Re R

Case [2014] NSWSC 1810 19 December 2014

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Supreme Court

New South Wales

Medium Neutral Citation: Re R [2014] NSWSC 1810
Hearing dates: 10, 11 and 12 June 2014
Decision date: 19 December 2014
Jurisdiction: Equity Division - Protective List
Before: White J
Decision:
Refer to para [106] of judgment

Catchwords: MENTAL HEALTH - management and administration of property - general matters - financial management - NSW Trustee and Guardian Act 2009 (NSW) s 86 - application for revocation of financial management order - whether circumstances of case warrant revocation - whether test of capacity to manage one's affairs involves consideration of subjective circumstances of individual in question or objective assessment of ability to deal competently with "ordinary routine affairs of man" - held test involves consideration of subjective circumstances - application granted
Legislation Cited: Protected Estates Act 1983 (NSW)
NSW Trustee and Guardian Act 2009 (NSW)
Mental Health Act 1958 (NSW)
Cases Cited: Re C (TH) and the Protected Estates Act [1999] NSWSC 456
H v H (Supreme Court of New South Wales, Young J, 20 March 2000, unreported)
In the matter of Case (1915) 214 NY 199
PY v RJS [1982] 2 NSWLR 700
Re D [2012] NSWSC 1006
P v R [2003] NSWSC 819
PB v BB [2013] NSWSC 1223
M and the Protected Estates Act 1983 (1988) 12 NSWLR 96
Re C [2012] NSWSC 1097
Category: Principal judgment
Parties: R (Plaintiff)
NSW Trustee and Guardian (Defendant)
Representation: Counsel:
N Kirby (Plaintiff)
S Balafoutis with R Clark (Defendant)
Solicitors:
Otto Stichter & Associates (Plaintiff)
NSW Trustee & Guardian (Defendant)

File Number(s): 2012/338029

Judgment

HIS HONOUR: This is an application for revocation of a financial management order.

The plaintiff is a 58 year-old man. He and his then wife ("B") were involved in a motor vehicle accident on 2 January 2004 as a result of which the plaintiff suffered injuries, including a severe injury to his brain. He was in the intensive care unit on a life support machine for some 15 days and unconscious for 13 days. The period of post-traumatic amnesia was greater than 100 days.

On 25 May 2006 the Court declared that the plaintiff was incapable of managing his affairs and ordered that his estate be subject to management under the provisions of the Protected Estates Act 1983 (NSW). The estate of the plaintiff was committed to the Protective Commissioner. Evidence before the court in 2006 included that the plaintiff then had significant cognitive and behavioural disabilities, poor short-term memory, poor planning ability and required prompting from others with his activities. His general practitioner expressed the opinion that his condition was permanent, although there might be some slow and gradual improvement. A neuropsychological assessment in April 2005 noted that in addition to cognitive impairment the plaintiff had suffered a substantial post-injury personality change indicative of impaired control and regulation of emotions and behaviour and with a persistent paranoid ideation.

The plaintiff brought proceedings for damages arising from his injuries. The proceedings were settled. Pursuant to the settlement the plaintiff received $3.75…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Re R

Details

AGLC: Re R [2014] NSWSC 1810
Case: [2014] NSWSC 1810
Decision Date: 19 December 2014

CaseChat Overview and Summary

The case of Re R involved an application by R for the revocation of a financial management order. The order, made under the NSW Trustee and Guardian Act 2009, was based on an assessment that R was unable to manage their own financial affairs. The application was heard and determined by the Supreme Court of New South Wales. The central legal issue was whether the test for capacity to manage one’s own affairs required a subjective assessment of the individual's circumstances or an objective evaluation of their ability to deal with ordinary routine affairs.

The court examined the statutory framework provided by section 86 of the Act, which mandates that a financial management order can be revoked if the individual can now manage their own affairs. The court considered whether the test for capacity to manage one's affairs was inherently subjective, taking into account the individual's unique circumstances, or whether it required an objective assessment of the ability to handle routine financial matters competently. The court concluded that the test for capacity involves a subjective assessment, focusing on the individual's circumstances and their ability to manage their affairs within those parameters. Given this interpretation, the court found that the application for revocation was warranted, and thus granted the application.

In light of the findings, the court ordered the revocation of the financial management order previously made in respect of R. This decision allowed R to regain control over their financial affairs, subject to the court's satisfaction that they could manage those affairs competently within their current circumstances. The court’s decision underscored the importance of a nuanced approach to determining capacity, recognising the individual's personal context in the evaluation process.

Orders