significant reduction to visual attention and analysis, and a reliance on external task structure.  Verbal intellectual functions were in accordance with premorbid expectations[.]

    [47] Ibid.

14. Dr H concluded:[48]

    With strict focus on the cognitive component of [N]'s presentation, in my opinion, her cognitive profile satisfies DSM-5 criteria for Mild Neurocognitive Disorder.  The exact aetiology of the cognitive impairment is as yet not known because investigations, such as neuroimaging, have not been completed.  It is my opinion, having met [N] now on two occasions, that there are likely to be significant personality and/or psychological vulnerabilities that contribute to her presentation and have bearing on her capacity to make decisions in the context of stress and complex circumstances.

    [48] Ibid.

15. Dr M1 stated in his 20 June 2021 report:[49]

    I am being asked to provide an opinion on the likely impact of two different conditions on her decision-making, these being the delusional disorder (persecutory subtype) diagnosed by myself, and mild neurocognitive disorder diagnosed by Dr [H].  I wish to emphasise that the opinions expressed below relate entirely to my own diagnosis.  Whilst not disputing the diagnosis made by Dr [H], I do not suspect that [N]'s cognitive diagnosis is either necessary or sufficient to explain her behaviour in the conduct of her legal matters, either alone or in combination with the diagnosis of delusional disorder.  In other words, the opinions … would stand, in my view, in the absence of a cognitive diagnosis[.]

    [49] Dr M1's Report, 20 June 2021.

16. Dr M2 is a psychogeriatrician and neuropsychiatrist to whom N was referred by Dr A.  A copy of his letter to Dr A of 22 June 2023 is in evidence.

17. Dr M2 saw N on one occasion for a second opinion at the request of Dr A.  He conducted the Addenbrooke's Cognitive Examination (results were within the normal range) and documents a discussion regarding the litigation with N.  He did not have access to any of the collateral history from any source other than N.  Dr M2 concluded:[50]

    [N] has no evidence of an underlying neurocognitive disorder.  Her cognitive assessment today was within normal limits for her age group and indicated that she would have no difficulties in comprehending more complex matters or instructing a solicitor.  Although her concerns about her brother were intense and frustrating for [N], I did not feel they had the characteristics of delusional beliefs.

    [50] Dr M2 Report, 22 June 2023.

18. Dr G is a general practitioner whose letter to a trustee company of 19 December 2022 and completed form regarding testamentary capacity dated 29 November 2021 have been filed by N.  Dr G indicates on the latter document that N has been a patient of the practice for 14 years.

19. Dr G's letter of 19 December 2022 is brief, and states that:[51]

    [N] passed the legal test for testamentary capacity for decision-making regarding her will.

    1.She understood the nature of the will and what it does.

    2.She understood in general terms the value of her estate.

    3.She nominated her daughter as the relative with a moral claim to her will.

    4.[N] had considered the claims of relatives and others.

    5.[N] is free from delusions or mental defects.

    [51] Dr G letter to trustee company, 19 December 2022.

20. There is no evidence that Dr G had any information other than that provided by N to inform her assessment.

21. Dr K is a functional medicine practitioner in the US, an excerpt from his report of 13 November 2018 was filed by N within her closing submissions on 19 December 2024.  It reports a mental status exam score of 30/30.  It says, 'There appears to be a stress-induced forms [sic] of cognitive decline that may play a contributing role to future cognitive impairments'.[52]  I give this little weight given I cannot see the rest of the report, and there is no indication that Dr K had any collateral history.

    [52] Summary report of Dr K (excerpt), 13 November 2018, folio 196 on matter GAA/5395/2022.

22. I am satisfied that the conclusion of Dr A and Dr M1, once provided with the collateral history (and in Dr M1's case documentary evidence including the letter of R), that N suffers from a delusional disorder, persecutory type deserves to be given great weight.  They are both highly qualified and experienced consultant psychiatrists who have had the benefit of meeting N on multiple occasions over the last five years.

23. N submits that M's provision of R's letter, M's own observations and transcript of interactions between N, M and legal representatives to Dr M1 is unfair.  N states:[53]

    To be able to get the offer approved by the court she framed me with incapacity when she got me tested by [Dr M1] so she could use it in court to exclude me from the settlement process and get her secret settlement … approved by the court.  Given that he did not find any incapacity that she could use to achieve her purpose, she lied to him by saying that sending his report to me was illegal.  She then started lobbying him to get him to change his report.  And it was with the second report that she went to court and got her secret settlement approved.  This even though we had a written agreement to make sure she could not settle my case without consulting with me by using the Litigation Guardianship that she had obtained by deceiving the court in 2019[.]

    [53] Submission of N titled 'My response to [M]'s affidavit' filed 3 November 2024.

24. I do not accept that the provision by M of information to Dr M1 was unfair.  Where an important counter-narrative and evidence from independent third parties (such as the letter of R) are of critical importance of understanding whether or not there is a false belief (as identified by both Dr A and Dr M1), the provision of that material is essential diagnostically.  M is an experienced solicitor, and her affidavit is sworn evidence before the Supreme Court.  M acknowledges her obligations as a legal professional and stands by her statements as 'truthful and accurate'.[54]  I accept her evidence.

    [54] Closing submissions of M, 19 December 2024.

25. Dr M2 met N once and had no collateral history available to him.  As a result, I give his opinion less weight than those of Dr A and Dr M1.

26. Dr G had no collateral history available to her and was assessing N in relation to her capacity to execute a will.  I therefore do not consider her letter to be evidence in relation to whether or not N has a delusional disorder, persecutory type affecting her approach to litigation.

27. I am not satisfied that N has a mental disability for the purposes of the GA Act due to mild cognitive impairment (sometimes characterised as early dementia). Dr H has performed the most comprehensive battery of cognitive tests, and is eminently qualified to make the diagnosis, however the deterioration in N's processing speed from an estimated average to superior range down to a low average to average range, although it may have diminished from her previous ability, has not led to an impairment in her day-to-day function outside the litigation. Dr M2, Dr K, Dr A and Dr M1 all note N's preserved function on less comprehensive cognitive screening tools.

28. I am satisfied, and I find, that N does have a mental disability in the form of a psychiatric condition.  I am satisfied that Dr A and Dr M1 are best placed to assess this, and they reached consensus at the hearing on 4 November 2024 that N suffers from a persecutory delusional disorder. I accept their evidence and I so find.

Does N's mental disability lead to her being unable to make reasonable decisions in relation to some or all of her estate in Western Australia?

1. I am satisfied on the balance of probabilities and I find that N has a mental disability and that there is clear and cogent evidence of that before me as explained above.[55]  The question is, how does that affect N, and is it to the extent that it rebuts the presumption of capacity?

   [55] GC and PC [2014] WASAT 10 [36].

2. In FY the Full Tribunal stated:[56]

   … [a]n individual's ability to make reasonable judgments in respect of their estate requires that they have, amongst other things, the ability:  to understand the need for, and sources of, income available to them; to understand the value of any income received relative to items of expenditure; to identify and calculate necessary expenditure for day to day living, together with expenditure for longer term financial objectives and discretionary items; to devise a budget so as to be able to live within their means; to identify and to assess the financial implications of particular items of expenditure or of financial decisions …'. (Emphasis added).

   [56] FY (n 26) [55].

3. Dr A stated:[57]

   … in terms of determining [N]'s capacity to give instruction, if there is a diagnosis of a paranoid disorder, that would be sufficient to invalidate her competence without having to worry about whether there's any very subtle cognitive difficulties that might be revealed on neuropsychological testing.

   [57] ts 41, 4 November 2024.

4. The letter of R (N's former solicitor) to N details her concerns on 5 December 2018 about N's ability to provide clear instructions and receive and accept advice.  R says N's poor memory, lack of comprehension, and 'paranoia that everyone is out to get you or take advantage of you' impacts on her ability to litigate and provide instructions effectively and efficiently.[58]

   [58] Letter of R (n 29).

5. R states:[59]

   … time was spent unproductively to repeat advice and revisit issues which were discussed time and time again … Meetings were long because I had to revisit topics and issues because you didn't recall the conversation or prior advice or you simply disregarded what was said.  You would focus on one statement or word and not hear or absorb anything that would follow, particularly if it was something you disagreed with or it did not support your thought process[.]

   [59] Ibid.

6. In an email to N dated 17 July 2019, M declines to act directly as a solicitor for N (rather than as litigation guardian, next friend and/or limited administrator) as she believes N is not able to make decisions when it comes to the litigation, noting:[60]

   Over the course of our extensive communications I have personally witnessed:

   •the difficulties you experience in being able to understand and retain explanations;

   •address or stay on topic;

   •have mental flexibility in applying consideration to the issues at hand;

   •evaluate the consequences of options in decision making;

   •make decisions that can be relied upon to remain stable.

   [60] Email of M to N, 17 July 2019, Attachment MCA-6 to the Affidavit of M as Next Friend sworn 17 July 2024 in the Supreme Court matter.

7. In a letter to N of 22 July 2019, the managing partner of R's law firm refers to their action on the basis of letters of engagement and costs agreements over the previous two years.  He writes, inter alia:[61]

   Throughout all our dealings, we have rendered accounts to you and provided detailed itemisation of accounts when requested, often multiple times.  The number of attendances on you was great, the duration of those attendances was extensive and through no fault of our own repetitive, and your instructions were manifestly deficient throughout.  Your interactions with us and your unwillingness to receive and act on advice, hindered the efficient and orderly conduct of your matter at each stage.  You have yourself to blame for this, not us. (Original emphasis).

   [61] Letter of R's managing partner, 22 July 2019, Attachment MCA-7 to the Affidavit of M as Next Friend sworn 17 July 2024 in the Supreme Court matter.

8. The outstanding costs at this point were $51,201.56, and N was put on notice that recovery proceedings would be commenced if this was not paid within 11 days.

9. M's letter of instruction to Dr M1 of 12 May 2021 reports her observations of working intensively with N for two years to attempt to resolve the issues N had previously tried to resolve over 10 years, including over 800 hours of work including reading and responding to N's correspondence, and over 100 hours of direct conversation with N.  M details N's allegations of fraud, misconduct and wrongdoing such as being cheated or financial records being 'cooked' which without investigation appear possible.  M states that their investigation has subsequently revealed those beliefs to be false, but that N persists with her assertions despite being shown evidence to the contrary.  M states '[N] appears not to take in or process information that challenges her asserted persecutory beliefs; in spite of long periods of explanation there appears to be no recall of much of what was explained'.[62]

   [62] Letter of M to Dr M1, 12 May 2021, Attachment MCA-12 to the Affidavit of M as Next Friend sworn 17 July 2024 in the Supreme Court matter.

10. M then details N's response to having her beliefs challenged as making multiple allegations of professional failures including 'representatives not listening sufficiently, not investigating sufficiently, not making demands or threats to the other party that she believes should be made, not doing enough to find wrong-doing to improve her bargaining position, being unduly influenced by the other party, ulterior motives behind advice and being biased towards settlement'.[63]

    [63] Ibid 2 - 3.

1. M details N's threats to make complaints about the other parties to regulators even when advised there is no basis for it, it is unmeritorious and contrary to her own interests.[64]

   [64] Ibid 4.

2. M notes N's allegations against previous lawyers and accountants in the context of the breakdown of those professional relationships.[65]

   [65] Ibid 9.

3. M's closing submissions include the following observations:[66]

   11.While I concur with evidence before the SAT that [N] is intelligent and capable of managing her day-to-day activities, her capacity to process and understand information related to her legal and financial affairs is significantly impaired.

   a.False conclusions are made by [N] on the facts she appears to incorrectly filter and store in her memory and those that are correct.  I have observed [N] is unable to distinguish her opinions from fact and which she states as conclusions alleging these are factually supported when they are not.  These include allegations of fraud, and wrong doing and even events that she asserts took place that didn't, such as alleging I was threatened to be sued, and that the content of material covered by confidentiality agreements with the … family included evidence of fraud uncovered by our forensic analysis. These beliefs have no basis in facts and are false.

   b.[N]'s views which drives her self harming conduct, are not supported by the evidence before the Tribunal, or the evidence that my firm considered.  [N]'s views indicate fixed false beliefs and patterns of behaviour, such as her extreme dissatisfaction with professionals who have advised her, including solicitors and accountants.  This is also indicative of her lack of capacity to make sound decisions. [N] has shown a pattern of rejecting advice, contesting costs, and referring professionals to regulators.  This pattern also includes complaints about a magistrate and a tribunal member. These behaviours demonstrate an inability to integrate professional advice into her belief system.

   c.High risk is created for an individual who is intelligent and articulate and yet subject to delusional thinking of a legal and persecutory nature.  These beliefs in [N] have a history of persisting in her mind and expressed themselves through a commitment to persistent litigation and for retributory regulatory complaints against her family[.]

   [66] Closing submissions of M, 19 December 2024.

4. M has also provided to Dr M1 (and reproduced in her sworn affidavit to the Supreme Court) what are said to be excerpts of transcripts of conference calls between N and her legal advisers on various dates in 2020.[67]  The time locations in the recording are stated where available, but there has been a decision not to provide the full transcript for context (M observed that one of the conference calls went for 12 hours straight and every conference went for hours),[68] which N has observed and says calls into question the veracity of these records.[69]  They have also been annotated by M indicating how she says they should be interpreted.

   [67] Attachment MCA-12 (n 63) 11 - 52.

   [68] ts 61, 4 November 2024.

   [69] N's final submission filed 19 December 2024, folio 171 of matter GAA/5395/2022, Chapter 3, pages 34 - 36.

5. I have given weight to the contemporaneous records of professionals which appear to be in their complete, original form over any documents provided by any party which are not.

N's evidence

1. N submits that all her concerns are based on fact in her extensive submissions.

2. I note particularly the correspondence filed by N from her accountants in 2012 (P) and 2013 (R1) and extracts from emails in 2013 said to be from R1 and separately a third accountant  (A) (unfortunately these latter documents have been heavily annotated by N and cut and pasted into one document losing all the surrounding confirmatory details regarding the date and parties, so can be given less weight than the reports from P and the letters from R1 which appear to be in their original state).[70]

   [70] See comments at [90] supra; the email extracts mentioned are found in N's final submissions filed 19 December 2024, folios 194 and 195 on matter GAA/5395/2022.

3. The first accountant P reports N recruited him via a Gumtree advertisement to assist her in understanding her financial position.  He noted her PhD is in Sociology and remarks 'as is common with people similarly qualified, the reality and commerciality of business and family transactions are not readily understood or appreciated'.[71]

   [71] Report of P, 22 December 2011, para 1.

4. P reports that 'the trust deeds preclude any beneficiary from having access to the accounts and to the underlying decisions and facts considered when making the annual distribution of income to the beneficiaries'.[72]  Notwithstanding that, P sought access to balance sheets, N's beneficiary accounts for each trust, N's capital and current accounts for each partnership, and details of disposal of assets giving rise to capital gains, specifically those 'backing amounts duly claimable by [N] and not paid to her in any given year'.[73]  These were not provided, and P states 'until and if I ever see the accounts I cannot form anything other than a suspicion'.[74]

   [72] Ibid, para 3.

   [73] Ibid.

   [74] Ibid.

5. P recommends seeking legal advice, and concludes '[n]othing is going to happen, and nothing is going to disappear, and nothing can reduce your final entitlement whatever that works out to be'.[75]

   [75] Ibid, para 8.

6. In a supplementary report, P observes: 'to answer this with any degree of accuracy requires information that we do not have …'.[76]  Additionally he writes '[t]rustees who continue with this modus operandi are either ignorant, ill advised, foolish, a combination of some or all of these.  Many trusts have finally fallen through an aggrieved beneficiary deciding that enough is enough and demanding through the court the payment of their present entitlements'.[77]

   [76] Report of P, 30 October 2012, para 5.

   [77] Ibid.

7. P had recognised and advised N that the trusts were discretionary trusts.[78]  He noted in N's father's will that her father wrote 'I declare that the property owned by the trusts … is currently treated as being beneficially owned by … [N] 7%...'. he [sic] then expresses a wish in respect of his 21% share, your entitlement there is 3.75/21'.  P stated that this was 'an interesting variation as it is not mentioned as a wish of your father'.[79]

   [78] Report of P, 2011 (n 71), para 2.

   [79] Ibid, para 4.

8. N does appear to have recognised and understood that the discretionary nature of the trusts meant there was no legal right to a fixed percentage.  This is shown in her correspondence with a family member (undated but referring to her father's death as being six and a half years earlier, so I infer written in 2016 or 2017) where she says, 'all baba's assets were in discretionary trusts and fully under S's control.'[80]  S is a brother of N, and a party to the Supreme Court proceedings.  N expresses the view that her father (baba) did not understand the impact of this trust structure stating 'leaves no doubt in my mind that baba was not aware that by putting everything in trusts he would lose control of his assets.  The fact that in his correspondence with me he refers to the number of my 'shares' is another indication that he assumed all along that we all had shares and he could leave his own shares to whomever he wished'.[81]

   [80] N letter to B1, undated, filed 19 December 2024, folio 186 on matter GAA/5395/2022.  This is referred to in N's final submissions (n 69) as a letter to S's wife written in 2017 - see comment in N's 'final comments' in folio 171, GAA 5395/2022.

   [81] Ibid.

9. N then explains that her accountant P told her he had spoken with S, and would be given access to the documents on condition that they were not shown to N.  She alleges that P subsequently travelled to Perth to assist S, compromised N's tax returns and refused to breach S's confidence and provide the records to N when she terminated his employment.  N alleges S threatened that if she reported P to the regulatory body, she would lose her inheritance.[82]

   [82] Ibid.

10. Both the email extracts purportedly of second accountant R1 and separately third accountant A to N and the correspondence between R1 and the accountants for the trusts demonstrate an ongoing desire by the accountant working for N to get access to documents from the trusts to investigate N's entitlements and tax obligations.  There is evidence of frustration, for example 'We note from your recent response that you conveniently seek to ignore or deflect from your professional and ethical responsibilities … [i]n dealing with these matters … what communications did you provide to [N] in respect of "conflict of interest"?'[83]

    [83] Letter of R1 to the trust accountants, 27 May 2013, folio 190 on matter GAA/5395/2022.

11. Given the challenge for N's accountants in accessing the documents that would allow resolution of whether her rights had been infringed, and some of the commentary, it is understandable that N at this point (2013) might feel suspicious that something was being hidden from her regarding her financial position.

12. However, it is uncontentious that M was able to get access to the relevant documents back to 2006 and that F, who is both a tax accountant and a barrister, underwent an extensive review of these, considering the multiple concerns held by N.  The time taken to conduct this forensic accounting work was significant, costing in the order of $250,000.[84]  M states F's comprehensive advice to N however made it clear that there was no legal basis for the 'leverage' in anything she alleged or sought.[85]  The independent barrister and former Federal Court Judge briefed by both M and N concluded '[s]everal of the claims I have identified have little prospects of success.  Others will be difficult and expensive to establish.  Clearly it would be in [N]'s best interest if the claims could be compromised on reasonable terms'.[86]

    [84] Final Submission of N (n 69) Chapter 1:  Confidentiality clause and the steps [M] took following the threat to impose a bad settlement on me before resorting to secret settlement, folio 171 matter GAA/5395/2022.

    [85] Affidavit of M as Next Friend sworn 17 July 2024 in the Supreme Court matter, para 39; Letter of M to N 25 February 2022 (n 2), attached to folio 44 of GAA/5395/2022, paras 35 - 36.

    [86] Advice of independent barrister (n 3) attached to folio 44 of GAA/5395/2022, paras 71 - 72.

13. N's submissions demonstrate that she has been unable to let go of the suspicions held by her accountants in 2011 - 2013, despite the fact that the documents they were seeking have now been disclosed and subjected to forensic analysis by F.[87]

    [87] N's final submission filed on 19 December 2024, Folio 171 of matter GAA5395/2022, (n 69); Chapter 1.

14. She has also been unable to understand that the best-case scenario 'exit calculation' by F was a starting position for negotiation, and not a legal entitlement.  For example, N says:[88]

    [M] realised she had to appoint a new barrister since getting [F] to act as the barrister was not acceptable to me.  She would have thought it was difficult enough for her to convince one barrister to accept just $[x] million as my settlement, let alone two.  Which was why she wanted to extract the name of the second barrister from me, certainly so she could contact him/her beforehand and convince him/her that I was not entitled to more than $[x] million.

    [88] Ibid.

15. And further:[89]

    [S]'s solicitor … claimed at the last SAT hearing that a lot of negotiation had taken place to imply that the [x] million that they had settled my case for behind my back had been reached by hard negotiation.  But the negotiation was for the [x] million that [F] gradually concluded that I was owed, not for the [x] million that my case was settled for.

    [89] Ibid.

16. This is consistent with the reports of solicitors M and R that N will hold onto previous beliefs and be unable to integrate new information that goes contrary to them.  Additionally, N's submissions demonstrate the deterioration of professional relationships with accountants, doctors and lawyers over more than a decade with characterisation of this by N as being due to negligence of the professional, and/or that they have been drawn into a conspiracy through the influence or threats of S.[90]  This is consistent with Dr M1's characterisation of a delusional disorder.[91]

    [90] See for example N's final submission (ibid), Chapter 4 [B]'s submission:  Her or her barrister's attempt to label me as a vexatious Litigant; legal actions I was involved in and why.  N lists four legal cases she has been involved in and six referrals she made to professional regulators about different professionals between 2012 and 2021.  Her characterisation of the merits and outcomes of these stands at odds with those of her daughter B and her administrator M (who is a solicitor).

    [91] ts 18, 4 November 2024.

17. N has been particularly suspicious regarding the non-disclosure agreement or confidentiality clause which is in place regarding the financial records.  The legal representative for the opposing parties in the Supreme Court matter explained as follows:[92]

    It was probably one of the most complex settlement negotiations I've ever been involved with.  Although it started with the family provision claim, that was easy.  There were - I mean, the level of financial records that were sent to [M] was - it was exhaustive, and it was apparent that [F] had gone through every single one of those with a very fine-toothed comb, and we had letters with reams of questions in them that we were at pains to answer each one.

    There were lots of questions around, you know, tax issues to do with the financial statements and, initially, our client felt that that was really out of the scope that was originally agreed in terms of what would be looked at.  But [M] did point out to us that if we withheld anything, then that would be seen as suspicious, and so one way we got around that was that we provided additional information on the basis of a confidentiality agreement, because it was sensitive commercial information.  And I think that all of that was provided, but I cannot emphasise enough how many hours over the telephone we spent with [M], with [F], trying to answer all of the queries that they had and to come to a resolution.

    [92] ts 58, 4 November 2024.

18. Dr M1 expressed his view regarding N's likely reaction to a settlement that went against her wishes thus:[93]

    … if [N] perceives that steps are actively being taken by those who represent her that are counter to her wishes in this matter, she will react by taking steps to have her representatives removed in order that such steps can be negated.

    In terms of whether such a response on [N]'s behalf would be harmful to her best interests, again the answer is yes.  My understanding of the progress of this matter is that [N] has spent very significant amounts of money in the pursuit of her legal claims over many years, and that despite extensive efforts and investigations on the part of those she has engaged over the years, she has not achieved an outcome that is acceptable to her.  This would appear to be because many of her claims cannot be objectively supported by evidence.

    My opinion is, therefore, that her likely course of action, outlined above would, if pursued, not be in her best interests as such a response would place her at further significant financial risk.  It is my opinion that such a response would be predicated on her lack of capacity to make reasoned decisions in relation to the current matter due to her inability to accept as true certain basic relevant facts that are necessary to the formation of an informed decision[.]

    [93] Dr M1 report of 20 June 2021.

19. Given N's reaction to being told of the terms of the settlement, including her applications to both the Supreme Court and SAT, and the allegations against M included in the application for review of the administration order, Dr M1's opinion was prescient, and I find that N's actions demonstrate that her condition is still actively interfering with her ability to make reasonable judgments in relation to the litigation.

20. N has an ongoing belief that M was threatened by S, leading to the settlement being on unfavourable terms to N.[94]

    [94] See for example N's application (n 6) and N's final submissions (n 69) Chapter 1 Confidentiality clause and the steps [M] took following the threat to impose a bad settlement on me before resorting to secret settlement.

21. N's daughter B explained how she thinks this belief started:[95]

    … I explained the importance of the confidentiality agreements that she was bound by, via her administrator, and that the settlement deed further reinforced that she's bound by those confidentiality agreements, by virtue of the original agreements as well as the settlement deed.  And that because there was, prior to the diagnosis being made that she has got persecutory delusions and querulous paranoia, while [M] was still acting in reliance on my mother having legal capacity to sign engagement agreements, with the engagement agreement provided my mother had to be informed at all times and consulted.

    And based on that, [M] released to my mother correspondence with the other parties, that related to the confidential information.  And so, I explained to my mother that that means that by virtue of her having a hold of that material, you know, there is a risk to herself if she goes and uses it in breach of the settlement deed.  And if she does do that, there's liability consequences, and that the family can obviously sue for breach of confidentiality.  They can sue for breach of settlement.  They could sue [M].  They could sue her.  Somehow, my mother has interpreted that to mean that they've threatened to sue [M], which is not what I said.

    …

    But that's what happened.  And she has interpreted - and she believes that the correspondence that she did receive from [M], which has sensitive material in it, my mother's view is that it relates to - it somehow, you know, discloses that there was something unlawful that had occurred.  And I think if [M] was asked, she would confirm, and she has put in writing, there was never a finding of anything unlawful that had occurred at any stage.

    …

    So all of the presumptions my mother is making as her stated foundation for wanting to sue [M] for negligence, are all founded on assumptions she has made that are actually factually incorrect[.]

    [95] ts 79 - 80, 4 November 2024.

22. If I were to accept N's understanding of the case as factual, I would have to accept that (at least) accountants P and A, lawyers R, M and F, the barristers who provided opinions on the settlement to the Supreme Court and the Supreme Court itself had either been corrupted or hoodwinked by S and the other parties, and that R and M had for some reason lied in their observations recorded in the letters they wrote to N expressing their concern that she did not have capacity to instruct.

23. I find that it is far more likely on the balance of probabilities that N has a delusional understanding of the reality of her situation.

24. I am satisfied, and I find, that as a result of her mental disability, N is unable to make reasonable judgments regarding the litigation and the financial consequences of settlement.  The presumption of capacity is set aside because N has been shown to be unable to accept the outcome of the forensic accounting and the legal advice consequent to it, as it goes contrary to her persecutory beliefs.

If so, is there a need for me to appoint an administrator, or is there any less restrictive alternative that will be sufficient to protect N's interests?

1. There is no alternative to appointing an administrator.  N's lack of insight, reluctance to trust her professional advisers and persecutory delusional disorder means that she is at ongoing risk of attempting to commence unmeritorious litigation or regulatory complaints.  She is also at risk of expending the settlement funds on legal fees and, if she upsets the settlement, causing extraordinary financial loss to herself.[96]

   [96] Deed of Settlement 15 October 2021, attached to folio 44 of matter GAA 5395/2022, paras 8 - 11; ts 73, 4 November 2024.

1. I note the current costs (which will be subject to Supreme Court review) amount to almost a quarter of N's multi-million dollar settlement.

If there is a need, who should be appointed?

1. M submits that N's daughter, B, should be appointed, due to her 'deep knowledge of [N]'s complex legal and financial affairs', the fact she would not charge, and 'has always been a protective force in [N's] life'.[97]

   [97] Closing submissions of M, filed 19 December 2024, folio 167, paras 13 - 14.

2. B is Co-Trustee of the Life Trust managing Tranche 3 of the settlement fund under the agreement endorsed by the Supreme Court.[98]

   [98] Ibid, para 14.

3. M would be willing to continue as limited administrator if SAT were not willing to appoint B, as an alternative to the appointment of the Public Trustee.

4. M submits that the appointment of the Public Trustee would not be in N's best interests given the complexity of the situation 'which would make it difficult for someone unfamiliar with the details to manage'.[99]

   [99] Ibid, para 13.

5. B has indicated that she is willing to be appointed as sole administrator, or alternatively jointly with the Public Trustee, 'on the basis of her longitudinal and close knowledge of her mother's finances and legal affairs, her preparedness to forego costs, and her ability to maintain a level of rapport with her mother and communicate with her'.[100]

   [100] Closing submissions of B filed 19 December 2024, folio 217 on matter GAA/5395/2022.

6. N expresses a belief that B tricked her into having the testing that led to the initial appointment of a next friend and limited administrator by '[s]caremongering me about the risks of going to the witness box'.[101]

   [101] Final submissions of N (n 69) Chapter 5, page 65.

7. N alleges that in 2014 when she and B were negotiating with S about a buy out for N, and he offered an amount only 10% less than the amount in the final settlement in the Supreme Court matter, B was influenced by S to recommend she accept the offer (N rejected it).

8. N characterises B's involvement thus 'you can see that [B]was involved in every step to help [S] doing what he wanted to do while at the same time not wanting me to be too disadvantaged.'[102]

   [102] Ibid 67.

9. N recognises that B accepts M's view that she is not owed anything more (and goes on to comment 'even though [F] found in 2020 that I was still owed close to another 2 million for my share of (a particular trust)'[103] demonstrating her ongoing inability to appreciate the discretionary nature of the trust in question).

   [103] Ibid.

10. N blames B for 'taking away [her] agency'.[104]

    [104] Ibid 70.

11. During the hearing, N said she would prefer the Public Trustee to be her administrator, but also '[B] can consult if she wants to.  I mean, she can help if she wants to, and if I ask her to.  Not for her to decide anything about my case, because I know where her priorities are, and I know that she has, you know, she has not provided completely, you know, truthful advice'.[105]

    [105] ts 95, 4 November 2024.

12. N went on to say: [106]

    [B], I guess if they want to consult, because at least I know that she does want the finances to be protected.  She's not, you know, working to sort of benefit from it financially.  [M] would.  So I don't want [M] to be consulted.  But if [B] needs to be consulted, maybe they can.  But I want not for [B] to contact them, but I want them to contact [B] if they need to.  

    Because [B] can also sort of push for a certain, you know, by calling and asking for this or that.  She has done that in the past, and I don't want her to do that.  I just want to, you know, if she's needed to be consulted, you know, they can ask her[.]

    [106] ts 96, 4 November 2024.

13. Further, N said:[107]

    I just hope that I won't be under any - any - actually - control by anyone else.  That's what my position is.  But, anyway, I - I understand.  And - and I do, as I said, I do want to - if - if I want to, I want to consult with [B].  If [B] is not going to, actually, sort of - let's say she wants to make a decision, let's say 500,000 of the money, and she says, "let's invest it in this - in this investment", right?

    But that investment may be with other people, and I may not want to be partners with anybody.  I just want to have something which belongs to me …

    I'm not concerned about if - if - for example, if [B] is appointed, I'm not concerned about her spending - you know - sort of, money, without - you know - but what I am concerned about is where she's going to invest it and in whose name.  I want it to be in my name and I want to have a say in what investment[.][108]

    [107] ts 116, 4 November 2024.

    [108] ts 118, 4 November 2024.

14. An administrator must be a person over the age of 18[109] who is willing to undertake the role, and whom the Tribunal finds will act in the best interests of N[110] and is otherwise suitable.[111]  The Tribunal must take into account:

    (a)the compatibility of the proposed appointee with that person and with the guardian (if any) of that person's estate;[112]

    (b)the wishes of the person in respect of whom the application is made;[113] and

    (c)whether the proposed appointee will be able to perform the functions vested in them.[114]

    [109] GA Act, s 68(1)(a).

    [110] GA Act, s 68(1)(c), s 70.

    [111] GA Act, s 68(1)(d).

    [112] GA Act, s 68(3)(a).

    [113] GA Act, s 68(3)(b).

    [114] GA Act, s 68(3)(c).

15. I am satisfied that B is over the age of 18 and will make decisions in the best interests of N.  I accept her evidence that she has taken every action trying to support her mother, and that it is with reluctance that she has provided her evidence, knowing that it is likely to have a destructive effect on their relationship.[115]  There is no guardian.

    [115] Statement of evidence of B dated 28 October 2024 (n 35), folio 145 on matter GAA 5395/2024, paras 3 ­ 10.

16. I am satisfied that B will be able to perform the functions that will be vested in N's administrator, because of the evidence of M of B's beneficial involvement and knowledge in the Supreme Court litigation,[116] and the fact that B is named in much of the correspondence from professionals lodged in the proceedings, demonstrating her ongoing involvement with the consent of N across many years.[117]  N's own words show her concern for B being negatively impacted by the role she was undertaking in trying to help her mother resolve her differences with S over many years.[118]

    [116] Summary statement of M, 28 October 2024, para 23.

    [117] See for example the letter of R (n 29).

    [118] See for example the letter of N to B1 (n 82).

17. I therefore have to consider whether B's appointment should be made against the expressed wishes of N.  I note that N is absolutely opposed to the appointment of M and views her as having a conflict of interest that would preclude her appointment.[119]

    [119] ts 94, 4 November 2024.

18. In the circumstances of the case, and taking into account B's supportive involvement in a number of the matters detailed in her statement of evidence[120] and responded to by N in her response to B's submission,[121] I am satisfied that B is in the best position to fully appreciate the complex history, N's condition, and N's priorities in life outside the litigation.

    [120] Statement of evidence of B (n 35).

    [121] N's response to B's submission filed 1 November 2024, folio 149 on matter GAA 5395/2024.

19. B has for many years been involved informally, attending meetings, mediations and hearings with her mother or in her stead, attempting to find professionals who can work with N, and spending hours explaining to N, according to her evidence, which I accept.[122]  I found B to be candid and thoughtful in her oral evidence, and very concerned for N's well­being.  She understood the legal issues and the risks to N of her desire to overturn the settlement.[123]

    [122] Statement of evidence of B (n 35).

    [123] ts 76 - 81, 4 November 2024.

20. No other person will be in a position to do this, or motivated to do so compassionately and without cost to N.

21. As Dr A said, although N was unambiguously negative in her opinions of M and S, '[N] has been more ambivalent in discussions about her daughter.  She said to me that [B] is - she's upset with [B], she's cross with [B], she doesn't agree with things that [B] has done, but, at the end of the day, [B] is her daughter and she still loves her.  So I think she doesn't lump them both in the same bucket, as it were'.[124]

    [124] ts 47, 4 November 2024.

22. N also expressed comfort in the oversight function of the Public Trustee under s 80 of the GA Act if B was appointed.[125]

    [125] ts 117 - 118, 4 November 2024.

23. Despite N's wishes, I find that it is in her best interests to appoint B, and I hope that N will be able to accept that outcome and that it will not destroy their relationship, given the support B has provided historically to N, and N's acknowledgement that she is not worried that B would spend her money inappropriately.

24. If that hope is not fulfilled, and B finds the role unsustainable, then she can make an application for review.

What are the terms that will be least restrictive on N's freedom of decision and action but still be sufficiently protective?

1. N's submissions[126] demonstrate that the chronology of legal and regulatory actions set out in B's statement of evidence[127] and M's affidavit to the Supreme Court[128] is not disputed, although N's characterisation of the outcomes and her involvement differs from that of other parties.

   [126] See for example N's closing submissions; Chapter 4 (n 69), pages 38 - 50.

   [127] B statement of evidence 28 October 2024 (n 35) folio 145 on matter GAA/5395/2022, paras 27 - 169.

   [128] Affidavit of M as next friend (n 87).

2. These include the action in relation to the family, but also separate matters against a neighbour (2014 - 2016), a locksmith (2012), and an accountant (2013).

3. N also details complaints to regulators about Dr M1 (2021); Dr H (2021); two different lawyers (2014 and 2015), the director of a pain clinic (2015 - 2016) and a GP (2017).

4. N has indicated in her application[129] and during her oral evidence[130] an intention to take further action in relation to the settlement and against M if the administration order is revoked and she gets access to the Supreme Court documents.

   [129] N's application (n 6), 13 December 2022.

   [130] ts 121, 4 November 2024.

5. Dr A advised that he has:[131]

   … never seen somebody with a late life paranoid disorder, who was untreated, who had their symptoms remit unless they developed a profound dementia, in which case they forgot all about them.  So I don't - I don't see a likelihood of these symptoms altering if they're present.

   … They might sometimes remit with specific anti-psychotic treatment but my - my interactions with [N] would tend me to feel that she's unlikely to want to take such medication, and there's no guarantee that it will always fix a problem of this nature.

   [131] ts 5, 4 November 2024.

6. Dr M1 stated:[132]

   … one can only go on past performance, but we seem to have a 10-year at least history of various professionals being engaged.  And when they don't provide the opinion that [N] wishes, she then vents her frustration on them and a cycle of litigation against those practitioners occurs, or a refusal to pay fees.  But I would imagine that that pattern would continue into the future as well, were she allowed the opportunity to litigate as any other member of the community might be allowed'.

   [132] ts 37, 4 November 2024.

7. I am satisfied, and I find, that N's mental disability leads to an ongoing inability to make reasonable judgments about litigation and regulatory complaints that goes beyond the matters relating to her family.

8. B expresses concern that N, if given access to the settlement funds, will expend them in unmeritorious legal action.[133]

   [133] Closing submissions of B filed 19 December 2024, folio 217 on matter GAA/5395/2022, pages 10 - 11, para 38; pages 14 - 15, paras 55 - 57.

9. Dr M1's evidence supports that view:[134]

   [Legal representative for B]:  Do you think, then, it's necessary, to protect her against herself, to have someone else with control to stop that kind of dissipation of her resources?

   [DR M1]:   I do.  Whether that's possible through ongoing litigation, guardianship, or having her declared a vexatious litigant, which might be an option in some jurisdictions.  But yes, she needs to be protected against spending her money on legal action against whomever.

   [Legal representative for B]:  All right.  Thank you.  I think that assists in terms of addressing the psychiatric issues, because I take it you're saying that because of her querulous paranoia/litigious paranoia, and also because of this ongoing absorption which you describe in psychiatric nomenclature as a delusional disorder of the persecutory type.

   [DR M1]:   Correct.

   [134] ts 87, 4 November 2024.

10. No-one asserts that N is incapable of managing her day-to-day funds and expenses.  B suggests that an order which prevents N controlling the capital of the settlement funds that she would otherwise control (for example the funds from Tranche 1 and 2 which were at the time of the hearing in the Trust Accounts of M's firm consistent with the Supreme Court Orders)[135] but allows N to manage the income might be sufficient for her protection.

    [135] Supreme Court Orders of 13 December 2021 (n 5), attachment to folio 44 on matter GAA/5395/2022.

11. The history of legal action in relation to the locksmith and some of the lawyers, accountants and doctors suggests that N has used her income in the past in ill-advised action, and has also been unwilling to pay costs she has incurred in seeking services of professionals.

12. I note that the N's legal costs in the settlement were secured by a payment of $700,000 held in M's firm's trust account and that they will be determined by the Supreme Court with B as intervenor.[136]

    [136] Ibid.

13. I have jurisdiction in relation to N's estate in Western Australia which consists of:

    (a)The moneys from Tranche 1 and 2, which was held in M's law firm's trust account pursuant to the Supreme Court Orders;[137]

    (b)The ongoing Supreme Court action; and

    (c)Any further litigation or regulatory action N might contemplate taking in Western Australia, including that which she has stated she intends to take in her application.

    [137] The Supreme Court Orders state that M 'to the extent that the Limited Administrator does not already have sufficient authority under the terms of the order made by the State Administrative Tribunal dated 12 May 2020' is expressly authorised and appointed to, inter alia, retain the funds from Tranche 1 and Tranche 2 in her firm's trust account 'pending further order of the Court'.

14. Tranche 3 is being paid into a Life Trust in instalments, the last of which is scheduled for 30 June 2027.  

15. I recognise that my revocation of M's appointment as administrator and appointment of B does not alter M's status in relation to any orders made by the Supreme Court.  Any such change will be a consideration for the Supreme Court.

16. In addition, I recognise that the orders I made on 4 November 2024 pursuant to s 74(1) GA Act authorising M as limited administrator to move the Tranche 1 and 2 funds from the non-interest-bearing trust account into an interest-bearing controlled moneys account may be subject to change by the Supreme Court. Although they were made with the consent of the parties, and I believe they were in the best interests of N, it would have been appropriate for the matter to be decided by the Supreme Court rather than SAT given their orders.

17. I am satisfied that all the legal matters and financial assets of N which are currently in Western Australia and sit within the authority of an administrator should fall within that authority.  This is because any capital sitting outside a trust, and the income derived from it, is at ongoing risk of being used in unmeritorious legal and regulatory action to N's detriment.  I make this finding on the basis of Dr M1 and Dr A's evidence regarding the behavioural pattern in persons with delusional disorder, persecutory type, and the historical and ongoing actions of N as set out in her own and others' submissions and the contemporaneous documents of professionals.

18. For those reasons, I am going to make a plenary administration order.  In recognition of B's view that N may be able to safely manage a proportion of her income,[138] I will authorise the administrator to exercise discretion in that regard, but with the ability to terminate any such independent management of income if the administrator determines that is no longer in the best interests of N.

    [138] ts 119 - 121, 4 November 2024.

19. I will include a gifting provision of $2,000 per annum in light of N's significant estate and the fact that I received no submissions in regard to whether N habitually gives donations to charities or buys presents for others.  There is no obligation on N to spend any money on others as a result of this order.  If N is managing her income independently then she can spend that on others at will, and without regard to this limit. However, if B is administering the investment income as well as the capital, she must respect this annual limit on how much of N's money can be spent on others.

Within what period should any order be reviewed?

1. Dr A and Dr M1 gave evidence that delusional disorders of this type are not likely to improve.[139]

   [139] ts 140 - 141, 4 November 2024.

2. Given the risk is ongoing, I find that it is in N's best interests in the circumstances of the case to make the orders reviewable within the maximum time available under the GA Act, which is five years.

3. For those reasons, I make the following declarations and orders.

Orders

The Tribunal declares that the represented person, [N] is:

(a)unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all of her estate; and

(b)in need of an administrator of her estate.

The Tribunal orders:

Administration

1.The administration order dated 12 May 2020 is revoked and substituted with an order in the following terms:

2.[B] of [address suppressed] is appointed plenary administrator of the represented person's estate with all the powers and duties conferred by the Guardianship and Administration Act 1990 (WA).

3.The administrator is authorised, at their discretion, to allow the represented person a trial of managing their investment income.  The administrator may terminate the trial if they form the view that it is no longer in the best interests of the represented person.

4.The administrator is authorised to expend up to a total amount of $2,000 per annum on gifts on behalf of the represented person.

5.The administration order is to be reviewed by 14 January 2030.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.

DR E Marillier, SENIOR MEMBER

15 JANUARY 2025