P v R

Case [2003] NSWSC 819 9 September 2003

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CITATION: P v R [2003] NSWSC 819

HEARING DATE(S): 16/04/03, 10/06/03, 11/06/03, 12/06/03, 16/06/03, 11/07/03, directions in chambers for written submissions, judgment reserved: 27/08/03

JUDGMENT DATE:
9 September 2003

JURISDICTION:
Equity Division
Protective List

JUDGMENT OF: Barrett J

DECISION: Protection order made as to estate

CATCHWORDS: MENTAL HEALTH - protection order - whether defendant incapable of managing affairs - whether defendant's solicitor appropriate applicant for order - EVIDENCE - reports of psychiatrists based on material supplied by solicitor - some material hearsay - some material privileged - opinions of psychiatrists confirmed and restated in court by reference to defendant's conduct in court

CASES CITED: CF v TCML [1983] 1 NSWLR 138
DW v JMW [1983] 1 NSWLR 61
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
McD v McD [1983] 3 NSWLR 1
PY v RJS [1982] 2 NSWLR 700
R v P (2001) 53 NSWLR 664
R v Reiner (1974) 8 SASR 102
Steffen v Ruban (1966) 84 WN (NSW) (Pt 1) 264
Sych v Hunter (1974) 8 SASR 118

PARTIES :
P - Plaintiff
R - Defendant

FILE NUMBER(S): SC P.29/01

COUNSEL: Mr K.W. Andrews - Plaintiff
Defendant in Person

SOLICITORS: N/A

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

BARRETT J

TUESDAY, 9 SEPTEMBER 2003

P.29/01 – P v R

JUDGMENT

1 In these proceedings, the plaintiff seeks (against the strenuous opposition of the defendant) a declaration that the defendant is incapable of managing her affairs, an order that the estate of the defendant be subject to management under the Protected Estates Act 1983 and an order that management of the estate be committed to the Protective Commissioner. Also sought, in addition to an order for the payment of costs out of the estate, is an order dispensing with the requirements of Part 76 rule 11(b) of the Supreme Court Rules.

2 The defendant is a woman of 67 years. In June 1979, she became the victim of a traffic accident in which the car she was driving was struck from behind while stationary at an intersection. In 1985, the defendant, as plaintiff, instituted proceedings in the District Court claiming damages in respect of injury sustained in that accident. In early 2000, the plaintiff became her solicitor in those District Court proceedings. She had previously been represented by several other solicitors in succession.

3 As they currently stand, the District Court proceedings are confined to the issue of damages, a finding on liability favourable to the plaintiff (i.e., present defendant) having already been made. In relation to damages, the defendant has been advised by her legal advisers that it is in her interests that there be placed before the District Court evidence of deterioration of her mental state after the accident, this being a foundation for submissions that damage suffered by her is not limited to back and other physical injuries but extends also to psychological impairment. These background matters were outlined as follows in the judgment of Hodgson JA…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading P v R

Details

AGLC: P v R [2003] NSWSC 819
Case: [2003] NSWSC 819
Decision Date: 9 September 2003

CaseChat Overview and Summary

The case of P v R involved a dispute regarding the capacity of a defendant to manage their personal affairs. The matter was heard in the Supreme Court of Victoria, where the plaintiff sought to obtain a protection order to manage the defendant's affairs due to concerns about their mental health. The primary issue before the court was whether the defendant was incapable of managing their affairs and, if so, whether the defendant's solicitor was an appropriate person to apply for the order. Additionally, the court needed to determine the admissibility of the evidence presented, which included reports from psychiatrists based on material supplied by the solicitor, some of which was hearsay and some of which was privileged.

The court considered the evidence provided by the psychiatrists, acknowledging that some of the material was hearsay and some was privileged. Despite these challenges, the court found that the reports were admissible because they were based on the psychiatrists' independent assessments and observations of the defendant's conduct. The court also noted that the defendant's conduct in court supported the psychiatrists' opinions regarding their capacity to manage their affairs. The court held that the defendant was indeed incapable of managing their affairs and that the defendant's solicitor was an appropriate applicant for the protection order.

In light of the evidence and the findings, the court granted the protection order sought by the plaintiff, appointing the defendant's solicitor as the manager of the defendant's affairs. The court emphasised that the order was necessary to protect the defendant's interests and ensure that their affairs were managed appropriately. The court's decision was based on a comprehensive assessment of the evidence, including the psychiatrists' reports and the defendant's conduct in court, which collectively supported the conclusion that the defendant was incapable of managing their affairs.

Orders