Re GHI (a protected person) - [2005] NSWSC 581

No judgment structure available for this case.

CITATION:
Re GHI (a protected person) [2005] NSWSC 581

HEARING DATE(S): 10/5/05-13/5/05 & 1/6/05

JUDGMENT DATE :

27 June 2005

JURISDICTION:
Equity
Protective List

JUDGMENT OF:
Campbell J

DECISION:
Order not made

CATCHWORDS:
MENTAL HEALTH - declaration or finding of incapacity - application for revocation of order for management of estate of plaintiff - meaning of "capable of managing his or her own affairs" - what count as "affairs" - relevance of willingness to take advice to capacity to manage own affairs - relevance of vulnerability to exploitation to capacity to manage own affairs - onus of proof - standard of proof - types of matters appropriate to take into account in deciding whether standard of proof has been met - whether any discretion exists concerning making of an order

LEGISLATION CITED:
Evidence Act 1995
Mental Health Act 1958
Protected Estates Act 1983
Social Security Act 1991 (Cth)

CASES CITED:
Re C (TH) and the Protected Estates Act [1999] NSWSC 456
CF v TCML [1983] 1 NSWLR 138
DML v LMR (Powell J 20 June 1991 unreported) BC9101874
EMG v Guardianship and Administration Board of Victoria [1999] NSWSC 501
G v G (No 2) (Powell J, 7 February 1989, unreported) BC 8902591
H v H (Young J, 20 March 2000, unreported)
M and the Protected Estates Act 1983 (1988) 12 NSWLR 96
McD v McD [1983] 3 NSWLR 81
N v N (Hodgson J, 13 March 1997, unreported)
NSW Crime Commission v Murchie [2000] NSWSC 591; (2000) 49 NSWLR 465
PY v RJS [1982] 2 NSWLR 700
P v R [2003] NSWSC 819

PARTIES:
GHI (a protected person) - Plaintiff
Office of the Protective Commissioner - Defendant

FILE NUMBER(S):
SC 66/03

COUNSEL:
M Bradford - Plaintiff
S Balafoutis - Defendant

SOLICITORS:
Uther Webster & Evans - Plaintiff
Office of the Protective Commissioner - Defendant

LOWER COURT JURISDICTION:

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

CAMPBELL J

27 JUNE 2005

66/03 RE: GHI (A PROTECTED PERSON)

JUDGMENT

HIS HONOUR:

Nature of the Case

1 This is an application by a protected person under section 35 Protected Estates Act 1983 (“PE Act 1983”) for an order that his estate no longer be subject to management. The Protective Commissioner opposes the making of the order.

The Applicable Law

2 An order for management is made by the Court under section 13(1) PE Act 1983. It provides:

“Where the Court is satisfied that a person is incapable of managing his or her affairs, it may make a declaration to that effect and order that the estate of the person be subject to management under this Act.”

3 Section 35(1) PE Act 1983 provides:

“(1) Where, upon application to it by a protected person … the Court is satisfied that the protected person is capable of managing his or her affairs, it may:

(a) revoke any declaration made that the person is incapable of managing his or her affairs,

(b) revoke the order that the estate of the person be subject to management under this Act, and

(c) make such orders as appear to it necessary to give effect to the revocation of the order, including the release of the estate of the person from the control of the Court, the Protective Commissioner or a manager and the discharge of any manager.”

Meaning of “capable of managing his or her own affairs”

4 At a time when the Mental Health Act 1958 governed the appointment of managers of the property of an incapable person, Powell J said, in PY v RJS [1982] 2 NSWLR 700 at 702:

7. It is my view that a person is not shown to be incapable of managing his or her own affairs unless, at the least, it appears:

(a) that he or she appears incapable of dealing, in a reasonably competent fashion, with the ordinary routine affairs of man; and

(b) that, by reason of that lack of competence there is shown to be a real risk that either:

(i) he or she may be disadvantaged in the conduct of such affairs; or

Re an Alleged Incapable Person

In the Matter of Case

5 That test has been repeatedly applied in New South Wales: eg CF v TCML [1983] 1 NSWLR 138 at 139-140; M and the Protected Estates Act 1983 (1988) 12 NSWLR 96 at 99, 101; G v G (No 2) (Powell J, 7 February 1989, unreported BC 8902591 at 29 of BC); N v N (Hodgson J, 13 March 1997, unreported); Re C (TH) and the Protected Estates Act [1999] NSWSC 456 at [11] per Young J; EMG v Guardianship and Administration Board of Victoria [1999] NSWSC 501 at [3], [46] per Young J; H v H (Young J, 20 March 2000, unreported); P v R [2003] NSWSC 819 at [8] per Barrett J. The last seven cases listed were ones which applied that test to a question of capacity arising under the PE Act 1983. The test has been applied both in applications under section 13 (which depend on whether the person is “incapable of managing his or her affairs”) and in applications under section 35 (which depend on whether the person is “capable of managing his or her affairs”). A test which has been followed so often is one which a judge of first instance like myself must follow.

6 In Victoria a somewhat different test of capacity, which was personal to the circumstances of the individual concerned was applied, rather than the test which Powell J stated in PY v R (See Re MacGregor [1985] VR 861). However, in M and the Protected Estates Act 1983 (1988) 12 NSWLR 96 at 102 Powell J adhered to the test he had articulated in PY v RJS, saying:

Protected Estates Act 1983

7 In EMG v Guardianship and Administration Board of Victoria [1999] NSWSC 501 Young J recognised the difference between the tests applied in New South Wales and Victoria, and implicitly approved the continuation of the New South Wales test, saying at [46]:

Re MacGregor

8 That is not to say that the complexity of a person’s affairs is irrelevant to the enquiry which section 35 calls for. In N v N (13 March 1997, unreported) Hodgson J considered the principle in PY v RJS and said, at p 4:

“I see no reason for questioning that view of his Honour in these proceedings; and accordingly, it seems to me that the first element at least of the elements discussed by his Honour in that case has to be judged without reference to the difficulty or complexity of the person’s affairs. I do not think his Honour’s view, however, means that the complexity and difficulty of the person’s affairs cannot be taken into account in assessing the risk which has to be considered under the second element; and, of course, there is no reason why that aspect, that is the complexity and difficulty of the person’s affairs, should not be taken into account in any element of discretion that the Court may have.”

9 A consequence of Powell J’s test being applied in an application under section 35 is, as Young J said in Re C (TH) and the Protected Estates Act [1999] NSWSC 456 at [10]:

“ … it is not a question of whether the Protective Commissioner or somebody else could manage the affairs of the applicant better, or that if the applicant was left on her own the likelihood would be that her funds would soon be dissipated. One cannot be too paternalistic. People have the right to manage their affairs, unless they fall below the level that is prescribed by the Act.”

10 The test in PY v RJS is not, of course, a substitute for the statutory test. Because of the words “at the least” appearing in it, it does not purport to be exhaustive. As well, when it contains the words “incapable” and “affairs” it is using identical terminology to that in section 13 PE Act 1983, and consequently does not explain those aspects of section 13.

11 Any consideration of whether a person “is capable” of doing some task, involves assessing the present condition of the person and deciding whether they have the present powers and skills to carry out that task. The task involved in section 13 is that of managing affairs. Deciding whether a person is capable of managing affairs is in part an exercise in prediction – of deciding whether the skills and abilities which the person now has are such that they are likely to be able to deal satisfactorily with the tasks that will arise in the future concerning the management of their affairs.

12 A closely related, but not identical, idea has earlier been expressed by Powell J, when he held that the time as at which the capacity should be shown is not just the immediate time of the hearing, but also the reasonably foreseeable future: CF v TCML [1983] 1 NSWLR 138 at 141; McD v McD [1983] 3 NSWLR 81 at 86; DML v LMR (Powell J 20 June 1991 unreported, BC9101874 at 61 of BC).

13 The word “affairs” is one which is capable of a variety of meanings, and can be quite broad: cf NSW Crime Commission v Murchie [2000] NSWSC 591; (2000) 49 NSWLR 465 at [21] ff. In the context of the PE Act 1983, the word takes some of its colour from the consequence which might flow from a person being incapable of managing his or her affairs, namely that his or her estate becomes subject to management under this Act.

14 Section 4(4) PE Act 1983 says:

“In this Act, a reference to the estate of a person is a reference to the property and affairs of the person …”

“and affairs”

estate

“affairs”

“property”

“affairs”

15 Greater assistance can be gathered from the fact that the estate of the person becomes subject to management under this Act. The PE Act 1983, in section 22, permits the manager of the estate of a protected person to be either the Protective Commissioner, or “a suitable person”. When the Protective Commissioner is appointed manager, he has powers and functions set out in sections 24 to 28 inclusive. Many of these are particular types of transaction which can be carried out with property. However as well there is power under section 24(2)(i) to carry on a business which the protected person had carried on so far as may appear desirable for the purpose of more advantageously disposing of or winding up the business or preserving the business until the protected person is able to carry it on.

16 Section 26(1) confers on the Protective Commissioner “… all such functions as the protected person has and can exercise or would have and could exercise if under no incapacity.” Section 28 permits the Protective Commissioner to apply money which is the whole or any part of the estate of a protected person towards, inter alia,

“(b) the maintenance, clothing, medicine and care, past and future, of the protected person, and in the event of the death of the protected person, the protected person’s funeral expenses.

(c) the maintenance of the spouse of the protected person or any child, parent or other person dependent upon the protected person, or for whose maintenance the protected person provided when not a protected person or would be expected to provide.”

17 Section 28(2) prohibits the Protective Commissioner from investing money which is part of the estate of a protected person in purchasing real estate unless the purchase is for one of three purposes, one of which is “providing a home for the protected person or any dependents of the protected person.”

18 If someone other than the Protective Commissioner is appointed as manager of the estate sections 29 - 33 PE Act 1983 govern the situation. Section 30(1) enables the Protective Commissioner to exercise the jurisdiction and powers of the Court concerning the administration and management of the estates of protected persons, and to direct, supervise and enforce the performance of the obligations and duties of the manager. The powers of the Court which are thereby conferred include the power under section 32(1), to:

“… make such orders as appear to it necessary for rendering the property and income of a protected person available for the payment of the debts of, and the maintenance and otherwise for the benefit of, the protected person and the family of the protected person and otherwise as it thinks necessary or desirable for the care and management of the estate of a protected person.”

“authorise and direct the manager of the estate of a protected person to have and exercise such functions in respect of the estate as it may specify, being functions of the same kind as those specified in section 24(2) in respect of an estate committed to the management by the Protective Commissioner …”

19 Thus, the management of the estate of a protected person, whether by the Protective Commissioner or a private manager, involves more than engaging in discrete transactions concerning the property of the protected person. It extends to carrying on a business, and providing for the practical welfare of the protected person and people dependent upon him or her, in the particular ways I have just listed from the statute. When the PE Act 1983 provides for these types of task to be carried out by the manager for a protected person who is incapable of managing his or her affairs, that is a strong indication in the statute itself of the sort of tasks the protected person is incapable of performing when he or she is incapable of managing his or her affairs.

20 In H v H (20 March 2000, unreported) Young J considered the rule in PY v RJS, and gave an ostensive definition of “affairs” at pages 7 and 8:

“However, when looking at that test, the ordinary affairs of mankind do not just mean being able to go to the bank and draw out housekeeping money. Most people’s affairs are more complicated than that, and the ordinary affairs of mankind involve at least planning for the future, working out how one will feed oneself and ones family, and how one is going to generate income and look after capital. Accordingly, whilst one does not have to be a person who is capable of managing complex financial affairs, one has to go beyond just managing household bills.”

“affairs”

PE Act 1983,

21 In the context of the PE Act 1983, “affairs” are, it seems to me, the various practical dealings that a person needs to engage in, in life, which relate in a significant way to property. These practical dealings are not restricted to ones of investment of money or carrying out transactions like buying, selling, leasing or mortgaging other types of property.

Onus of Proof

22 In an application under section 35 PE Act 1983, the onus of proving that the protected person is capable of managing his or her affairs lies on the protected person: Re C (TH) and the Protected Estates Act [1999] NSWSC 456 at [1], [14]; and by analogy from the corresponding section in the Mental Health Act 1958: PY v RJS [1982] 2 NSWLR 700 at 701; CF v TCML [1983] 1 NSWLR 138 at 139.

Standard of Proof

23 An application under section 35 is a civil proceeding, and hence question of whether the Court is satisfied is to be decided on the balance of probabilities: Section 140(1) Evidence Act 1995. However, section 140(2) Evidence Act 1995 provides:

“Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:

(a) the nature of the cause of action or defence, and

(b) the nature of the subject-matter of the proceeding, and

(c) the gravity of the matters alleged.”

24 In H v H (20 March 2000, unreported) Young J said, at 9 concerning an applicant under section 35 PE Act 1983:

“H sustained a very serious injury. He has a permanent injury. The injury was such that a court thought that $800,000 damages should be awarded. It is a very heavy onus to bear, to show that 7 years after the damages were assessed things have changed to such an extent that despite the head injury, H is now able to manage his own affairs.”

Evidence Act 1995

25 In Re C (TH) and the Protected Estates Act (1999) NSWSC 456 at [15] Young J said:

“The court is always wary when someone who is awarded damages in a motor vehicle accident case puts forward as part of her damages claim permanent brain damage and then a few years later wishes to take up the opposing position, that having got those damages she should now be free to spend them.”

Evidence Act 1995

Any Discretion Not to Make an Order?

26 Section 35 says that if the court is satisfied that the protected person is capable of managing his or her affairs, it may make orders of the type listed in section 35(1). In PY v RJS [1982] 2 NSWLR 700 at 701 Powell J said, concerning the power under section 18 Mental Health Act 1958 which is analogous to section 35 PE Act 1983:

Julius v Lord Bishop of Oxford

N v N

Circumstances Leading to the Protection Order

27 The plaintiff, who I will refer to as GHI, was born on 8 January 1958 in London. He left school at the age of sixteen years and commenced employment with his father as a butcher’s apprentice. He continued to work in London until he was about nineteen years of age, when he moved to Australia. He moved to Australia to pursue a relationship with an Australian girl he had met. His relationship with her ended after about six months, but he continued to live in Australia.

28 When he first came to Australia he worked as a butcher in Sydney for approximately four years, then returned to England for one year. During that year his father died, in approximately 1984.

29 GHI then returned to Australia, and resumed work as a butcher for three or four years, then took up work as a courier parcel deliveryman. Though he worked for one particular courier company, he was not an employee.

30 At about 1 am on 29 November 1997 GHI was struck by a vehicle when he was crossing a road. He suffered significant injuries. One injury involved severe damage to his left shoulder, which of itself would prevent him from ever working again as a butcher.

31 As well, he suffered head injuries. An initial CT brain scan revealed a right temporal haemorrhagic contusion, a left temporal extracerebral haematoma, blood around the tentorium, gas within the cranial cavity, a fracture extending through the left petrous temporal bone, and undisplaced fractures of the lateral walls of the maxillary antra. He was treated at Royal North Shore Hospital until discharged on 18 December 1997. He was transferred to the Royal Rehabilitation Centre Sydney.

32 It is not necessary to go into the detail of his condition and behaviour in the period immediately after the accident. In the period up to early 2001, however, there were several incidents involving him being quite violent. He has been able to limit these incidents, as a result of receiving anger management training and counselling.

33 On 1 July 1999 this Court made an order under section 13 PE Act 1983 subjecting his estate to management, and appointing the Protective Commissioner as manager of it. The order was made by a Judge in chambers, after the plaintiff had appeared in person before the Registrar, and consented to the making of the order.

34 The plaintiff began Common Law damages proceedings in the District Court against the driver of the car which had injured him. The particulars filed by the plaintiff included allegations of the following continuing disabilities.

35 That claim was settled in early 2001 for $1.7m plus costs. On 8 March 2001 an amount of $1,560,360.16 was paid to the Office of the Protective Commissioner (“OPC”). This was the verdict money, after deduction of all costs and other amounts which were deductible from the verdict. The amount of the verdict which was approved was one arrived at where the general consensus and opinion of the various doctors who had assessed the plaintiff on behalf of both the plaintiff and the defendant in the District Court proceedings was that he was permanently and totally unfit for work.

36 Sections 17 and 1165 Social Security Act 1991 (Cth) have the effect of precluding a person who receives a lump sum compensation payment from receiving Commonwealth social security benefits for a period of time which is calculated by reference to the amount of the lump sum payment. The system is explained in Luntz, Assessment of Damages for Personal Injury and Death, 4th ed, (2002) p. 449-457. In the present case, the plaintiff’s pension preclusion period lasts until 14 May 2027, a date at which the plaintiff would be 69 years and 4 months old.

Initiation of these Proceedings

37 In the course of 2001 the plaintiff made enquiries of his State Member of Parliament concerning what needed to be done to bring the management order to an end. The plaintiff was told of the requirements of section 35 PE Act 1983. In around June of 2002 he instructed his present solicitors concerning the making of an application to revoke the protection order. He was advised that it was premature to bring the application at that stage, and that he should get himself into a position where he could demonstrate to the Court that he was responsible concerning financial management. It was only after a financial trial, which I will mention in more detail below, had been underway for some months that these proceedings were started, on 19 November 2003. The hearing of the proceedings was delayed for a large part of 2004, at the request of the plaintiff’s solicitor, to enable the plaintiff to deal with a different piece of litigation in which he was involved (paras [78] – [84] below).

38 I should make it clear at the outset that the plaintiff has numerous abilities. He has improved quite remarkably from the very gloomy picture painted by the particulars of his continuing disabilities, given in the District Court litigation. I recognise also that such particulars are formulated at a comparatively early stage of the common law proceedings, and sometimes involve some elements of an ambit claim. The medical evidence to the time of settlement of the District Court proceedings, though, made clear that he had suffered serious brain injury.

39 Now, the plaintiff lives in his own home. He can drive, cook, clean, shop, do the gardening and the laundry, make and keep medical appointments, and generally perform all the daily tasks that he needs to to maintain himself and his home in proper physical condition. A financial test which he has been undergoing since March 2003 shows that he has the organisational skills which are needed to be able to pay the regular household bills on time. There are various examples of him making financial decisions of some complexity. One example is that there was an occasion when his car sustained some minor damage (which was not his fault), and he made the decision about whether it would be better to pay for the repairs himself, or make an insurance claim and lose his no-claim bonus. Other examples are given in the course of the judgment.

The Plaintiff’s Family

40 The plaintiff’s father has been dead for over 20 years. The plaintiff has one sibling, a sister, who is 14 years older than he, and still lives in England. She visited the plaintiff by coming to Australia in Easter 2003, but the visit was not a success. She resented the fact that the plaintiff had left her with the responsibility of looking after their aged mother. As well, the sister pressed the plaintiff for money, which he did not give her. Since Easter 2003 the plaintiff has not telephoned his mother, because his sister said to him “do not bother coming to England, do not bother even ringing her.” The plaintiff has not had any contact with his mother or sister for over two years. He has stopped sending Christmas and birthday cards to his mother, and at present he does not know whether she is even still alive. She was “in a very sick state” when he last heard of her, and for the first time in his life he did not receive a birthday card from her for his last birthday.

41 The plaintiff’s only relative in Australia is a second cousin, who lives in Western Australia. In August 2002 the plaintiff travelled from Sydney to Perth by himself, arranged accommodation and the hire of a car, and then drove the 700 kms from Perth to the town where his second cousin lives. He stayed with her for about ten days. She found that he was a pleasure to have as a guest, and sensible in spending money. It should be said, however, that at that time the plaintiff had little spare money to spend, as the OPC was making money available to him periodically, in comparatively small amounts. The plaintiff’s second cousin speaks to him on the telephone about two or three times a week. In an affidavit which she swore on 6 April 2004 she reported that over the previous twelve to eighteen months she had noted that he seems to be a lot calmer and more in control of his emotions than he was shortly after the accident, and generally more in control of his life and more content. She has not noticed anything about his recent behaviour which causes her to have concerns about his ability to look after his own money.

Evidence From Friends

42 Mr John Rutten has been a neighbour of the plaintiff since September 2002. They have seen each other regularly since then. He reports how the plaintiff’s home was at first very sparsely furnished but that the plaintiff has been

“developing his home from day to day, carefully purchasing items without being frivolous, assessing what he needed to make his home better, considering what had been left by the previous owners.”

43 Mr Geoffrey Barden has known the plaintiff since 1989. He noticed a personality change after the plaintiff’s accident, but that since then the plaintiff has become a lot better. He has seen the plaintiff being careful with budgeting, and is of the view that he would manage his money responsibly. It was Mr Barden who sold the house the plaintiff occupies to the OPC. As well, he runs a storage unit business, and continues to lease to the plaintiff a storage unit in which the plaintiff stores various items.

The Plaintiff’s Living Arrangements

44 At first, after the accident, the plaintiff was discharged into the care of his fiancé. She assisted him significantly. However, the arrangement did not work, and the relationship came to an end. He had a period where he lived in rented accommodation, or at the Narrabeen Caravan Park.

45 On 6 September 2002 the OPC settled the purchase of a three-bedroom house on Warringah Road at Beacon Hill, for the plaintiff. It was purchased for $520,000 from Mr Barden. The plaintiff agreed on a price for the property with Mr Barden (without the intervention of a real estate agent), and obtained a valuation of the property, which he gave to the OPC to demonstrate that the purchase price was a proper one. The OPC agreed to the purchase. The plaintiff moved into the property soon after settlement, and continues to live there. The property has increased in value.

46 In similar fashion, in October 2001 the OPC had acquired a car for the plaintiff. It was acquired after the plaintiff had found the car himself, and negotiated a price for it.

47 At one stage the plaintiff requested the OPC to arrange for the construction of a second bathroom in the house. The OPC came to the view that spending money in that way would overcapitalise the house, and told the plaintiff so. The plaintiff has accepted that advice.

Plaintiff’s Attitude to the House Purchase

48 Warringah Road is a busy road, with six lanes of traffic. Almost as soon as he moved in, the plaintiff found that the traffic noise at the house was difficult to cope with. In October 2002 he moved out of the house, and put his belongings into storage. He resumed living at the Narrabeen Caravan Park.

49 Since November 2001 the plaintiff has been receiving regular medical attention from a general practitioner, Dr Suzanne Daly, who has provided excellent support for him. On 16 October 2002 Dr Daly wrote to the OPC saying:

“Unfortunately the house that [GHI] has purchased has proven unsuitable. It is extremely noisy with trucks waking him up early in the morning. He finds it difficult to exit it. He is experiencing “flashbacks” to his accident & a recurrence of stress-induced headaches & nightmares. He really needs a peaceful haven. We have agreed he should sell & he has already taken steps to this effect. He continues to improve in managing his affairs!”

50 By 23 October 2002 Dr Daly reported to the OPC that:

“[GHI] has come in today very stressed, anxious & depressed. He is unable to sleep in the house, due to the traffic noise so has (sensibly I think) moved out into Narrabeen Caravan Park for a month or so. He has spoken to some real estate agents & his solicitor & intends to sell the house. He is very, very homesick & wants to see his elderly mother in UK so requests that arrangements be made for his trip there. I think this is a good idea as do his psychiatrist and solicitor. I trust you can arrange this.”

51 He moved back into the house after a month or so at the caravan park. Some of his goods remain in storage, however, and he continues to incur the cost of storing them there.

52 Dr Daly gave oral evidence that:

“I had tried to warn him ‘wouldn’t that be too noisy on a main road?’ …

I think he was desperate to have something to call his own, yes, so he wasn't prepared to listen to the disadvantages of it. I think he was desperate to have something to call his own; a place to call home. I think that's why he settled on it, because at least they said he could afford it, even though it wasn't a wonderful environment, but it was something to start with, and it's worked like that.”

53 On 28 July 2003 the plaintiff had a conversation with Mr Gulline, the officer then handling his file at the OPC, and said:

“I have bought a lemon. The house is a nightmare for me. I have difficulty sleeping because of the noise and dirt. I bought the house in a hurry to get away from the caravan park. I want to sell the house and buy a brick house for between $700,000 to $800,000.”

“… you have indicated your wish to move from the property as the traffic noise is deleterious to your health. You believe that a sale and a purchase in the area is the best option for you even though the purchase will be at a greater cost than the sale price. This will by necessity reduce your income stream.

We do have processes in place and I have initiated that relating to a sale. That said, it will take time.”

54 On 17 September 2003 the plaintiff said to Mr Gulline:

“I do not want to sell the house now. I will wait for the outcome of the section 35 application.”

“My only other concrete investment plan is to research the market for a new place to live in the future.”

55 He agreed in cross-examination that even now the noise was difficult in the summer, when doors or windows were opened. Another theme which came out in his oral evidence is that he would like, at some stage, to sell the house and move somewhere quieter, but that he does not have immediate plans to do so. However, at one stage in his cross-examination he said that initially he was unhappy with the noise,

“.. but now I have become accustomed to it and it does not cause me any problem and I am certainly glad that I stayed there and will not sell the place.”

The Financial Trial

56 When the OPC first began management of the plaintiff’s estate it took responsibility for paying all of the plaintiff’s bills. It gave him an allowance each week from which he bought groceries and other daily requirements. Before the verdict money was received it was $200 per week, after the verdict money was received it increased in March 2001 to $500 per week, around the time of purchase of his car in October 2001 it reduced to $440 per week, and thereafter it changed from time to time. As well, various ad hoc payments of allowance were made to him.

57 On 3 February 2003 a meeting took place between the OPC and the plaintiff’s solicitor and barrister, at which a proposal was put forward in principle for the plaintiff to receive a larger weekly allowance, and become responsible for the payment of certain of his regular bills. On 6 March 2003, at a second such conference, the proposal was stated in more specific terms. It was that the plaintiff be paid $750 per week, and that he should be responsible for payment of utilities and motor vehicle expenses from it. As well, the OPC agreed that it would advance him some money to purchase some furniture, and to enable his sister and niece to visit him from England. This proposal is one which left the OPC paying for the plaintiff’s medical expenses, the cost of storing his goods, and any other expenses which were not specifically stated to be the plaintiff’s responsibility. That proposal was implemented promptly, and worked satisfactorily over the next few months.

58 After his allowance was increased to $750 per week, in March 2003, the plaintiff arranged for cable television to be put on at his home, at a cost of $50 per month. He sent $1,000 to his mother in England. He bought some furniture for the home. His phone bills for April and May 2003 were each of the order of $300 per month, including the bill for his mobile phone. However, he was able to reduce his phone bill to the order of $100 to $120 per month by disconnecting the long distance facility, and putting his mobile phone onto a pre-paid plan, so that he could control the amount he spent on it. As well, the plaintiff’s money was used to pay for the fares of his sister and niece to visit at Easter in 2003 (para [40] above).

59 On 1 July 2003 there was a meeting at Dr Daly’s surgery, attended by the plaintiff, Dr Daly, and representatives of OPC. Dr Daly described that meeting as “a wonderful meeting”. At it, agreement in principle was reached that the plaintiff should be paid an allowance at the rate of $1,000 per week, quarterly in advance, and that he should pay certain specified types of expenses from it. Under the trial which began in March 2003 OPC had, each week, transferred $750 into the plaintiff’s bank account, so this amended version of the financial trial tested his ability to manage money over a somewhat longer timeframe. $1,000 per week was the amount the plaintiff requested, because that was the amount which he had been receiving, after tax, before the accident. The plaintiff rejected a suggestion that he ought receive payments six monthly in advance.

60 It should be said, however, that the amount of the District Court verdict was not calculated on the basis that it ought provide the plaintiff with $1,000 per week for the rest of what would have been his working life. The terms of settlement record that the amount of the verdict had been fixed after apportioning 25% contributory negligence to the plaintiff. As well, the affidavit which his then solicitor swore on 30 January 2001 in the District Court proceedings in connection with the approval of the settlement made clear that a further compromise had been accepted, beyond that arising from the 25% contributory negligence, in calculation of future economic loss. As well, however, the largest component allowed for in the damages was for future care, in an amount which his solicitor thought was possibly on the high side.

61 The arrangement arrived at in July 2003 has been implemented by the OPC making periodical transfers of money to the plaintiff’s cheque account. The arrangement has been extended several times, and remains on foot now.

The 2003 Criminal Charges Against the Plaintiff

62 The OPC officer who then had control of the plaintiff’s file (not Mr Gulline) had agreed to a request which the plaintiff made to put some extra money into the plaintiff’s bank account so that the plaintiff could celebrate his 45th birthday on 8 January 2003. The officer forgot to do so. The plaintiff visited an ATM on several occasions on 8 January 2003 and the days immediately following, but each time found that the money had not been put into his account. On the evening of 12 January 2003 the plaintiff was at home by himself drinking. He attempted to contact his mother in London, and his second cousin in Western Australia, by making a reverse charge telephone call, but the Telstra operator would not let him do so. He then made four phone calls in the course of which he stated (in different calls) that there was a bomb on a QANTAS 747, another bomb at Mascot airport, another at the Telstra building, and one at the Mascot train station. The calls were readily traced to his home phone. In two of the calls he was asked who he was, to which he stated his name accurately.

63 He had four criminal charges brought against him in consequence. Those charges were dealt with at the Local Court on 17 April 2003, and resulted in him being placed on a good behaviour bond for 18 months.

The Allegation of Failure to Save During the Financial Trial

64 The OPC submits that one factor which should be taken into account on the present application is that the plaintiff has spent virtually all of the money which he received during the financial trial.

65 For the purpose of submitting to the Magistrate who was to hear the 2003 criminal charges, the OPC wrote a “To Whom It May Concern” document on 12 March 2003, explaining that an error occurred in the processing by the OPC of an amount of $250 that the plaintiff was due to receive on 11 January 2003. It also explained the $750 per week arrangement which by then had been put into place, and continued:

“Whilst there are concerns about the length of time [GHI’s] estate will last at the present rate of expenditure if he does not save some of his allowance, it is hoped that the new arrangement will help [GHI] to feel more empowered in the management of his finances. It is also hoped that this may reduce [GHI’s] stress levels.”

66 At the meeting on 1 July 2003 Mr Gulline said to the plaintiff that if he were to be allocated $1,000 per week that would be in excess of what would be affordable in the long term. Mr Gulline told him that he could only be allocated that sum on the basis that it would give him an opportunity to manage his money and save what was left. I conclude that Mr Gulline made these statements on the basis of his own evidence, Dr Daly’s confirmation of the substance of that evidence, and to a lesser extent on Mr Gulline’s contemporaneous file note.

67 After the amended version of the financial trial involving quarterly payments had been agreed, the OPC wrote to the plaintiff on 29 July 2003, explaining that the first payment had been placed into his bank account, and continuing:

“The funds are by way of a trial to allow you to further demonstrate your ability to manage your money other than on a week to week basis. The amount is as requested by you at $1,000 per week. However this is greater than the income generated currently and is not sustainable in the longer term.

All of your expenses during the next 13 weeks are to be met by you from the payment.”

68 The plaintiff had always had a current account with the Commonwealth Bank. On 7 August 2003 he opened a new account with the Commonwealth Bank, entitled an “Award Saver” account, which he referred to as his savings account. He deposited into this savings account $8,000 of the $13,000 he had received as the first quarterly payment, and gave instructions for it to be credited to his cheque account at the rate of $800 per week.

69 In an affidavit he swore on 24 October 2003 the plaintiff said:

“I do appreciate that I will need to reduce the direct debits that I am having from my savings account into my cheque account to approximately $500 per week and in fact I have organised this in the last few weeks. I am sure that I can continue to do this, as I have now set up my home, purchased some clothes, sent money overseas and had a holiday, which are all things that I had not done for a substantial period of time.”

70 On 28 January 2004 Mr Gulline wrote to the plaintiff confirming that there would be an extension of the financial trial, and saying:

“… you must keep in mind that the current level of payments made to you and on your behalf is depleting your capital. In short, it is not affordable in the medium to longer term. The amount [per] 3 months was set at a high level which is not continuously affordable to ensure that you had sufficient flexibility in your finances to allow you to plan including making savings.”

71 Over the period of the financial trial the plaintiff paid every bill which, under the arrangement he had agreed with the OPC, was his responsibility to pay. His task in budgeting was made all the more difficult by the fact that the OPC was not absolutely regular in making payments of $13,000 per quarter to him. Two of the payments the OPC made to him were one month late, one of them was two weeks early, and two others were late, one of them by five days, and another by nearly three weeks. As well, four of the payments were not made in a single sum, but by instalments. These delays and part-payments arose from the need for the OPC to realise investments it had made for the plaintiff to be able to make the payments.

72 Since the financial trial has been on foot, the plaintiff has travelled to the Philippines on four occasions – in late October to early November 2003, 12-29 May 2004, for a period starting on 24 November 2004, and 6-29 March 2005. He has friends in the Philippines, who he visited on these trips. Dr Daly gave evidence that he is under stress each November, around the anniversary of his accident, and that two of those trips coincided with that anniversary. He spent $5,900 on the trip in May 2004.

73 The plaintiff was aware that the rate at which he was spending money, while the financial trial was on, was not one which would be sustainable, and was aware that he was eating into his capital. He was aware that one of the purposes of the financial trial was to demonstrate that he could budget ordinary expenses, and that he could save. However, the OPC at no time made clear to him what sort of saving it expected him to engage in. In the course of the financial trial, he did indeed save – he saved up for things he wanted, like holidays, and then when he had saved up enough to pay for what he wanted, he spent the money and obtained it. I do not accept that it was ever made clear to him that the OPC expected him to save in the different sense of ensuring that, at the end of the financial trial, he had a significant amount of money left over from the amounts the OPC paid him. No one from the OPC told him, during the financial trial, that he was not saving in the manner that he was expected to save. Mr Gulline agreed that, right up to the time of the hearing, the plaintiff had “stuck to his side of the bargain in connection with the quarterly plans”. The plaintiff’s solicitor told him that he ought to save part of the money he was receiving, but never told him he should save it in a way which would result in substantial capital being left, at the end of the financial trial, from the payments he received.

74 Even so, his failure to have significant money left over at the end of the financial trial is an indication that he might lack the capacity to manage his financial affairs. The financial trial is one which exposed the plaintiff to a limited degree of financial risk. It presented him with the opportunity of eroding his capital, but in a way in which, if he took the opportunity, his action would be unwise, but not disastrous. It left him to decide for himself what rate of expenditure he would have, when he knew that spending all he was being paid would erode his capital. Given the opportunity to make a decision, completely unprompted, that he would not spend all the money he was being paid, he failed to make that decision, even though in one part of his mind he knew that the expenditure was unsustainable.

75 Mr Bradford, counsel for the plaintiff, submits that in fact there was no erosion of his capital during the financial trial. He submits that this can be demonstrated by looking at figures for the plaintiff’s net assets, apart from his house and car, from time to time, and deducting from the figures for net assets which relate to a time before the house and car were actually purchased the total cost of the car, house and stamp duty and legal expenses connected with the house purchase, of roughly $567,000. That exercise results in the following figures.

Date	Net Assets Minus House and Car or their Cost
March 2002	$788,000
February 2003	$685,000
March 2004	$658,000
January 2005	$705,000

76 While it is true that over the period of the financial trial (March 2003 onwards) these net asset figures have actually increased by something of the order of $30,000, the plaintiff was, during the period of the financial trial, expending more than the income which his net assets generated. The expenditure included not only the amounts paid from his allowance of $1,000 per week, but also other items which the OPC paid for him, and which it was not his responsibility under the financial plan to pay for from his allowance. The period of the financial trial was one in which the type of investments in which the OPC had invested his money appreciated in value. Investments needed to be realised from time to time to continue to make payments to him. What in effect was happening was that he was consuming a significant part of the capital gains which his investments made during the period of the financial trial. Responsible long-term financial planning needs to recognise that provision needs to be made during years when investments are rising in value for those years when the investments will generate a low or perhaps even negative return. The plaintiff did not do anything to make any such provision.

77 Mr Bradford submits that, when no one told the plaintiff that he was doing anything wrong during the period of the financial trial, it is not appropriate to now use his failure to have any significant money left over at the end of the trial as an indication of any lack of capacity to manage his financial affairs. I do not agree. However, when it was not made clear to him that the OPC expected him to save in the sense of having significant money left over at the end of the financial trial, I am not prepared to give as much weight to his failure to have money left over as I would if the OPC’s expectations in this regard had been made quite clear to him.

The 2004 Criminal Charges

78 Around December 2002 the plaintiff became friends with Ms D, an Irish citizen visiting Australia. That friendship went into abeyance after Easter 2003, but was renewed in January 2004. At that time she told the plaintiff that she was being made to leave her current accommodation, and asked if she could stay at his house for a while. He agreed. She offered to pay him rent, but he did not accept it. Their relationship developed until it came to be a sexual one. I accept the following evidence of the plaintiff about the circumstances leading up to the 2004 criminal charges:

“I enjoyed [her] company immensely. I like to see a smile on her face and I would oblige her requests for items or expenses such as medication or taxi fares as she did not have a job. I would also spend time dropping her off at places she needed to go or taking her shopping to treat her. On occasion, [she] would say words to me to the effect:

She said: “Can we go shopping for some new clothes? I really don’t have anything new.”

I said: “Alright, let’s go out together and see what we can find.”

However, as time went on, [she] increased her demands on me beyond what I considered to be reasonable within the bounds of our relationship. I was willing to be generous towards [her] as my friend but only within reason. On one occasion, [she] said words to me to the following effect:

She said: “[GHI], I am going out tonight and I need some money for the taxi and for when I am out.”

I said: “No. There are limits. I’m not giving you the money for that.”

[She] also began to demonstrate that she had other male friends apart from me. Over time, she began bringing these men to my home. This was totally unacceptable to me.

After approximately eight weeks, I began to say to [her] words to the following effect:

I said: “How long are you going to keep staying here? I don’t appreciate you bringing people that I don’t know to my home.

I have to ask you to make whatever arrangements you need to make and to leave. I don’t want you living here anymore.”

79 On the night of 11 March 2004 there was an incident in the course of which the plaintiff accepts that he slapped Ms D on the right cheek and spat on her face. Ms D locked herself in the bathroom for around twenty minutes, then let herself out and ran to some police who were, as it happens, conducting random breath tests close by. The plaintiff put her clothes and other items belonging to her on the front lawn, and put bleach on them.

80 Ms D has made a statement to the police that there was more to the incident than that – that the plaintiff sexually assaulted her, tore her pants, and made threats of serious violence against her.

81 The plaintiff was charged with three different charges – assault with act of indecency, common assault, and maliciously destroying or damaging property worth between $2,000 and $5,000. The plaintiff pleaded guilty to the second and third of those charges. The first of them was not proceeded with by the prosecution authorities. The plaintiff denies that he sexually assaulted Ms D. He has given, in oral evidence before me, a detailed account of what was involved in the incident.

82 Ms D’s statement to the police, and the statements of police officers involved in the immediate aftermath of the incident, were admitted under section 13 PE Act 1983 (see Re GHI [2005] NSWSC 466). Neither she, nor those police officers, have given evidence in the present case. The plaintiff was cross-examined about the incident at some length. I accept the plaintiff’s evidence concerning what was involved in the incident. Hence, I shall determine this case on the basis that the plaintiff’s denial that he was guilty of the first charge is correct.

83 The second and third of the 2004 criminal charges were dealt with in the Manly Local Court on 7 October 2004. The plaintiff was sentenced to 8 months imprisonment, suspended conditional on his entering a good behaviour bond. He appealed to the District Court, and that appeal was determined on 16 November 2004. It resulted in the sentence being reduced to 6 months 20 days, suspended conditional on his entering a good behaviour bond. In substance, this amounted to the District Court Judge taking off the sentence the period which had elapsed between the Local Court hearing and the District Court hearing.

84 The stress involved in this charge was a reason for one of the plaintiff’s holidays to the Philippines in 2004.

Ms Taylor’s Financial Plan

85 In December 2003 the plaintiff saw Ms Taylor, a financial planner with the Commonwealth Bank. She produced a financial plan for him on 2 February 2004. It proceeded on the basis that he had around $670,000 to invest, besides his house and car. It recommended, in broad terms, investments after the following pattern.

Current Account	$20,000
8 month term deposit	$50,000
Lifetime annuity	$350,000
Managed funds aimed at income (commercial mortgages, money market securities and cash)	$150,000
Managed funds aimed at growth (shares and property investment)	$100,000
Total	$670,000

86 The lifetime annuity which has been recommended in that plan is one which is not indexed for inflation. The financial plan document (which is 59 pages long) points out at one place that indexed annuities are available, that annuities involve locking away the capital invested in them so that it is completely inaccessible, and that in the current low inflationary environment investment in an annuity involves a risk of locking funds into an investment with relatively low real returns over the long term. The annuity recommended in the plan will produce an income stream of $16,927 pa. The plan is based on him having annual living expenses of $26,000 – ie, $500 per week. This is the amount he told Ms Taylor he could live on per week, even though his actual rate of expenditure for the previous nine months had been significantly higher than $500 per week. The cashflow projections which are part of the plan show that the estimated net income (after tax) from the recommended portfolio would be of the order of $27,300 pa. The plaintiff says that if he were to be given control of his affairs he would take advice from financial planners such as Ms Taylor.

The Plaintiff in Court

87 Because the hearing lasted longer than had been estimated, the plaintiff’s evidence was given over a period of four days, interspersed between the evidence of other witnesses. Some attempts to sit extended hours were curtailed when, in the later part of the afternoon, it became clear that the plaintiff was too tired to be able to continue at his best. At times he became agitated and raised his voice while answering questions, but was always able to recover his composure. He expressed his irritation with the OPC by becoming combative with counsel for the OPC, and criticising counsel for actions and attitudes he saw the OPC as having, as though counsel was part of the OPC (until he was specifically told that was not the case). On two separate occasions, in response to relevant and proper questions politely put, he told counsel for the OPC that it was a stupid question. His answers were often long, and sometimes not well focused on the question. He was clearly very upset and frustrated by events such as the OPC failing to pay his quarterly allowance on time, or being late in payment of his bills. The only specific example of lateness in paying a bill concerned a pathologists account, the original of which appears to have been sent to the plaintiff’s address, and which the OPC paid promptly when the plaintiff forwarded to the OPC, through his solicitor, reminder notices which the pathologist sent him.

The Expert Evidence

88 Dr Langeluddecke is a clinical psychologist and neuropsychologist. Her practice is one in which about 75% of the patients she sees have brain injuries. She first examined the plaintiff in February 1999 at the request of his then solicitors for the purposes of his Common Law action, and then at the request of the Dr Daly at a time when it was known that this present action was being contemplated. She has carried out neuropsychological assessments of the plaintiff on 23 February 1999 and 9 August 2002. The August 2002 assessment is one which Dr Langeluddecke regards as likely to provide a measure of his present capacities, notwithstanding the time which has elapsed since testing. Dr Langeluddecke found that, by August 2002 in comparison with February 1999,

“Well, he certainly improved cognitively and behaviourally he was different. He wasn't overtly aggressive and agitated. If anything, his mood, it has turned a little elevated but he certainly didn't have that incredible aggression he had when I first saw him.”

89 The most serious problem revealed by the testing in August 2002 related to his executive/adaptive functions. He acknowledged “occasional” problems in relation to :

“i) his ability to plan ahead;

ii) insight regarding the extent of his problems;

iii) his ability to maintain interest in things;

iv) tendencies to say embarrassing things when in the company of others, and;

v) his ability to sit still for any length of time.

90 Two friends of the plaintiff who Dr Langeluddecke asked to answer a questionnaire,

“…indicated very marked dysexecutive problems, … They indicated marked problems with impulsivity (ie acting without thinking, doing the first thing that comes to mind), a tendency to become overexcited about things, tendencies to confuse the correct order of events and to get events mixed up with each other, doing or saying embarrassing things in the company of others, really wanting to do something one minute and not caring less about it the next, appearing unconcerned about how he should behave in certain situations, tendencies to be restless, difficulties in stopping doing something even if he knows that he shouldn‘t be doing it, saying one thing but doing something different, difficulty in keeping his mind on something and appearing unconcerned about how others feel regarding his behaviour.”

91 She concluded:

“[GHI] appears to have made a good recovery from the extremely severe brain injury which he sustained in November 1997 in terms of cognitive functioning. Intellectual functions are reasonably well preserved, his general level of ability falling within the average range. His ability to commit novel information to immediate memory is mildly impaired and currently falls within the Low Average range for his age, both for auditory verbal and visual material. Once committed to memory, information is reasonably well retained over time. Capacity for new learning is also within the Low Average range. Basic attentional functions are intact and there is no evidence of significant mental slowing. There are no gross deficits in higher cognitive functions. However, impulsivity and mild problems with planning and self monitoring compromise [GHI’s] performance on more demanding cognitive tasks. He also has some difficulties in thinking flexibly and in dealing with abstract information. [GHI’s] numeracy and literacy skills are quite adequate for him to manage his daily affairs. While [GHI’s] cognitive functioning is reasonable, his demeanour at assessment indicated ongoing problems with emotional/behavioural monitoring and control and deficiencies in social judgement and insight. Information provided on a behavioural checklist which was completed by friends who have the opportunity of observing [GHI] in his normal environment provided further evidence of behavioural signs of executive dysfunction.

I would expect the behavioural sequelae of [GHI’s] brain injury to render him unemployable on the open labour market in the future. Accordingly, he is unlikely to be able to supplement the funds presently available to him. I would also expect the deficiencies in emotional/behavioural monitoring and control to compromise [GHI’s] ability to responsibly manage the substantial but finite funds awarded to him as compensation for his injuries in a manner which will satisfy his financial requirements in the longer term. I would expect [GHI] to be at high risk of social and financial exploitation, and of impulsive and irresponsible spending.”

92 When approached for a further opinion in November 2003 Dr Langeluddecke advised that further neuropsychological assessment was not needed. This was on the basis that it was “very very rare” to see either cognitive or functional improvements in a person more than five years after they had sustained a brain injury.

93 Dr Langeluddecke adhered to her view through a searching cross-examination. When asked to take into account that the plaintiff had successfully completed the financial trial, with “no instance of any irresponsible or impulsive spending during that period” she said:

“A. Look, I think it shows that with the structure that having a certain amount of money that he can budget over about, over that 3-month time, I think certainly shows he can do that. But the whole issue is without that structure, without that structure can he manage his money? And I do not feel confident that he would be able to do that.”

94 Her view is summarised as:

“I just don't feel confident that he would be able to manage that to cater to his longer term needs in a man who I term to be unemployable and who I understand does not have access to any sort of benefits if his funds proved to be inadequate.

95 Concerning his potential for exploitation, she was asked to assume that Ms D had wanted money, that the plaintiff refused to give it to her, and that eventually he asked her to leave his house. The questioning continued:

“… viewed in the light of the facts I have asked you to assume, doesn't that demonstrate an ability on [GHI’s] part to take steps to ensure that people do not exploit him?
A. Certainly if that is the case, yes.

Q. And is there any reason why [GHI] could not recognise situations in the future in which people try to take financial advantage of him and he take steps to ensure it doesn't happen.
A. He may or might not. We cannot be reasonably sure, we can not be reasonably comfortable he will.

96 Dr Bennett is a neuropsychologist engaged by the plaintiff’s solicitors. While the larger part of her practice these days concerns aged people, around 25% of her patients are younger people, including ones with acquired brain damage. She is of the view that the plaintiff is now able to manage his financial affairs. Her opinion is based on an interview she conducted with him on 13 January 2004, and tests administered on that day. Her tests, in broad terms, confirmed results obtained by Dr Langeluddecke, that his results for most areas of cognition fell within the average range. She noted, though, that he continues to have difficulties with emotional regulation where when upset he is unable to suppress or hide this, and he has difficulty regulating anger and other emotions.

97 Dr Anderson is a psychiatrist, who was the treating psychiatrist of the plaintiff until near the end of 2002. He saw the plaintiff again on 22 October 2003 for the purpose of a medico-legal report. He has expressed the view that the plaintiff has capacity. He says, however, that he is not quite sure what standard of capability is required. As well, treatment of patients who have suffered a brain injury is not the major part of his practice. In these circumstances I am not prepared to place great weight on his opinion.

98 Dr Milton is a psychiatrist who saw the plaintiff on 18 August 2004. He has had wide experience in evaluating people who have suffered severe head injury. He described the plaintiff’s presentation at that consultation as being

“… typically that of a seriously brain injured person with difficulty in controlling aggression and limited range and depth of emotion. He smiled in a fixed manner, was polite, even over polite, and talked under pressure. Given the content of the file, I was cautious about opening issues which might be difficult for him and might lead to loss of control. He showed no formal thought disorder, delusions or hallucinations. He had limited insight.”

99 That view of Dr Milton was initially expressed in a report in which he accepted the version of the facts concerning the 2004 assault which had been given by Ms D. In cross-examination he said he had, at the time of his report, regarded it as significant that there were sexual elements in the assault because the presence of such elements showed a further level of disinhibition from an assault lacking such elements. However, even when asked in cross-examination to assume that the assault lacked a sexual element, Dr Milton was of the view that it “had quite a number of quite adverse features in it”. He gave evidence:

100 Dr Milton said:

101 Some medical practitioners who had seen the plaintiff, and with whose reports Dr Milton had been provided, had reported on feeling threatened by the plaintiff’s behaviour during an interview. Dr Milton did not himself feel threatened, but “I felt if I asked the wrong question we could have fireworks”.

102 He regarded the purchase of the house, and moving out shortly after, as of some significance, because “he didn’t appreciate what would happen to him in the house that he was content to purchase until after he moved into it.” Concerning whether the plaintiff would act on financial advice, Dr Milton said:

“I think he may go and talk to a financial planner. But I thought that the pressures within him are such that I wouldn’t hold a lot of faith in him [to] take that advice.

…

There is evidence that he does talk to people, but whether in the long run he can take that advice, I would be very sceptical, particularly since he doesn’t have any second chances.

…

In my report I referred to him being an obsessional man and I think I noticed that he bought lots of documents along and how he had everything set out very neatly. I think what happens with such people is that - and this was no doubt a characteristic that was present before he was injured. But I think what happens with such people they will often go through the proper or approved things that they should do because I think that's probably what he's done in the past. But when it comes to actually facing the issues and making the decisions, I think that's where their personality deficit is caused by the organic brain injury can be an impediment.”

103 He gave the following evidence:

“HIS HONOUR: Q. Before re-examination, Dr Milton, I'm having some difficulty in understanding how it is that a tendency to commit assault is something that has anything to do with ability to manage financial affairs. I mean you're obviously familiar with syllogisms from your earlier evidence. And if one tries to put the argument that seems to be put in syllogistic form, it is that all people who assault are people who cannot manage their behaviour, all people who make impulsive financial decisions are people who cannot manage their behaviour – and with those two propositions, it's a classic undistributed middle, isn't it?

The Plaintiff’s Plans for the Future

104 The plaintiff has not had a paid job for the 7½ years since his accident. Dr Milton has found that people with brain injury who want to take responsibility often get a job. While the plaintiff’s physical injuries would limit the types of job which were open to him, they are such that, if they were his only problem, there would be still a significant range of jobs open to him.

105 Dr Bennett reports that in the interview she had with him:

actually

106 Dr Bennett appears to have accepted that the plans he talks about are just “dreams and fantasies”. I would not be willing to dismiss so readily his stated ideas about what he might do if he were to recover full control of his finances. In his affidavit of 24 October 2003 he said:

“I have a keen interest in music and some ability to play music. I have on occasions set up discos for charities and other organisations where I am the DJ. I am hopeful that, one day, I will be able to develop this into some form of part-time work.”

“I have canvassed the idea of investigating a business as another financial possibility, either as a manager or as an owner-operator perhaps in partnership with another person or people. I consider such an investment might include a business that would enable me to follow my interest in music but I recognise this is a long term financial goal that I may address as an option in the future.”

107 Affidavits are hardly the place to set out thoughts which are mere “dreams and fantasises”.

108 In his oral evidence the plaintiff said that one line of working he was thinking of was to buy a van and get back into the parcel delivery business.

109 In cross-examination he gave the following evidence:

“Q. Would it be your preference to work for somebody or to be self-employed, be your own boss?
A. As I said, I have always been my own boss. I have been the manager, the self-employed. I would like to - I don't want to go backwards. I reached the top of my profession and I would certainly like - I am a master butcher but I cannot cut meat any more or lift legs of lamb - sorry whole lambs - I can lift a leg of lamb but not a whole lamb, and I am certainly a qualified - I know as regarded storage, delivery, removals and deliveries, I am qualified in that. I would obviously get back, even if in an office answering the telephone and booking jobs as regards to, you know, doing the warehouse management, regards to that, but obviously that I would obviously go back into something that I was qualified in and it would be ideal if I had had - yes I would like to be obviously the boss. If that is the question, I have always been the boss and I would be the boss and I have always made money up until the accident which knocked me out of the game.

110 In cross-examination he said that he was contemplating buying a house on the Central Coast and renting out his present house. The cross-examination continued:

Now, those are my two plans. I either buy property or I leave the money in the Commonwealth Bank and live on what ever. If I want to buy one house, two houses, whatever, Wizard Home Loans have made me an offer, thank you. I have a lot of people I have spoken to and I can get, if not use my money, use someone else's, the loan money.

So, if I am getting, all right for example $400 a week and I am paying $300 mortgage, I am going to make increase in value on both properties but still making a hundred bucks a week and I have a house in Gosford and a house in Sydney. Well, this is just one idea that the property market, sir, can never lose money and I will take this to the highest Court that I am in my right mind to say that buying that house, irrespective of what you and the real estate may think its worth, I know what its worth and I know how hard I fought to get it and I certainly am not and in all due respect this goes to the rest of the money, how hard I worked and the thing, the things I have been through, this is - sorry.

The money is rightfully mine. The money will not be wasted. It will only be used for me for good causes and I am not going to come back to this Court crying because I - all right, nobody's perfect, nobody makes, businessmen property owners, what have you, they don't, not everybody is a hundred per cent sure guaranteed that they have made the right decision but I certainly have had a lot of time to think about this and certainly I will be, first thing I will do will get professional advice before I make any decision selling, buying or moving or what have you. That is the God's truth, I am not, sir, throwing my money away, sir.

Q. You said that Wizard has made you an offer already?
A. Well, I do know a certain gentleman that has, not exactly made me an offer but said well, [GHI], there is a place up in Port Macquarie or up the coast, and this for the price what you paid for that you could get a brick house with a swimming pool, boom, boom, boom. But do you know what he next said to me? Can't do nothing while the Protective Commissioner have got control of your money because you know as well as I do, sir, I don't even have control over my house, I can't sell it. I can't move. I can't do anything. Because basically all my thoughts and ideas, as I say, are snuffed out because any business or money making opportunity that comes my way is gone because by the time the contract is signed, the money's supposed to be there, the Protective Commissioner is still sitting in the back seat, sorry [GHI], we forgot it, we've got all your paperwork.

So, basically by making a few phone calls and getting a house within a week or two or month or whatever, I am losing money because, sir, if you go to a car lot and there's a Jaguar there or whatever, brand new Mercedes and they say all right, that's $50,000, it should be $60,000 but you can have it for 50 if you want to pay cash now and you say, yes, but hang on a minute, I have to see you next week, I have to phone the Protective Commissioner and I was told to go out and do this and boom, boom, boom and sorry mate, the car's already sold. Missed out again.”

111 He gave evidence about a former employer having offered him a house to purchase:

I was saying obviously I wouldn't, I wouldn't just meet him in the street and say, do you want to buy my house, I will go to the bank, there's the money, no. Of course, I know his house very well, I in fact worked with him and I have lived with him, but certainly I would do like I did with his house get it privately evaluated, get it also, what you call the go ahead from my solicitor, or what have you. As I say, I have never rushed, I would never rush into anything but I can certainly do a quicker business transaction in a lot quicker than the Protective Commissioner and by the time the Protective Commissioner comes to the party the house is sold, too late mate.

112 When he was talking to Dr Milton in August 2004 he said he had friends in the music industry that he had known for years, and the entertainment business was what he would really like to get back into. He said he had always wanted to open a café or wine bar, and have his friends play, that he knew he could get the best meat, and would still like to work with food. He said that he had always been his own boss and had people working for him, that he was captain of his football team, and now he felt helpless. (Dr Milton videotaped the interview from the time that the plaintiff gave permission for the videotaping to occur, and that video tape was tendered in evidence.)

113 In light of this evidence there is, in my view, a significant risk that if the plaintiff had control of his affairs he would decide to acquire some sort of business, which would turn out to be more than he could handle.

114 When Dr Bennett was asked what she had regarded as being the plaintiff’s “affairs”, she responded “I have taken quite a narrow view and looked at his financial management skills and looked at it on a day to day basis, mid-term basis and larger big picture lump sum basis.” Her evidence continued:

“HIS HONOUR: One thing which is going through my mind at the moment is that one of the things that [GHI] really wants to do is to be able to run his own business and in the course of running his business it would not just be a matter of deciding well, I will put so many dollars into the business it would be a matter of being able to organise it on a day to day basis, be able to keep up relations with people he dealt with in the business and so on. And one thing that I am wondering is whether you have cast the net wide enough about to take into account whether he has got the capacity to do that sort of thing?
A. When I wrote my reports and when I was assessing [GHI] I didn't look into the future about that sort of thing. What I was asking him and I was focusing on was what his intentions were in once he got that lump sum and at a concrete level what he said to me was to invest it and do these other things. And that was his concrete intentions about what he would do. Again, I think to make that kind of judgment, for example, I would need to do a completely different assessment of him. The kinds of assessments I used to do at the Commonwealth Rehab Service are those kinds of assessments, so I will see people like [GHI] and I worked very closely with occupational therapists and we would look at what they could do and what they wanted to do so, for instance, I would do a whole bunch of neuropsychological tests and interview him about all of those sorts of things. The occupational therapists would work with him also and look at the practical skills he has kind of got and then what we would all do together is work out what can he do. He can't work full time, maybe he can work 15 hours a week. He wants to run his own business, let us kind of look at that financial side of things. He wants to run a courier business. How realistic is this? His financial management skills are okay but he is somebody who loses his temper with people. …

Q. Courier work is something where just daily stresses--
A. That's right.

So, I think, in a tailored situation - I have certainly seen people with worse problems than [GHI] go back into employment. Yes, we have done long-term follow up with these people, and they can do it, but it needs sophisticated analysis, an analysis of cognitive skills, and, as you are worried about, an analysis of interpersonal skills, and really finding the best place for that person.

I don't feel in a position, on what I have done, to be able to give that type of judgment, either alone or with a neuropsychologist. I would not want to do it. I would really have to work with a team, and test him out; a trial and error type thing. That system does work, and Sydney and Australia has such a system.”

115 Investing money in a small business, and incurring obligations in the course of running such a business, are part of the ordinary routine affairs of man. Dr Bennett is not in a situation where she is, at present, able to express a view about whether the plaintiff has the skills which are needed to deal in a reasonably competent fashion with deciding whether to make that sort of investment, or to carry through the operation of the business if it were acquired. For that reason, her opinion concerning the capacity of the plaintiff is one to which I give less weight than that of Dr Langeluddecke and Dr Milton.

116 I recognise that, in some cases under section 35, no specific attention might be given in the evidence to whether the person in question has the skill to decide whether to invest in a small business, or to run it. In cases which involve the pensioner living in a retirement village, considered by Young J in EMG v Guardianship Board of Victoria (para [7] above), it is usually perfectly appropriate for the court to reach a conclusion that the person in question is capable of dealing with the ordinary routine affairs of man on the basis of evidence of a general kind, without specific enquiry into whether the person has the ability to deal with absolutely the full range of the ordinary affairs of mankind. That is because those skills that are omitted from the range of specific enquiry are ones that there is no practical likelihood of the person in question needing to exercise in the course of running his or her affairs. For that reason, there is no real risk that any lack of skill that they might have, in the areas not specifically investigated, will cause the person any disadvantage in conducting his or her (actual) affairs, or cause the person to dissipate or lose money or property. However, once the particular plaintiff shows that he or she wants to engage in a particular type of activity, there is occasion for the court to enquire whether the person has the capacity to deal with the type of routine affairs of man which are likely to arise in that type of activity.

117 This analysis of the requirements of section 35 does not involve a possibility of the Court concluding that someone with a large amount of property to administer, and who lacks the ability to deal with it by reason if its size and complexity, is held to be incapable of managing his or her affairs – the vice which Powell J in M and the Protected Estates Act 1983 (para [6] above) saw as involved in what his Honour took to be the Victorian approach to whether a person was incapable. Rather, it looks only at those types of skills which fall within the range of those needed to deal with the ordinary routine affairs of man, enquires whether the plaintiff has satisfied the Court that he or she has those skills, and looks at whether any lack of such skills is one which causes the risk of the person being disadvantaged in the conduct of his or her affairs, or dissipating or losing money or property. That is a precise and literal application of Powell J’s test.

118 Mr Bradford submits that I should find it is likely the plaintiff would undergo the sort of testing to which Dr Bennett referred, and only acquire a business of a type he was advised was suitable for him. The evidence does not enable me to make that finding.

The Plaintiff’s Willingness to Take Advice

119 It is by seeking and following appropriate professional advice from time to time that the vast majority of people in modern society are able to manage their affairs. It is inevitable that the management of almost anyone’s affairs will, from time to time, require the making of a judgment or the performance of a task for which that person is not well equipped by education or experience, or (sometimes) native ability. People manage their affairs by recognising when they are in such a situation, and seeking the advice or assistance of someone who has the skills or abilities which they recognise themselves as lacking.

120 When deciding whether a person is capable of managing his or her own affairs, the likelihood of the person seeking and following appropriate advice when needed is an important factor. The precise extent of its importance in any particular case is affected by the nature and extent of the particular person’s need for advice. In the case of a person who lacks some or all of the abilities to deal with the ordinary routine affairs of mankind, a rigorous practice of seeking and following appropriate advice can remove the risk that the lack of the abilities will cause the person to be disadvantaged in the conduct of his or her affairs, or lose money or other property. Such a practice amounts to the person delegating to the adviser on an ad hoc basis those decisions which the person does not have the skill to make, or choosing from a range of alternatives which the adviser tells him or her are possible.

121 Mr Bradford points to various examples of the plaintiff taking advice in the time since his accident, namely:

“(a) his pleas of guilty to the summary offences which he committed in January 2003 and March 2004;

(b) his participation in anger management and counselling with Sydney Rehabilitation Services;

(c) his decision to defer affirmative action to revoke the section 13 order during the period from June 2002 to November 2003;

(d) his decision to resume occupation of the Warringah Road property;

(e) his decision to retain that property as a residence and not proceed with a proposal to sell or lease it, and

122 The plaintiff is well aware, in general terms, of the need to seek appropriate advice concerning financial matters. I am not satisfied, however, that he will always recognise a situation in which he should seek advice. Nor am I satisfied that it is likely that, concerning decisions with important financial implications, he would seek the right type of advice. One concrete area of concern which I have relates to the prospect of the plaintiff seeking to run his own business. The plaintiff has a gregarious nature, and has expressed the view that he wants to be the boss in a business. Yet it is in his dealings with other people that difficulties which are an ongoing consequence of his brain injury are most likely to emerge. As well, his serious desire to resume activity is one which creates, it seems to me, a real risk that he would make an unwise decision about expenditure of money. Even outside that one concrete area of concern I am not persuaded that I ought reject Dr Milton’s view (para [102] above) that one cannot be confident he would take advice.

Vulnerability of the Plaintiff to Exploitation

123 Being able to identify and deal appropriately with someone who is trying to get the benefit of some of one’s assets for themselves through unfair dealing is relevant to whether someone has capacity to manage his or her affairs in two different ways. One is that it is part of the skills needed to carry out the ordinary routine affairs of mankind. However, the fact that people of undoubtedly full capacity can be the victims of confidence tricksters or subject to undue influence or subject to the type of conduct which leads equity to set aside a transaction on the grounds of unconscionable conduct shows that complete success in exercising that skill is not necessary to have legal capacity. It is only when a person’s skill of that type falls well below the ordinary level, so that it could not be said the person had reasonable competence in exercising that skill, that the question arises of whether he or she is incapable of managing his or her affairs arises.

124 The second way in which lack of the skill is relevant is in the second element of Powell J’s test of incapacity in PY v RJS (para [4] above), in assessment of the risk that the lack of the skill will disadvantage the person, or cause him or her to dissipate or lose money or property.

125 Both of these ways in which the lack of the skill is relevant are involved in an examination of whether a person is vulnerable to exploitation. The plaintiff has shown that he was able to resist attempts by both his sister, and Ms D, to separate him from anything more than comparatively small sums of money. Even so, I am not satisfied that there is no risk of his being subject to exploitation. Neither Dr Langeluddecke nor Dr Milton can rule out such a risk. Dr Daly, in a letter written on 16 November 2004 to the District Court judge hearing the plaintiff’s appeal concerning the charges relating to Ms D, said that the plaintiff “has been very lonely and at times desperate for some female companionship”. Dr Daly says that he “was very vulnerable at the time after the incident at hand and he could easily have been exploited.” Her evidence before me was that, now “he is still lonely, but he is not as vulnerable. He has learnt from that lesson.” While I accept that evidence, it does not satisfy me that he is not in a situation where he has a greater degree of vulnerability to exploitation, arising from causes rooted in his brain injury, than an ordinary person. I think the greater risk is from the salesman offering a quick deal which will only be available for a short while, rather than from a woman who tries to persuade him to buy affection. However in my view he is more vulnerable to both types of attack than he would have been prior to his accident. As well, I am not satisfied that his ability to make judgments in such situations is not significantly less than that of a person of ordinary skill in managing practical affairs.

Conclusions

126 The plaintiff bears an onus of establishing that he is capable of managing his affairs. In deciding whether he has discharged that onus, it is legitimate to take into account the seriousness of his making a mistake which wastes capital. A very important factor here is the extremely long pension preclusion period which still applies to him – nearly 22 years. Any member of the community managing his or her own affairs is at some risk of making a financial mistake, but for most members of the community the seriousness of making such a mistake is alleviated by the fact that, even if the mistake is a very serious one which results in their bankruptcy, they still have in many cases the capacity to earn a living up to retirement age, and usually, if they are unable to earn their living or are past retirement age, they have a right to support of a rudimentary kind from social security. Dr Anderson thinks the plaintiff is employable, and Dr Bennett does not rule out the possibility that some suitable employment might be found for him, but Dr Milton and Dr Langeluddecke doubt that he is employable. It may turn out – and I hope for the plaintiff’s sake it does – that the view of Dr Bennett and Dr Anderson about his employability proves to be correct. However, taken as a whole the evidence does not permit a conclusion that it is likely that some suitable employment could be found for him. As well, he has no family in Australia of a kind likely to support him if he were to become unable to support himself. While he has friends, he has no friends of the rare type who would be willing to undertake such a responsibility. Thus, making the decision today, the consequences of the plaintiff making a serious financial mistake are, potentially, very grave indeed. This is a matter appropriate to take into account under section 140(2) Evidence Act, in deciding whether I am satisfied that he now has capacity.

127 The plaintiff said in cross-examination, concerning his pension preclusion period until age 69:

“… I don’t really expect to live that long, seeing as all my family died at the age of 60 and I’ve already, alright, had a near death experience, but basically, whether it goes to the age of 69 or [the] age of 70 or the age of 100, it makes really – its irrelevant. The fact is, I need to get on with my life now. I’ve lost nearly 10 years of my life. I’m nearly 50 years old and what I need is to start living now, not thinking about, oh, what I’m going to have when I’m 70 … [f]or generations of my family nobody really lives old and I certainly do not wish to spend the rest of my life sitting at home, alone, I need to get out there, alright, find a good, excuse me, a good way to me meet people is to get some casual work and get back out into the world. But at the moment 100 percent of my brain time, my thoughts, is on this case …”

128 As he sees it, the pension preclusion period is of no importance:

“I’d never want social security for the rest of my life. I never ever will need social security because I never did before the accident … I honestly do not really need a pension. And if some countries, like the Philippines for example don’t have pensions, well that suits me fine. I’ve always been able to get out there, earn a buck and never had to rely upon anyone and certainly I’m not waiting or hanging out to get a pension. I’m self, and always has been, self sufficient.”

129 In my view, that evidence seriously underestimates the importance of the pension preclusion period.

130 The evidence of Dr Anderson and Dr Bennett is insufficient to persuade me to reject the conclusions of Dr Milton and Dr Langeluddecke concerning the plaintiff’s capacity to manage his own affairs.

131 I have found this case a difficult one to decide, and given it a lot of thought. In the end, though, in all the circumstances, I am not satisfied that the plaintiff has established that he is capable of managing his affairs, and hence no order under section 35 PE Act 1983 will be made. I recognise that this result will be very disappointing for the plaintiff, but applying the legal test in section 35 to the facts shown by the evidence does not let me reach any other conclusion.

132 Having the plaintiff’s estate continue to be subject to management will not necessarily mean that he will revert to having the manager pay all his bills for him, and being given a weekly subsistence allowance. Section 23A PE Act 1983 provides:

Guardianship Act 1987

(2) However, the person managing the protected person’s estate may, by instrument in writing, authorise the protected person to deal with so much of the estate as the manager considers appropriate and specifies in the instrument.

(3) The authorisation may be given at any time and may be withdrawn, wholly or in part, at any time.

(4) More than one authorisation may be given under this section.

(5) If the person managing the protected person’s estate is not the Protective Commissioner, an authorisation must not be given or withdrawn without the approval of the Protective Commissioner.

(6) An application may be made to the ADT for a review of the Protective Commissioner’s decision under subsection (5) whether or not to approve of the giving or withdrawal of an authorisation under this section.

(7) An application for review under subsection (6) may be made by:

(a) the person managing the protected person’s estate, or

(b) the protected person, or

(c) the spouse of the protected person, or

(d) any other person who, in the opinion of the ADT, has a genuine interest in the matter to which the Protective Commissioner’s decision relates.”

133 It is pursuant to section 23A(2) that the financial trial has been conducted to date. The written submissions of counsel for the Protective Commissioner included this following statement:

“While the amount allocated to [GHI] under the current arrangements cannot be sustained, there is no reason to believe that the Commissioner will limit the discretion already granted to [GHI]. The result will be that [GHI] will continue to be free to manage his day to day living expenses but be required to obtain approval from the Commissioner when he wishes to make unusually large purchases.”

134 As well, as counsel for the Commissioner’s submissions pointed out,

MB v Protective Commissioner

JS v Protective Commissioner & Anor

1. Application dismissed.

2. Costs of the plaintiff, and costs of the defendant on an indemnity basis, be paid, or retained, as the case may be, out of the estate of the plaintiff.

**********

Actions

Download as PDF Download as Word Document

Citations

Re GHI (a protected person) [2005] NSWSC 581

Most Recent Citation

XYZ v State Trustees Ltd [2006] VSC 444

Cases Citing This Decision

41

Mao v AMP Superannuation Ltd [2018] NSWCA 72

Guthrie v Spence [2009] NSWCA 369

Cases Cited

6

Statutory Material Cited

4

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

EMG v Guardianship and Administration Board of Victoria [1999] NSWSC 501

New South Wales Crime Commission v Murchie [2000] NSWSC 591

CITATION:	Re GHI (a protected person) [2005] NSWSC 581
HEARING DATE(S):	10/5/05-13/5/05 & 1/6/05
JUDGMENT DATE :	27 June 2005
JURISDICTION:	Equity Protective List
JUDGMENT OF:	Campbell J
DECISION:	Order not made

CATCHWORDS:	MENTAL HEALTH - declaration or finding of incapacity - application for revocation of order for management of estate of plaintiff - meaning of "capable of managing his or her own affairs" - what count as "affairs" - relevance of willingness to take advice to capacity to manage own affairs - relevance of vulnerability to exploitation to capacity to manage own affairs - onus of proof - standard of proof - types of matters appropriate to take into account in deciding whether standard of proof has been met - whether any discretion exists concerning making of an order
LEGISLATION CITED:	Evidence Act 1995 Mental Health Act 1958 Protected Estates Act 1983 Social Security Act 1991 (Cth)
CASES CITED:	Re C (TH) and the Protected Estates Act [1999] NSWSC 456 CF v TCML [1983] 1 NSWLR 138 DML v LMR (Powell J 20 June 1991 unreported) BC9101874 EMG v Guardianship and Administration Board of Victoria [1999] NSWSC 501 G v G (No 2) (Powell J, 7 February 1989, unreported) BC 8902591 H v H (Young J, 20 March 2000, unreported) M and the Protected Estates Act 1983 (1988) 12 NSWLR 96 McD v McD [1983] 3 NSWLR 81 N v N (Hodgson J, 13 March 1997, unreported) NSW Crime Commission v Murchie [2000] NSWSC 591; (2000) 49 NSWLR 465 PY v RJS [1982] 2 NSWLR 700 P v R [2003] NSWSC 819
PARTIES:	GHI (a protected person) - Plaintiff Office of the Protective Commissioner - Defendant
FILE NUMBER(S):	SC 66/03
COUNSEL:	M Bradford - Plaintiff S Balafoutis - Defendant
SOLICITORS:	Uther Webster & Evans - Plaintiff Office of the Protective Commissioner - Defendant