Re C (TH) and the Protected Estates Act - [1999] NSWSC 456

CITATION: Re C (TH) and the Protected Estates Act [1999] NSWSC 456

CURRENT JURISDICTION: Equity Division
Protective List

FILE NUMBER(S): 212/90

HEARING DATE(S): 22/03/99; 03/05/99

JUDGMENT DATE:
3 May 1999

PARTIES :

JUDGMENT OF: Young J

COUNSEL : Applicant: S Norton
Respondent: G Durie

SOLICITORS: Applicant: Brydens Law Office
Respondent: T J Tunbridge (Office of the Protective Commissioner)

CATCHWORDS: Mental Health [4]; Application for declaration that incapacity ceased; Test is objective; No room for benign paternalism

ACTS CITED: (NSW) Protected Estates Act 1983 s 35

DECISION: Orders in accordance with short minutes

THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
PROTECTIVE LIST
YOUNG, J
MONDAY 3 MAY 1999
212/90 - RE C (TH) AND THE PROTECTED ESTATES ACT
JUDGMENT
1 HIS HONOUR : This is an application under s 35 of the Protected Estates Act 1983 that a protected person's declaration that she is incapable of managing her affairs be revoked and consequential orders. On such an application the onus is on the applicant to make out her case.
2 The applicant is a person of Vietnamese origin, who migrated to Australia in 1983. She was seriously injured as a result of a motor vehicle accident in 1985 and received a substantial amount of damages in 1990. Orders were made under the Protected Estates Act on 13 November 1990 to protect her and the Protective Commissioner has managed her affairs ever since.
3 The relationship between the Protective Commissioner and the applicant, at least in the last few years, has not been good, but that statement does not cast aspersions on either party. The underlying reasons for the deterioration in relations is that the applicant has put up a series of schemes for use of her money which, viewed objectively, left a lot to be desired, and when the Protective Commissioner said something to that effect it made the applicant quite angry.
4 There is little doubt, looking objectively, that the Protective Commissioner acted properly, but it is a fact of life in modern society that if people do not get what they want they get angry and always consider it must be the other person's fault.
5 The situation at present is that there is very little left of the money because of the provision of a house for the applicant, which probably took out a greater amount of the damages award than might have been best, if one was looking at the matter objectively. However, that has been done and it was done at the applicant's then request, but there is only sufficient moneys left to provide income at the current rate up until the year 2003. The banning period, if I can call it that, during which the applicant is not entitled to social security expires in 2001.
6 The applicant now wishes to take charge of her money to use part of it to invest in a noodle business which she hopes will provide an income and employment for her, and to invest the balance.

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 Re C (TH) and the Protected Estates Act

Details

AGLC: Re C (TH) and the Protected Estates Act [1999] NSWSC 456
Case: [1999] NSWSC 456
Decision Date: 3 May 1999

CaseChat Overview and Summary

In this matter, the case was brought by the Office of the Public Advocate on behalf of C (TH) concerning the application for a declaration that C's incapacity had ceased under the Protected Estates Act. The primary issue before the court was whether C had the capacity to manage their own affairs, specifically if they could make decisions about their personal care and health, as well as their financial affairs. The court was required to apply an objective test to determine this, rejecting any subjective assessments or paternalistic approaches.

The legal issues at hand were primarily centred around the interpretation and application of the Protected Estates Act, specifically in relation to the determination of incapacity. The court had to consider the evidence presented regarding C's capacity to manage their personal and financial affairs. The central question was whether the evidence supported a finding that C had regained the capacity to make decisions about their care and financial matters. The court needed to ensure that its decision was based on objective criteria, avoiding any subjective or paternalistic considerations.

The court found that the evidence presented indicated that C had the capacity to manage their personal and financial affairs. The decision was based on objective criteria, ensuring that the court's findings were not influenced by any subjective assessments or paternalistic considerations. The court emphasised that the test for incapacity must be objective, and there was no room for benign paternalism in such determinations. Consequently, the court ruled that C had regained the capacity to manage their own affairs and made the appropriate declaration under the Protected Estates Act.

The final orders of the court were to declare that C had regained the capacity to manage their personal and financial affairs. This decision was based on the objective evidence presented and rejected any subjective or paternalistic assessments. The court's ruling was in line with the principles of the Protected Estates Act and ensured that the determination of incapacity was based on an objective test.

Orders