Portal Software International Pty Ltd v Bodsworth

[2005] NSWSC 115

CITATION:	JM v Guardianship Tribunal & Ors [2005] NSWSC 115
HEARING DATE(S):	7 February 2005
JUDGMENT DATE :	28 February 2005
JURISDICTION:	Equity Division Protective List
JUDGMENT OF:	Windeyer J at 1
DECISION:	Appeal dismissed

CATCHWORDS:	MENTAL HEALTH - protected estates - managers - application for leave to appeal decision of Guardianship Tribunal to appoint manager - whether error in Tribunal's fact finding process
LEGISLATION CITED:	Guardianship Act 1987 Protected Estates Act 1983
CASES CITED:	K v K [2000] NSWSC 1052 PY v RJS [1982] 2 NSWLR 700
PARTIES:	JM (Plaintiff) Guardianship Tribunal (First Defendant) Gerry Bristow (Second Defendant) Protective Commissioner (Third Defendant)
FILE NUMBER(S):	SC P45 of 2004
COUNSEL:	P Baker (Plaintiff) M England (amicus for First Defendant) Submitting Appearance (Second and Third Defendants)
SOLICITORS:	P Baker (Plaintiff) Crown Solicitor (amicus for First Defendant) Submitting Appearance (Second and Third Defendants)

LOWER COURT JURISDICTION:	Guardianship Tribunal
LOWER COURT FILE NUMBER(S):	3729 of 2004
LOWER COURT JUDICIAL OFFICER :	Members MacRae, Ovadia and Worth

- 10 -

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

WINDEYER J

MONDAY 28 FEBRUARY 2005

P45/2004

JUDGMENT

1 On 1 October 2004 the Guardianship Tribunal made orders that the estate of the plaintiff (JM) be subject to management under the Protected Estates Act 1983 and committed the management of it to the Protective Commissioner. That order is subject to review within eighteen months.

2 JM appeals against the orders. Under the Guardianship Act 1987 there is an appeal as of right on a question of law. There is an appeal by leave on a question of fact. Insofar as the grounds of appeal raise questions of fact, leave is sought. The Attorney-General provided assistance by briefing counsel to appear as amicus. This was of considerable assistance to the court.

3 The evidence before me included the reasons for decision of the Tribunal, and the written material before the Tribunal, but not the transcript record of the proceedings including any oral evidence. An interim management order had been made on 9 September 2004, but nothing really turns on that.

4 JM was born in 1962. His father died in 1963. He lived with his mother until her death in June 2003. From 1974 on they lived in a rented flat in Hunters Hill. JM still lives there.

5 JM studied law and graduated in Law from the University of Sydney in 1983. He was admitted as a solicitor in 1986 and obtained a masters’ degree in 1992. He has suffered from chronic fatigue syndrome since 1987 and from 1987 until 1992 he spent most of his time in bed. He has improved a little, but he still spends far more time than normal in bed and he has some other health problems. He has never worked. His mother supported him during her lifetime. In 2001 he was granted a carer’s pension. His mother owned a property at Annangrove said to be worth about $800,000 and it appears that her ownership of this property eventually led to cancellation of her pension. After the death of his mother, JM obtained a disability support pension. This was later withdrawn due to his expected inheritance of the Annangrove property but more recently it has been reinstated.

6 The second defendant was the plaintiff before the Tribunal. She is a community worker employed by Gladesville and District Community Aid and Information Services. She originally sought guardianship and management orders, but at the hearing on 1 October withdrew the application for appointment of a guardian. In her application she gave reasons for the appointment of a financial manager. These can be summarised by stating that JM was unwilling to pursue probate in his mother’s estate, that he had no savings, that his occupation of the unit was under threat as tenancy proceedings were on foot, that her centre was providing meals and urgent assistance to pay bills and that JM seemed unable to act so as to better his situation. This was, of course, an application only not evidence.

7 There was evidence before the Tribunal of Dr A R Bowes, a general practitioner at Hunters Hill, that he considered JM suffered from an inadequate personality disorder. He said that since the death of JM’s mother JM had been unable to arrange his affairs and that:

He does not have the life skills to manage life decisions, especially in relation to financial and property affairs. (JM) has been unable to fill out basic forms to apply for appropriate pensions with Centrelink. Basically he exhibits signs of gross self-neglect in terms of basic washing of himself and his own clothing. He is grossly malnourished due to his inability to look after his nutrition.
I totally support the application being made to the Guardianship Board to take over JM’s affairs.

8 Ms Fraser, a barrister acting for JM, referred him to Miss Suzanne Freeman, psychologist, for a report. She had seen a report from Dr Greenway, psychiatrist, who thought that JM possibly had “negative schizophrenia”. A lot of her report was directed towards guardianship matters, but she stated that JM managed his general affairs, paid the rent each month and budgeted his pension money and that she considered that “with appropriate levels of support he is capable of managing his personal and financial affairs”. Dr C.H. Greenway is a specialist psychiatrist. In a report dated 9 August 2004 he said of JM:

Thank you for asking me to see this fascinating man. He is in real difficulty and I suspect that it is a result of an undiagnosed disorder. I suspect that he has schizophrenia, although there really does not appear to be any positive symptoms. However, we are looking at a man who is qualified as a solicitor, but has not done the probate of his mother’s will (she died approximately one year ago) and has also been unable to organize his situation with the Social Security Department. …
He complains of chronic fatigue syndrome, but he states that this dates back to 1992. Prior to that he had graduated from law in 1984 and completed the College of Law in 1986. He managed to get his Masters in 1992, but had a great deal of difficulty doing this. I suspect that what we are seeing is marked psychosocial deterioration and it would be worth a trial of an antipsychotic (second generation) to see if we can help with his negative symptoms. He is a very pleasant man, but really seems to be in a great deal of difficulty.

9 Mr Mulligan is the owner of the flat occupied by JM. He was alerted to some problems by the occupier of another flat in the building in August 2003 who was concerned with the state of affairs in the premises and also concerned about JM’s well-being. On entering the flat to inspect it it became obvious that JM or his mother or both were compulsive hoarders. Newspapers and magazines were stacked two metres high in most of the rooms. He arranged with three companies to move tonnes of paper from the premises, but not all of it. He has wished to sell the premises for some years but had put this off because he knew that JM’s mother was suffering from cancer and was seriously ill. He had asked JM to make some arrangements to move out so that the flat could be sold and various dates were agreed, but were postponed. He took proceedings before the Tenancy Tribunal but they were eventually withdrawn on the basis that JM would take steps to administer his mother’s estate and then arrange to move out. The arrangements were that a fresh application could be filed, not earlier than one month from 12 July 2004 and that a timetable for vacation of the premises would be provided. He said in a letter to the Tribunal that he had taken no further action, pending the outcome of the Tribunal hearing.

10 It its reasons for decision, the Tribunal reviewed this evidence. It referred to oral evidence from JM as to his sickness, to the fact that he received a disability support pension, including a rent allowance which was credited to his bank account and that twice a month he withdrew most of his pension using it to pay rent and for other expenses. It referred to the fact that the telephone had never been connected, that the hot water service had not worked for many years and there were some other problems in the flat. JM told the Tribunal he did not approach the landlord about these problems because he did not want a rent increase. JM said in oral evidence, according to the reasons, that he had not proceeded to obtain probate of his mother’s will because he could not find it. There was about $50,000 owing in land tax on the Annangrove property. There was an insurance policy to pay funeral costs, but these had not been paid. It appears that it was necessary to obtain a grant of probate for that to be done. The reasons go on to say that JM stated that he could make his own decisions, that he planned to arrange the sale of the Annangrove property and purchase accommodation from the net proceeds of sale and invest the remainder. The Tribunal stated that Mrs Bristow said that she had heard about proposals for the obtaining of administration, the sale of the Annangrove property and moving out of the flat before, but that she considered JM did not have the ability to act on his decisions or undertakings. Her organisation could no longer offer support for payment for meals on wheels, the food vouchers and the like. The Tribunal considered the tests in PY v RJS [1982] 2 NSWLR 700, which it stated has been reaffirmed many times. It is not necessary to set this out. It referred to other decisions which to some extent expand on this. It then went on to say:

The evidence before the Tribunal indicates that Mr McDonnell has a diagnosis of chronic fatigue syndrome. He acknowledges that because of this condition he is largely confined to bed during the day. Possibly because of his lack of energy, poor concentration and endurance limitations related to this condition he has been unable to progress his late mother's estate and took no steps to deal with Centrelink's threat to cancel his disability support pension. Nor has he been able to address issues related to his tenancy after being served with a notice of termination of tenancy. Following his mother's death he was not attending to self-care and lost 15 kilos in weight because he was not eating appropriately. This, in turn, exacerbated his condition of chronic fatigue syndrome.

Mr McDonnell obtained a law degree from Sydney University in 1983 and completed a Masters Degree in 1992. Clearly, Mr McDonnell has the intellectual capacity to manage his financial affairs. The evidence before the Tribunal indicated however that he does not currently possess the ability to put into effect his intentions regarding the management of his financial affairs. It appears that this stems largely from his condition of chronic fatigue syndrome which has been exacerbated by grief following his mother's death in June 2003. Mr McDonnell's self neglect and gross hoarding behaviour also suggested Diogenes Syndrome although the Tribunal had no professional evidence to support that view nor did it have any evidence to indicate a diagnosis of schizophrenia as suggested by Dr Greenway. In her report Ms Suzanne Freeman referred to his "psycho social degeneration" which occurred as a result of chronic fatigue, grief and poverty. She also described Mr McDonnell as being a very introverted and reclusive person with a personality style which did not conform to others expectations of "normal" behaviour.

Having regard to evidence given at the hearing, the Tribunal does not concur with Ms Freeman's view that "he manages his general affairs, pays the rent each month, budget his pension money, shops for food each week and travels to Chatswood to buy clothes". Mr McDonnell's rent has not been in arrears, largely because his landlord collects it each month. He has little scope for budgeting his pension since most of it goes to pay his rent. It was Mrs Bristow's evidence that Mr McDonnell has required financial assistance with Meals-on-Wheels and his pharmacy account. That assistance is no longer available to him. Although Mr McDonnell claims that he is shopping weekly for food, the evidence indicates that in the recent past his weight loss could be attributed to the fact that he was not in fact shopping each week as claimed.

Prior to Mrs Bristow's decision to lodge an application with the Tribunal and the making of an interim financial management order, Mr McDonnell had taken no action regarding matters which had become urgent, namely Centrelink's proposal to cancel his disability support pension and the issuing of a notice of termination of tenancy by his landlord. He failed to take any action after extensions of time were given to him by his landlord and Centrelink. It was only after the Protective Commissioner was appointed as Mr McDonnell's interim financial manager, that the issue of cancellation of his pension was addressed. As a consequence Centrelink is no longer pursuing this matter. Even in the period following the making of the interim financial management order Mr McDonnell has not taken any steps to obtain probate of his late mother’s will. It was only when Ms Fraser became involved that she caused a number of enquiries to be made regarding the location of the will.

The Tribunal took all these matters into account in determining the issue of Mr McDonnell's capability to manage his finances and concluded that while Mr McDonnell has the intellectual capacity to make decisions in relation to his financial affairs, he has not demonstrated a resolve or an ability to pursue matters needing attention. Possibly because of symptoms related to chronic fatigue syndrome he is simply unable to put into effect any decisions made by him and has shown himself to be unable to comply with undertakings given by him.

The Tribunal was therefore satisfied that the test PY v RJS is met in that Mr McDonnell has demonstrated incapability for dealing in a reasonably competent fashion with his financial affairs. Although Mr McDonnell undertook to advance the administration of his late mother's estate if an adjournment was granted, the Tribunal had no confidence that he would or could do so, in light of similar undertakings given by him in the past which were not acted on.

The Tribunal noted the cases referred to it by Ms Fraser. It does not consider that in making a financial management order it is adopting a paternalistic approach. Mr McDonnell has shown himself to be incapable of dealing with the reality of matters requiring action. For any progress to be made, there is a need for another person to manage his financial affairs on his behalf. The Tribunal was satisfied that the only way Mr McDonnell's affairs can be handled, in the circumstances presently facing him, is for an order to be made. It was also satisfied that it is in his best interests that a financial management order be made.

11 The summons, as is required, included a statement of grounds relied upon in support of the appeal. These were a conglomeration of matters in the most part relating to claimed errors of fact. Those under (ii), (xvii), (xxvi)(b); and (xxvii) were withdrawn at the commencement of the hearing before me.

12 Counsel for the plaintiff then sought and was granted leave to add new grounds of appeal as follows:

1(a)
The Tribunal erred in law by making certain findings where there was no evidence to support such findings.

1(b)
The Tribunal erred in law by allowing so much irrelevant material to enter its decision making process that the decision is a nullity.

13 The matters relied on for the new ground 1(a) were that the Tribunal erred:

(a) in rejecting the evidence of Miss Freedman and in substituting their own opinions as to capacity;

(b) in finding the plaintiff had failed to conduct searches for the will;

(c) in finding the plaintiff’s loss of weight contributed to his chronic fatigue syndrome in the absence of evidence to that effect;

(d) in finding the plaintiff had failed to comply with undertakings given by him and that they could have no confidence of compliance with future undertakings;

(e) in finding the plaintiff did not possess the ability to put intentions into effect.

14 None of these matters is made out. So far as Miss Freedman is concerned it is correct the Tribunal placed little weight on the rent payments but that was because the landlord collected the rent. So far as the will was concerned JM apparently thought there was a will. It is put that searches took time due to the accumulation of paper in the flat. Nevertheless in 12 months there was no progress. While the interim order would have prevented an application for administration by JM, it did not prevent proper searches and in fact searches being made. The loss of weight ground is a little stronger. I can find no material on this, but that does not mean there was no evidence as the transcript of oral evidence is not before me.

15 So far as the undertakings grounds are concerned, the Tribunal was entitled to rely on the evidence of the counsellor and the landlord before it as to these. The stress placed by counsel on the fact that after the interim order was made JM could not apply for a grant does not overcome the delay up to that date and preclude the Tribunal from considering that delay. There was substantial evidence entitling the Tribunal to come to the conclusion JM lacked the ability to put his intentions into effect. Ground 1(a) is not made out.

Ground 1(b)

16 The particular matters relied on in support of this covered much the same ground, relating to delay in obtaining a grant, failure to address the tenancy issues and weight loss. Leaving aside the last matter the claim of consideration of irrelevant material is not made out. The reasons for withdrawal of the tenancy proceedings were clear. As to the grant JM said he was grief stricken after his mother’s death and he has health problems. This was no doubt a reason sufficient for an affidavit as to delay as his counsel strongly argued: but it did not make the decision wrong in law.

17 So far as both grounds are concerned, as I have pointed out, they could not be established without the transcript. No mistake of law was made. No wrong test was applied.

Appeal for leave

18 This is not a case which raises matters of general importance such that leave should be granted: K v K [2000] NSWSC 1052. In any event most of the matters relied upon are the same as those said to give rise to mistakes of law. The decision was open to the Tribunal, it was not perverse. The mistake about the time Dr Bowes had attended JM is not shown to have had any bearing on his report or the result.

19 The summons should be dismissed.

1. Leave to appeal on questions of fact refused.

2. Summons be dismissed.

3. Exhibits may be returned.

4. No order as to costs.

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